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State v. George Zimmerman (Pre-Trial) => Zimmerman Legal Team => Topic started by: RickyJim on July 08, 2012, 03:43:35 PM

Title: Can O'Mara Challenge Probable Cause Affidavit?
Post by: RickyJim on July 08, 2012, 03:43:35 PM
Can O'Mara now challenge the Affidavit as lacking sufficient probable cause for a charge of second degree murder and ask that the charge be dismissed?  Is a document like that sufficient to indict somebody for a serious crime in other states besides Florida?  I admit I never heard of this kind of indictment before and thought a preliminary evidence hearing or grand jury was needed to indict.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 08, 2012, 04:01:34 PM
O'Mara has requested a statement of Particulars, which is supposed to me a more specific statement of the evidence in support of the charge.  He needs to have something that represents "finality" or all of the evidence that the state has, before he can say that the state's evidence doesn't support the charge.

Technically, he's not attacking just the affidavit, but instead, he is attacking the evidence.  The nature of the motion to dismiss for failure to state the charge is "Even if the state proves A, B, and C, those findings don't make the charge."  He'd likely assert that there is no evidence that establishes depraved mind.  The statement of particulars would facilitate this, as the state would be on the record as saying what pieces of evidence, if proven, -do- establish depraved mind.

If the state changes the charge to manslaughter, then the state is obliged to also assert that Zimmerman's actions were not in self defense.  IOW, the state would have to recognize the self defense elements in its charging document, and explain the countervailing evidence that it will prove so that self defense will fall.  The reason the state has to put that i for manslaughter, and not for murder, is that the manslaughter criminal statute recites, "[killing] without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder ..."  The murder criminal statute does not point back to Chapter 776, and this is why a charge of murder does not have to negate the justified use of force provisions of Chapter 776.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Lousy1 on July 08, 2012, 04:07:00 PM
Good question RJ.
O'Mara has requested a statement of Particulars, which is supposed to me a more specific statement of the evidence in support of the charge.  He needs to have something that represents "finality" or all of the evidence that the state has, before he can say that the state's evidence doesn't support the charge.
.


Thank you both !
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 08, 2012, 09:45:20 PM
As best as I can figure, under Florida procedure, a "probable cause affidavit" only is require to establish probable cause to support the arrest. Any challenge would typically be made at the first court hearing.  As O'Mara did not raise a challenge, that is waived.

In any case, a successful challenge to a probable cause affidavit would not result in dismissal of the charges -- it would only result in release of a defendant from custody, with the prosecution still free to pursue its case.  I would also assume that a Florida prosecutor could simply amend an affidavit to add extra details & rearrest  the defendant.

Probable cause equates to "reasonable suspicion" -- it does not require negating possible defenses. 

A Statement of Particulars requires the prosecution to specify "as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney."  See http://www.joffelaw.com/state-rules/3-140.html 

However, it does not appear that Florida law would require that to be much more specific than the charging document itself.   I would actually expect that the "Statement" would be less detailed than the probable cause affidavit.   

The Statement of Particulars procedure is found under rule section governing indictments & informations, so it seems to be a form of pleading rather than discovery.  The same rule also specifies:

Quote
No indictment or information, or any count thereof,
shall be dismissed or judgment arrested, or new trial granted on account of any defect in the
form of the indictment or information or of misjoinder of offenses or for any cause
whatsoever, unless the court shall be of the opinion that the indictment or information is so
vague, indistinct, and indefinite as to mislead the accused
and embarrass him or her in the
preparation of a defense or expose the accused after conviction or acquittal to substantial
danger of a new prosecution for the same offense.

I think the provision is really more appropriate to charges that require very specific allegations or where there is difficulty nailing down dates and times. One example would be Shellie Zimmerman's perjury charge -- she is charged with lying but the pleading didn't set forth the exact statements asserted to be lies -- a Statement of Particulars could be used to force the prosecution to be more specific there.  (General rules of pleadings in perjury cases in most jurisdictions do require more specificity, though perhaps in Florida the availability of the Statement of Particulars is seen to fill that gap).

Another place where you might see this used effectively would be a situation where the defendant is charged with having committed crimes at some unspecified time in the past. This type of thing comes up sometimes in sex abuse or molestation cases -- the adult is alleged to have molested a child on multiple occasions, but the pleading is vague as to date. A Statement of Particulars could be used to narrow the time frame and may also reveal a defense based on statute of limitations.

