Author Topic: Judge Nelson Reads Self-Defense Instruction to Jury  (Read 7033 times)

0 Members and 1 Guest are viewing this topic.

Offline DebFrmHell

  • Hero Member
  • *****
  • Posts: 954
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #15 on: June 21, 2013, 09:35:53 AM »
Are lesser charges automatically included?  Can the Defense argue that if the State can't prove 2nd Degree, it shouldn't be given other lower options?

Offline cboldt

  • Hero Member
  • *****
  • Posts: 1262
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #16 on: June 21, 2013, 09:54:15 AM »
Are lesser charges automatically included?  Can the Defense argue that if the State can't prove 2nd Degree, it shouldn't be given other lower options?

It's not automatic.  The state will have to request jury instructions include pages that cover the lesser included offenses.  Defense can argue against it, and would make the same arguments it makes in a motion to acquit, namely lack of evidence to support specific elements in each of the charges (that admits that argument).

The justified use of deadly force affirmative defense trumps everything.

Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #17 on: June 21, 2013, 10:14:42 AM »
It's not automatic.  The state will have to request jury instructions include pages that cover the lesser included offenses.  Defense can argue against it, and would make the same arguments it makes in a motion to acquit, namely lack of evidence to support specific elements in each of the charges (that admits that argument).

The issue is moot unless the judge denies the motion to acquit.

Are suggesting that a judge would buy that there is some evidence of M2, but absolutely no evidence of manslaughter?

If I were the defendant in this case, I don't think I would gamble that a jury that would convict on manslaughter, wouldn't as readily convict on M2 if they had no other option.

Here's the citation from the Florida Rules of Criminal Procedure (p. 172).

Quote
RULE 3.510. DETERMINATION OF ATTEMPTS AND LESSER INCLUDED OFFENSES

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:

(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense; or

(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

Offline leftwig

  • Hero Member
  • *****
  • Posts: 532
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #18 on: June 21, 2013, 11:20:19 AM »
I took CBoldt's post to mean that if the state doesn't get past the hurdle of showing enough evidence of M2 and the judge agrees on a motion to acquit for M2, the state can motion for lesser charges to be considered and the defense can make their arguments against those lesser charges.  I think the later statement was an analysis that if the judge rules to acquit on M2 and the reason she give is justified use of force (meaning state didn't disprove defenses argument), then that same justified use of force argument would cover any lesser charge the state could bring. 

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #19 on: June 21, 2013, 11:29:18 AM »
This instruction, which has been "customized" for this case, contains these two sentences
Quote
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent (1) imminent death or great bodily harm to himself or another or (2) the imminent commission of aggravated battery against  himself or another.

..........................

If the defendant was not engaged in an unlawful activity and was attacked in any place where he  had a right to be, he  had no duty to retreat and had the right to stand his  ground and meet force with force, including deadly force, if he  reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.
What confuses me is
  • the first gives Zimmerman the right to use deadly force without a mention of the duty to retreat, if he believes it necessary to prevent death or great bodily harm.  Part (2) of it seems redundant.  The second, after the ellipsis, requires him to retreat (if possible) if he was committing a crime or was in a place he had no right to be before using deadly force.  They seem contradictory in the case Zimmerman was committing a crime or was in a place he had no right to be, and redundant in the opposite case.
  • Wouldn't the prosecution have to file an additional charge to cover the unlawful activity mentioned in the second sentence, similar to what they would have to do if .041(1) were being used?
  • Who would object if the second sentence were excised from the jury instruction?



Offline cboldt

  • Hero Member
  • *****
  • Posts: 1262
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #20 on: June 21, 2013, 11:39:57 AM »
I took CBoldt's post to mean that if the state doesn't get past the hurdle of showing enough evidence of M2 and the judge agrees on a motion to acquit for M2, the state can motion for lesser charges to be considered and the defense can make their arguments against those lesser charges.  I think the later statement was an analysis that if the judge rules to acquit on M2 and the reason she give is justified use of force (meaning state didn't disprove defenses argument), then that same justified use of force argument would cover any lesser charge the state could bring.

Correct, except:

- the state can move to have the jury instructed on lesser included charges, independent of getting past or not getting past a motion for judgment of acquittal.

- that as to the justified use of force, that "finding" by a jury (meaning that the "trumps" effect isn't available just to a judge) trumps M2 and any lesser charge.  If there is a "finding" of justified use of force, it doesn't matter WHAT the underlying criminal charge is.

Scare quotes around "finding," because the jury decision doesn't "find" self defense, rather it finds that the state did not disprove self defense beyond a reasonable doubt.  If the jury thinks there is a (small) chance it was self defense, then the jury is obliged to acquit.

A judge is obliged to use a similar standard of proof when ruling on a motion for judgment of acquittal, but the legaleze is phrased differently.

I brought up the arguments that would be used in a motion for judgment of acquittal, because those same arguments might be useful to argue against allowing jury instructions for any offense.  The argument of evidence v. element has to to ring of "no evidence for that element."

The Rule blockquoted by NMNM is what I am rephrasing, so between the rule itself and assorted remarks, you should be able to figure it out.

