Author Topic: Final Charge Conference and Instructions  (Read 8593 times)

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Offline cboldt

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Re: Final Charge Conference and Instructions
« Reply #15 on: July 11, 2013, 09:14:11 AM »
West is arguing for an instruction that following is not illegal.  Nelson asks for case law on the point.  West says it is an accurate statement of the law, more by absence than affirmative case.  The state is going to argue or insinuate that following is some sort of bad act, and it would be misleading and confusing to the jury if they are not told that following is not an illegal act.  The instruction is a reaction to the state's argument, and could lead to an improper verdict if the jury is not told, by the court, that it not illegal to follow somebody.

Mantei objects.  Following is a factor that goes to defendant's state of mind.  Mantei says the legality of following is a fact at issue.  Nelson says something about West asking Mantei to prove a negative (but actually, she is asking West to prove a negative).  Nelson will not allow the language proposed by the defense (that following is legal).

West says she has continually disagreed with the court after it has ruled, and tells West to stop it.  If she has made a mistake, West can appeal.

West says he will move orally in limine that the state be ordered not to insinuate that following is illegal.  Nelson says does West want a transcript of the proposed close?  No.  Nelson denies the motion in limine.  So, the state can insinuate that following is illegal or provocative.  Another reversible error.

Offline annoyedbeyond

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Re: Final Charge Conference and Instructions
« Reply #16 on: July 11, 2013, 09:14:58 AM »
Finally, West points out that if it's not illegal, it's legal.

I'm seriously considering saying bad words. I should step away.

Offline cboldt

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Re: Final Charge Conference and Instructions
« Reply #17 on: July 11, 2013, 09:16:39 AM »
Are you an expert on 3rd degree murder with lesser included offense of child abuse, cbolt?  Is it a really cuckoo theory?

I am not.  Have never reviewed those statutes in light of case law as they pertain to jury instructions for 2nd degree murder.  I did read (IIRC) Hornsby's piece on enhancement for death of a child (different from your question), but just read it, didn't think about it, didn't research it.

Considering the sources (Nelson of Mantei) there is a good chance the theory is cuckoo.

Offline annoyedbeyond

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Re: Final Charge Conference and Instructions
« Reply #18 on: July 11, 2013, 09:20:18 AM »
I am not.  Have never reviewed those statutes in light of case law as they pertain to jury instructions for 2nd degree murder.  I did read (IIRC) Hornsby's piece on enhancement for death of a child (different from your question), but just read it, didn't think about it, didn't research it.

Considering the sources (Nelson of Mantei) there is a good chance the theory is cuckoo.

It could work, it's creative, but it's cuckoo. That the state felt they needed to not let it out until late last night buried in all the other stuff tells you that it's cuckoo.

If they'd brought this crap up earlier it would've opened all sorts of other doors--like TM's fighting.


Offline RickyJim

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Re: Final Charge Conference and Instructions
« Reply #19 on: July 11, 2013, 09:20:51 AM »
What is this circumstantial evidence jury instruction they are arguing about?

Offline cboldt

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Re: Final Charge Conference and Instructions
« Reply #20 on: July 11, 2013, 09:22:39 AM »
Finally, West points out that if it's not illegal, it's legal.

West's argument was a good one.  It parallels Gibbs quite closely.  There is no law against mooning or making racially based insults and taunts, therefore mooning and racial taunts are not provocation.  That said, the Gibbs instruction didn't say anything about mooning and making racial insults.  Now, with the Gibbs curative part out of the scene (because the instruction as to provocation has been removed), there is a need for some sort of curative language to make the meaning of "provoke" clear.

Mantei more or less admitted that the state was going to argue that following is provocative, and if left uncorrected, that argument may mislead the jury.  West asked the court to either instruct the jury, or limit the state on its closing argument to not suggest that following is provocative.  The court rejected the argument.  Then the court admonished West for arguing after the court has ruled.

That won't be the last error that Nelson makes in this case.

Offline annoyedbeyond

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Re: Final Charge Conference and Instructions
« Reply #21 on: July 11, 2013, 09:24:48 AM »
What's the actual legal definition of "provocation" as used in this case btw? I could look it up I suppose.


Offline cboldt

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Re: Final Charge Conference and Instructions
« Reply #22 on: July 11, 2013, 09:25:46 AM »
What is this circumstantial evidence jury instruction they are arguing about?

More or less that circumstantial evidence is not to be given the same weight as direct evidence.  It's a fairly big issue in Fla. law circles, including the standard of review for denial of JOA when the case turns on a piece of circumstantial evidence.

Nelson rules against giving the instruction.

Offline cboldt

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Re: Final Charge Conference and Instructions
« Reply #23 on: July 11, 2013, 09:26:59 AM »
What's the actual legal definition of "provocation" as used in this case btw? I could look it up I suppose.

Bassicaly, either commit assault or commit battery.  Provocation is the threat of use of force coupled with apparent means to carry out the threat, or actual use of unlawful force.

Offline annoyedbeyond

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Re: Final Charge Conference and Instructions
« Reply #24 on: July 11, 2013, 09:39:23 AM »
I'd really like to know what George is finding so fascinating up on the ceiling.


West just announced that the cases Mantei gave the court are wrong.

Offline annoyedbeyond

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Re: Final Charge Conference and Instructions
« Reply #25 on: July 11, 2013, 09:42:07 AM »
About 8-10 minutes ago Diana Tennis tweeted that JDN was finding details in something that were helpful to West.

I was on the phone and missed it. What?

Offline cboldt

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Re: Final Charge Conference and Instructions
« Reply #26 on: July 11, 2013, 09:47:48 AM »
I think the state is trying to import "great bodily harm" language from battery cases onto the "fear" element in self defense.

West asks, has the court read those cases?  Nelson says No.  West says the case synopses provided by the state is incorrect.  Those are not self defense cases, and do not reflect the contents of a self defense instruction.

Importing the definition into a self defense instruction risks misleading the jury into considering the actual injuries.  But everybody knows what "great bodily harm" means in the context of this case.  Experts in the case also testified that the impacts with concrete creates a risk of serious injury.

West goes on to describe that just because Zimmerman didn't die, just because his skull wasn't fractured, doesn't mean he didn't have that reasonable fear at the time.

This is treading on very thin ice, by this court, to include this.

Mantei says the distinction between self defense and offenses isn't the point.

Nelson interrupts Mantei.  You don't have to have ANY injury to be in fear.  Back to Mantei, it's about Zimmerman's fear.  If his fear is he is only going to get a fist beating, then he doesn't fear great bodily harm (that's BS too, more people murdered by fists than assault rifles) ... Nelson stops Mantei.  She is ready to rule but gives Mantei more time to argue.  The state does not get it's special instruction in this regard.

Mantei says the provocation issue is still open (Huh?).  Nelson adds that the 3rd degree felony murder is still open.

Offline RickyJim

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Re: Final Charge Conference and Instructions
« Reply #27 on: July 11, 2013, 09:52:34 AM »
Won't the jury consider whether or not self defense holds first?  If they find it doesn't then they consider second degree murder, manslaughter, etc.?

Offline RickyJim

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Re: Final Charge Conference and Instructions
« Reply #28 on: July 11, 2013, 09:55:26 AM »
Court resumes at 1 PM.

Offline annoyedbeyond

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Re: Final Charge Conference and Instructions
« Reply #29 on: July 11, 2013, 09:55:51 AM »
recess until 1, then they'll take up the third degree felony murder and then Bernie will begin his close.

 

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