Given that the date & time is well known in this case I am  not sure what benefit the defense will get from the statement.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Lousy1 on July 08, 2012, 09:57:56 PM
Thanks also.
 Does all  this mean that anyone charged with a BS set of facts\inferences has no other option than trial?
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 08, 2012, 11:25:50 PM
As far as I can tell, in Florida there is no real way to challenge sufficiency of evidence pre-trial where an Information is filed.

Most other states & federal jurisdiction would require a preliminary hearing after an Information, or a Grand Jury Indictment.  Whether or not a Grand Jury Indictment can be challenged varies as well.  Also the quality of evidence required at preliminary hearings varies as well -- in some states hearsay is allowed and the preliminary hearing could simply be the police officer showing up and reciting his conclusions. 

Florida also seems to be unique in the availability of the pre-trial stand your ground hearing, especially as the defendant is allowed to appeal any adverse ruling.  The procedure essentially allows the defense two bites of the apple -- they can present their case before a judge, get an appellate court ruling on it, and if they don't win via that route they will be able to present the same issues to a jury, with a significantly lessened standard of proof the 2nd time around.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 09, 2012, 05:32:27 AM
As far as I can tell, in Florida there is no real way to challenge sufficiency of evidence pre-trial where an Information is filed.

Defendant can file a pre-trial Motion to Dismiss under Rule 3.190(c)(4) (http://www.joffelaw.com/state-rules/3-190.html).  Rule 3.190 provides for Motion to Dismiss whether the charge is presented via indictment (a charge from a grand jury) or information (a charge from the state attorney).  I was easily able to find examples of Motions to Dismiss an information, filed in Florida criminal courts.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: RickyJim on July 09, 2012, 07:27:57 AM
Defendant can file a pre-trial Motion to Dismiss under Rule 3.190(c)(4) (http://www.joffelaw.com/state-rules/3-190.html).  Rule 3.190 provides for Motion to Dismiss whether the charge is presented via indictment (a charge from a grand jury) or information (a charge from the state attorney).  I was easily able to find examples of Motions to Dismiss an information, filed in Florida criminal courts.

I guess the relevant portion is :
However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
The facts on which the motion is based should be alleged specifically and the motion sworn to.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Lousy1 on July 09, 2012, 09:23:28 AM
I guess the relevant portion is :
However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
The facts on which the motion is based should be alleged specifically and the motion sworn to.

If the defense chooses to neither 'admit or deny' certain material facts in dispute can they still move for dismissal. Or do they need to agree to all points of the charging document and therefore concede debatable issues if the charges are not dismissed?


Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 09, 2012, 09:43:55 AM
If the defense chooses to neither 'admit or deny' certain material facts in dispute can they still move for dismissal. Or do they need to agree to all points of the charging document and therefore concede debatable issues if the charges are not dismissed?

The defense can focus on what it finds to be the missing element (depraved mind) and for purposed of the motion, admit things like Zimmerman got out of his truck, etc. (and all other facts/evidence the state says proves depraved mind), and argue that those stipulated facts do not produce a finding of depraved mind.  All fact disputes are resolved in favor of the state, so the defense can leave all sorts of fact disputes.  The mental exercise is something in the nature of "even if everything the state says is true, it doesn't make the offense," and/or "the state has inadequate evidence of XYZ element."
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 09, 2012, 08:29:23 PM
3.190 (c) is the equivalent of a summary judgement motion -- the critical language is:

Quote
There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

(Obviously the other sections, dealing with double jeopardy, immunity, or pardon do not apply)

In this case, there clearly are material disputed facts, so I cannot see any possibility of such a motion being granted.   

The strength of the evidence would not come into play on such a motion -- only the issue of whether or not the facts are in dispute. 

Whenever intent is an element of a criminal offense, that is almost always proven via an inference to be drawn from the evidence  (that is, by circumstantial evidence) as there can never be direct evidence as to what a person is thinking.  No one can read minds.  In some cases there might be evidence in the form of a statement or admission -- but most of the time it is a matter of an inference drawn from the overall circumstances. The prosecution makes an argument based on surrounding circumstances.