Offline TalkLeft

  • Administrator
  • Hero Member
  • *****
  • Posts: 1125
  • Rate Post +0/-0
    • TalkLeft: The Politics of Crime
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #21 on: June 21, 2013, 12:32:23 PM »
At today's hearing on excluding words, the state's attorney said their theory of the case is that Zimmerman confronted Martin. The judge repeated that and said "that's their whole case" and said they could say it.

Note, though, that he never said Zimmerman physically confronted Martin. The state was careful in its affidavit to say "Zimmerman confronted Martin and a struggle ensued."

At the April 20 bond hearing, Gilbreath said he had no evidence Zimmerman physically confronted Martin as opposed to initiating the verbal encounter.

Witness 8 said it was Martin who initiated the verbal encounter. State's Attorney Guy today said they have evidence Zimmerman initiated the encounter, but he didn't specify which one: the verbal or physical. BDLR has hinted before their evidence is the statement of one of the sisters (who also said she couldn't see because she didn't have her contacts in). The sister went from seeing two figures fighting, to seeing nothing only vaguely hearing something (she got a glance of running, but more heard it than saw it) to seeing arms flailing. It was dark and raining.

Yes, if there is testimony at trial that Zimmerman provoked Martin, the judge could add that to the instruction. But she said she was reading the entire instruction which had already been personalized and Bernie didn't object. So as of now, I don't see any reason to think the court plans on including the aggressor portion.

Both sides submit proposed jury instructions in advance of trial. She may have had the parties submit them to chambers rather than file them. She may have had a conference with attorneys on them.  I don't know how Florida judges handle their jury instruction conferences, but I would think that the only thing that would have to be on the record in open court is her ruling on objections to the court's final proposed instructions at the end of the trial. Since there is no record on the docket of either party submitting instructions, it may be they were not filed with the clerk but submitted directly to the court. The proposed instructions would include references to anticipated trial evidence that may or may not accurately reflect the actual evidence at trial, so she may not have wanted them public.

There are a lot of things not on the docket that we know the court reviewed.
« Last Edit: June 21, 2013, 12:34:27 PM by TalkLeft »

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #22 on: June 21, 2013, 12:32:40 PM »
Here is my proposal for a clear, non redundant jury instruction, stripped or irrelevancies to replace the one Judge Nelson read.  If we can get agreement on it here, I'll email the final version to the court clerk.    8)

You are to find George Zimmerman was justified in using deadly force against Trayvon Martin if and only if you find all of the following are reasonable:
  • The relative physical abilities and capabilities of Martin and Zimmerman were such that Zimmerman could not overcome or escape from Martin otherwise.
  • Zimmerman's belief in the danger he was in was sincere and would have been shared by any reasonably prudent and cautious person in the same situation.  It is unnecessary to consider the reality of the danger.
  • Zimmerman believed himself to be in imminent danger of death or great bodily harm that could only be avoided by shooting Martin.

Offline redstripe

  • Full Member
  • ***
  • Posts: 226
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #23 on: June 21, 2013, 12:42:00 PM »
This instruction, which has been "customized" for this case, contains these two sentencesWhat confuses me is
  • the first gives Zimmerman the right to use deadly force without a mention of the duty to retreat, if he believes it necessary to prevent death or great bodily harm.  Part (2) of it seems redundant.  The second, after the ellipsis, requires him to retreat (if possible) if he was committing a crime or was in a place he had no right to be before using deadly force.  They seem contradictory in the case Zimmerman was committing a crime or was in a place he had no right to be, and redundant in the opposite case.
  • Wouldn't the prosecution have to file an additional charge to cover the unlawful activity mentioned in the second sentence, similar to what they would have to do if .041(1) were being used?
  • Who would object if the second sentence were excised from the jury instruction?

I actually think it would have been helpful to the defense if the instructions contained a definition of what the duty to retreat actually entails.  In most states, to the best of my knowledge, there is only a duty to retreat if there is a reasonable chance of escaping without incurring serious bodily injury or death.  Usually by the time someone is physically assaulting you, attempting to run away will just expose you to being attacked from behind.  So in reality, even if Zimmerman wasn't physically restrained by TM, the fact that (1) TM was battering him and showed no signs of relenting and (2) the fact that Zimmerman stood almost no chance of outrunning TM means that the duty to retreat would be a non-factor.  What's disconcerting about the inclusion of the stand your ground rule (particularly the "illegal presence" exception) without any context regarding the rule that it modifies is that it seems to open the door for the prosecution to utilize the oft-repeated media trope that George Zimmerman's brief pursuit/surveillance of Martin was an illegal act that somehow negated his right to self defense.

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #24 on: June 22, 2013, 07:30:08 PM »
I am confused about how wide reaching a jury judgment that Zimmerman was justified in using deadly force might be.  Would it obliterate all the lesser included charges in Murder 2?  I am, in particular, interested in culpable negligence which is FL 784.05.

(2) Whoever, through culpable negligence, inflicts actual personal injury on another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

I watched a video of Florida criminal attorney Richard Hornsby being interviewed by Joy Regan(sp?).  I can't find the video now.  He predicted at the end that Zimmerman would be convicted of culpable negligence.  In the Gibbs case, Joelle Gibbs was charged with 2nd degree murder but in the end was convicted only of culpable negligence, but in that case the jury rejected her self defense claim.

 

Site Meter
click
tracking