For example, you might have a case where person A shoots their spouse B. A says it was an accident; the gun went off while being cleaned. But the prosecution has evidence that A was having an affair and bought a large life insurance policy on B a month before the shooting. So the prosecutor uses that evidence (affair, life insurance policy) to establish that A had a pre-existing motive to kill B, and uses that motive to argue that the killing was murder.

In this case, the undisputed facts  include:  While observing Martin, GZ stated "those a$$holes always get away".    When seeing Martin run, GZ uttered the words: "f***ing punk".  GZ got out of his truck and walked or ran after Martin. (heard and admitted on tape).  GZ was carrying a loaded gun when he got out of his truck. 

The other matters are facts that are in dispute.  Witnesses can establish that there was a physical struggle and some shouting or screaming, but the issue of who started the fight, how it ended, and who was doing the screaming remains in dispute.   GZ has physical injuries that can be documented, but the cause and extent of those injuries remains in dispute.  GZ has made statements, but the veracity of those statement remain in dispute.
 
In a civil summary judgment motion, the procedure is to list out all the undisputed facts -- and then submit the motion to the judge.   I don't see how the undisputed facts in this case would lead to a dismissal -- you are still left with a homicide and no *undisputed* facts establishing that the homicide was justifiable.

Of course, the fact that the facts are disputed also means that GZ may very well win at trial -- but a motion under 3.190 does not go to weight of evidence.

I'd be very interested in seeing any case law in Florida showing a 3.190 motion being granted in a homicide case where the issue was the intent of the perpetrator.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: TalkLeft on July 09, 2012, 08:55:37 PM
I'd be very interested in seeing any case law in Florida showing a 3.190 motion being granted in a homicide case where the issue was the intent of the perpetrator.

Expy, I don't think you'd find it. There is case law that says the Judge cannot reduce a second degree murder charge to manslaughter before trial when intent is an issue, because only the jury can decide intent.
See the 2010 Yaquibie case (http://www.talkleft.com/zimm/yaquibie1.pdf):

Quote
We also reverse  the order granting Yaqubie's Rule 3.190(c)(4) motion to dismiss which reduced the
original second degree murder charge filed against him to a charge of manslaughter.

...he claimed below that because he was acting in self-defense, ill will, hatred, spite, or evil intent could not be demonstrated requiring either dismissal of the second degree murder charge against him or reduction of that charge to manslaughter. The court below agreed with Yaqubie, concluding that the facts leading up to Camacho's death were "insufficient as a matter of law to prove the evil intent or ill will necessary to rebut the defendant's claim of self-defense to the charge of second-degree murder."
We cannot agree with this determination.

ntent or state of mind is not an issue to be decided on a motion to dismiss under Rule 3.190(c)(4). Instead, it is usually inferred from the circumstances surrounding the defendant's actions. Since
the trier of fact has the opportunity to weigh the evidence and judge the credibility of the witnesses, it should determine intent or state of mind.

He had better luck on his Stand Your Ground Motion -- although all he got was an evidentiary hearing:

Quote
The court below, applying the standard enunciated in Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009), essentially treated Yaqubie's immunity claim as an affirmative defense and denied the motion to dismiss because "material facts [were] at issue in the case." Yaqubie claims that the court below applied the incorrect standard and should have applied the standard enunciated in Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008), to determine whether a preponderance of the evidence shows that he is immune from prosecution under section 776.032. We agree with Yaqubie and therefore grant the instant writ.

and

Quote
In Peterson, the First District Court of Appeal decided that section 776.032 is a true immunity provision, not merely an affirmative defense, which requires a trial court to adjudicate disputed fact issues rather than passing them on to a jury as it would an affirmative defense:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion
simply because factual disputes exist....The petition for writ of prohibition is, therefore, granted with this matter remanded to the court below for an evidentiary hearing applying the standard enunciated in
Peterson.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Lousy1 on July 09, 2012, 08:56:24 PM
Why is the intent of GZ relevant. Lets, for argument sake, concede that his intention was to kill TM after enjoying a vigorous walk.

That still does not release the state of its requirement to prove ( BRD) that Zimmerman was not covered by SYG.  Unless the state can prove any of the elements that guarantee a SYG acquittal Zimmerman walks.

IMO to this point the state has not presented any evidence - undisputed or not - that would negate SYG immunity.

Is the mere fact that issues are in dispute decisive?

Conversly is the salient question 'has the state produced sufficient evidence (undisputed or not ) to:

a. Establish the requirements of the charging document?
b. Disqualify a SYG defense.

As I understand your explanation I could be charged murdering someone who was 2500 miles away from me at the time of his death based only on the fact I didn't like them ;airplanes exist and some passengers  when presented with my voice samples, have differing opinions about my possible presence on various flights.

I would have no recourse except trial?
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: 11Rand on July 09, 2012, 09:30:33 PM
While observing Martin, GZ stated "those a$$holes always get away".    When seeing Martin run, GZ uttered the words: "f***ing punk".

I have a question about this. Without GZ's above statements from the NEN call, would the state have even tried to charge him with 2nd degree murder? Yes, the state could still argue GZ “profiled” TM as a criminal and he “followed” and “confronted” TM, and a “struggle ensued.” But would those elements be enough with regard to “depraved mind”?
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 09, 2012, 11:24:05 PM
Expy, I don't think you'd find it. There is case law that says the Judge cannot reduce a second degree murder charge to manslaughter before trial when intent is an issue, because only the jury can decide intent.
See the 2010 Yaquibie case (http://www.talkleft.com/zimm/yaquibie1.pdf):

Thanks. That's very much in line with what I thought. 

Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 09, 2012, 11:54:20 PM
I have a question about this. Without GZ's above statements from the NEN call, would the state have even tried to charge him with 2nd degree murder? Yes, the state could still argue GZ “profiled” TM as a criminal and he “followed” and “confronted” TM, and a “struggle ensued.” But would those elements be enough with regard to “depraved mind”?

There's always a judgment call to be made, but my guess is that those statements played a significant part in the prosecution's decision.   They clearly evidence a sense of anger and ill-will toward the class of people to which GZ seemed to assume that TM belonged (potential burglars) at the time he made the call.  Without those words, I'm not sure what circumstances the prosecution would have drawn on to support that charge.

To be clear:  I am not saying that those words are enough by themselves, or that the "sense of anger and ill-will" necessarily equates to the "depraved mind" required for murder.  They are just part of the circumstances in this case.

I also think that the significance of those words is not solely their use as to evidence of GZ's mental state. I think the prosecution also think they undermine GZ's credibility in his reporting of the encounter with TM and words used. 

I think there are other circumstances that will be argued by the prosecutor, some of which we probably are not yet aware of, that will bolster their case.  So it isn't one piece of evidence alone, but rather multiple components.

I'm not saying they will prevail at trial.  There's a huge difference between being able to frame an argument and being able to sustain a burden of proof.   

Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 10, 2012, 05:02:26 AM
I have a question about this. Without GZ's above statements from the NEN call, would the state have even tried to charge him with 2nd degree murder? Yes, the state could still argue GZ “profiled” TM as a criminal and he “followed” and “confronted” TM, and a “struggle ensued.” But would those elements be enough with regard to “depraved mind”?

If so, it would be a radical departure from Florida law.  Depraved mind means there is evidence of ill will, hatred, spite, or evil intent.  Suspecting somebody might be a burglar does not establish that, nor does following, nor does confronting, nor does "a struggle ensued."

Martin screaming for his life for 30 or 40 seconds might be enough for a jury to conclude that the shooting was undertaken with ill will, hatred, spite or evil intent, and the state has Sybrina's testimony for that proposition.

Jeralyn cited a case, I don't recall what it was, that a chance meeting of strangers culminating in a fight and a death doesn't produce the state of "depraved mind."
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 10, 2012, 05:33:36 AM
Jeralyn cited a case, I don't recall what it was, that a chance meeting of strangers culminating in a fight and a death doesn't produce the state of "depraved mind."

Here is a case that finds the opposite ... State of Florida v. Allen Lee Rogers (http://fl.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19800611_0001650.FL.htm/qx) (Fla. 2d DCA 1980).

I remain of the mind that some fact patterns should be insufficient, as a matter of law, to produce evidence of depraved mind; but the case law that I've found holds the opposite.  It appears the state need produce no evidence of depraved mind in order to get to trial.  ANY altercation involves a state of mind, and it appear that state of mind is always a question for the jury - supposing, of course, that the court does not find the act to taken in self defense.

Just to expand on the point, by way of hypothetical example, if there was a video of this altercation, and it showed Zimmerman calmly and politely introducing himself as the neighborhood watchman, Martin initiating the fight as Zimmerman attempted to retreat, and it showed Zimmerman yelling for help, and it showed Martin reaching for Martin's pistol, the court could NOT dismiss a 2nd degree murder charge by finding an absence of depraved mind.  It could dismiss by finding the shooting to be a justified act of self defense.

Even if Zimmerman shows no act of aggression, and even if Martin shows all the aggression, the court cannot dismiss an allegation by the state that Zimmerman acted with depraved mind.  The evidence is the ultimate act, the final blow.  The jury can reject the allegation pertaining to state of mind.  As a matter of legal process, the state is on firm ground until the case is submitted to a jury.  Similar to the absence of making any accounting for self defense in second degree murder charging instruments, the state of "depraved mind" being a freebie to the prosecutor is a quirk of Florida law (and likely other jurisdictions too).
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: RickyJim on July 10, 2012, 06:24:55 AM
What I gather from the discussion here is that there is no way to have the 2nd degree murder charge dismissed on the grounds that the Affidavit of Probable Cause didn't cite enough credible evidence that the defendant didn't act under self defense and the same would hold had the charge been only manslaughter.  I suppose that if you also believe "A Grand Jury would indict a ham sandwich." you don't find this method of indictment, leaving it up to an elected prosecutor, particularly upsetting.  I am unaware of any other civilized country where prosecutors have this much power.  How many states are there which require that nobody can be indicted for a serious offense unless a judge decides, after at least one hearing, that the evidence is strong enough to justify it?  Connecticut?
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Lousy1 on July 10, 2012, 06:37:12 AM
Thanks all,

Does the state have any burden to provide evidence of a depraved mind in order to bring charges? If so why not just charge Murder I with no evidence of malice and aforethought?
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cardinal on July 10, 2012, 07:23:15 AM
If so why not just charge Murder I with no evidence of malice and aforethought?
Under Florida law, a grand jury indictment would be required to bring first degree murder charges.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 10, 2012, 07:24:03 AM
What I gather from the discussion here is that there is no way to have the 2nd degree murder charge dismissed on the grounds that the Affidavit of Probable Cause didn't cite enough credible evidence that the defendant didn't act under self defense and the same would hold had the charge been only manslaughter.

Look at grounds for dismissal as coming in more than one form.  One form is that the allegations don't have evidence to support them, therefore the allegation itself is deficient.  That would be a dismissal of the charge for want of certain inculpatory evidence.  What's been discussed here is that the court cannot dismiss for want of inculpatory evidence of depraved mind.  It can take the final act, and allege that this act, alone, is enough to establish depraved mind.  The jury can reject that, but the judge cannot, as a matter of law.

Another form is to assert self defense.  A judge is obliged, if asked, to conclude whether or not the preponderance of evidence supports a conclusion that the act was justified.  The case can be dismissed on self defense grounds.

As for the contents of the charging instruments, if the charge is manslaughter, the state must negate the Chaper 776 justified use of force in the charging instruments, if the state charges manslaughter.  This is because the manslaughter crime includes, as an element, that defendant did not act in self defense.  But, in contrast, a murder charge need not negate self defense, because the murder crime does not include, as an element, that the defendant did not act in self defense.  That difference makes logical sense, as "depraved mind" and "having sound reasonable basis" are mutually exclusive - at opposite ends of the spectrum of justification, actually.

Self defense can defeat either charge, murder or manslaughter, and can do so either by the judge or by the jury.  If by the judge, the decision is based on the rationale in support of self defense.  Logically, if defendant acted in self defense, he could not have acted with depraved mind, so in a sense the judge is finding absence of depraved mind.  The only difference is the form and substance of the motion to dismiss.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 10, 2012, 07:32:30 AM
Does the state have any burden to provide evidence of a depraved mind in order to bring charges? If so why not just charge Murder I with no evidence of malice and aforethought?

Technically, yes.  It is unethical to charge a person if the prosecutor does not have evidence to support all the elements of the charged offense.

As a practical matter, the remedy for an unethical charge is unavailable, sometimes until after the trial has been concluded.  So, a prosecutor can bring a charge of Murder I with no evidence of malice aforethought, same as bringing a charge of Murder II with no evidence of depraved mind.  It;s not that the complete system of justice doesn't get around to disagreeing with the prosecutor.  The questions are how and when that disagreement is resolved.

As far as I know, because the charge originates with the prosecutor on an information, the prosecutor has complete freedom to reframe the case, at any time up until the jury is charged.  The prosecution can do this unilaterally, with no visible prompt, or in response to a pretrial order from the judge; or in response to a motion after each side has presented its case, but before the jury is charged.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: RickyJim on July 10, 2012, 08:07:26 AM
As for the contents of the charging instruments, if the charge is manslaughter, the state must negate the Chaper 776 justified use of force in the charging instruments, if the state charges manslaughter.  This is because the manslaughter crime includes, as an element, that defendant did not act in self defense.  But, in contrast, a murder charge need not negate self defense, because the murder crime does not include, as an element, that the defendant did not act in self defense.  That difference makes logical sense, as "depraved mind" and "having sound reasonable basis" are mutually exclusive - at opposite ends of the spectrum of justification, actually.

Does this mean that if the Affidavit of Probable Cause was for Manslaughter, O'Mara could challenge it on the grounds it didn't address the self defense element but since it was for Murder 2, which doesn't have that element, he cannot?  If so, then maybe there is some sense to the prosecution's seeming (to a layperson) madness.   :o
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 10, 2012, 08:25:50 AM
Does this mean that if the Affidavit of Probable Cause was for Manslaughter, O'Mara could challenge it on the grounds it didn't address the self defense element but since it was for Murder 2, which doesn't have that element, he cannot?  If so, then maybe there is some sense to the prosecution's seeming (to a layperson) madness.   :o

If the charge had been manslaughter, then the charging instrument would have to allege that Zimmerman's actions were not in self defense under Chapter 776.  The information (the bare summary charging document) it doesn't have to do more than make that allegation.  The supporting affidavit could be sparse as to evidence that the act was not self defense, as well, but could not be totally void of evidence on that point, as the affidavit in support of murder is (and is allowed/supposed to be).

I think as a matter of subsequent action, it all ends up at the same place - a motion to dismiss because the use of deadly force was justified under Chapter 776; and if than fails, arguing self defense to the jury.

I agree with your summary conclusion.  It appears that murder 2 is the most advantageous charge for the state, for insuring the process goes to trial.  It doesn't need to have any evidence (other than the final act) of depraved mind, and it doesn't need to say anything about exculpatory evidence in the nature of self defense.  IOW, if the state wants to undercut statutory immunity of 776.032, the best charge is murder 2.  That avoids the grand jury, no need for evidence of depraved mind, and the question of self defense is left to the judge on a self-defense motion.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 10, 2012, 08:46:42 AM
Is the mere fact that issues are in dispute decisive?

Conversly is the salient question 'has the state produced sufficient evidence (undisputed or not ) to:

a. Establish the requirements of the charging document?
b. Disqualify a SYG defense.

As I understand your explanation I could be charged murdering someone who was 2500 miles away from me at the time of his death based only on the fact I didn't like them ;airplanes exist and some passengers  when presented with my voice samples, have differing opinions about my possible presence on various flights.

I would have no recourse except trial?

The state has DeeDee and Sybrina, and in a pretrial motion to dismiss, all evidentiary disputes are resolved in the state's favor.  So, for a pretrial motion, Martin is the one screaming for 30-40 seconds, and Zimmerman initiated the use of physical contact.

The system operates on a presumption that the prosecutor uses good judgment, weighs competing evidence before deciding to charge, and refrains from charging when the evidence is so weak as to not be able to support a conviction.  However, and especially because the prosecutor is given a presumption of acting under these terms, the "front end" of the system is biased in favor of the prosecutor.

A prosecutor can take the testimony of a known liar, and for purposes of pretrial motion, that testimony will be presumed true.  The logic is that it is for the jury to decide the veracity and/or accuracy of witness testimony, so the case goes to trial.  The practical hurdle for charging is ZERO.  The prosecutor needs to have ZERO reliable evidence, any evidence will do, even from known liars, and even if the eyewitness testimony is contradicted by forensic evidence (or lack thereof).  You can be charged even if there is no evidence you do not like the person.

A statutory self defense claim can be settled without going all the way to trial, but the state can still charge and detain you until the judge decides your evidence for justified use of force outweighs the state's evidence against.

You could escape your dilemma with alibi, but the burden would be on you to produce it.  The prosecutor can bring a bogus charge.  It happens frequently.  Usually, the error is discovered.  There is no place to go to get your reputation back, other than thoroughly discrediting the prosecutor.  There is positively no way to recover your lost time or money.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: unitron on July 10, 2012, 09:07:00 AM
Zimmerman, as far as we know, after shooting Martin, made no effort at first aid and did not call for an ambulance.

The guy who took the picture of the back of his head supposedly offered to call 911 and Zimmerman told him not to bother, indicating that he, Zimmerman, had just been on the phone with them when in fact he had been talking to a police dispatcher, not an ambulance dispatcher.

Could the state use that as part of the "depraved mind" arguement?
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Lousy1 on July 10, 2012, 10:02:34 AM
Zimmerman, as far as we know, after shooting Martin, made no effort at first aid and did not call for an ambulance.

The guy who took the picture of the back of his head supposedly offered to call 911 and Zimmerman told him not to bother, indicating that he, Zimmerman, had just been on the phone with them when in fact he had been talking to a police dispatcher, not an ambulance dispatcher.

Could the state use that as part of the "depraved mind" arguement?

I think that the fact that only one shot was fired speaks more directly to Zimmerman's state of mind. I doubt that many people would be overly concerned about the comfort  someone who a announced that he was going to kill you, and attempted to do the same just  a few seconds previously. My psyche would still be in survival mode
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: unitron on July 10, 2012, 11:27:23 AM
I think that the fact that only one shot was fired speaks more directly to Zimmerman's state of mind. I doubt that many people would be overly concerned about the comfort  someone who a announced that he was going to kill you, and attempted to do the same just  a few seconds previously. My psyche would still be in survival mode

I didn't offer an opinion as to whether it actually does indicate a "depraved mind", I just wondered if the state could, and/or would, argue that it does so.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: RickyJim on July 10, 2012, 01:31:39 PM
To disprove that I have understood what has gone on previously, I'm asking if the following is correct.

At a (Florida) trial for second degree murder, the judge can, if a small amount of evidence is presented, instruct the jury that they may acquit on grounds of self defense.  If the trial is for manslaughter, such an instruction is redundant since not being self defense is an element of the definition of manslaughter which must be proven beyond a reasonable doubt.  One might argue that the element of the charge of second degree murder, that the killing was done with a depraved mind, could not have been proven if the jury finds self defense so the self defense instruction is redundant there also.  But I am getting confused.   ::)
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 10, 2012, 02:49:29 PM
To disprove that I have understood what has gone on previously, I'm asking if the following is correct.

At a (Florida) trial for second degree murder, the judge can, if a small amount of evidence is presented, instruct the jury that they may acquit on grounds of self defense.  If the trial is for manslaughter, such an instruction is redundant since not being self defense is an element of the definition of manslaughter which must be proven beyond a reasonable doubt.  One might argue that the element of the charge of second degree murder, that the killing was done with a depraved mind, could not have been proven if the jury finds self defense so the self defense instruction is redundant there also.  But I am getting confused.   ::)

You are either confused or jumping ahead.  My discussion below is about charging the defendant, step one of the process.  You are now talking about charging the jury with making a decision, which is a step far removed from charging the defendant with a crime.  I haven't researched Florida jury instructions for manslaughter, to see if the self defense element is automatically included or not.

Generally, self defense has to be raised by defendant at trial, by producing a scintilla (or more) of evidence to that end.  After the defendant has presented his case for self defense, the prosecution has the burden of disproving it, beyond a reasonable doubt.  This is true of the charge is battery, or murder.  I assume it is also true for manslaughter, that "self defense" isn't argued to the jury by the prosecution, and the appearance of a self defense instruction depends on the defendant arguing self defense to the jury.

I emphasize that this procedure is DIFFERENT from raising, and deciding self defense on a pre-trial motion.  That is definitely before jury instructions; and regardless of the charge being murder or manslaughter, defendant either raises the self defense / 776.032 immunity issue before trial, or does not.  The court does not automatically settle the self defense argument, pre-trial, if the underlying charge is manslaughter.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 10, 2012, 04:41:21 PM
Zimmerman, as far as we know, after shooting Martin, made no effort at first aid and did not call for an ambulance.

The guy who took the picture of the back of his head supposedly offered to call 911 and Zimmerman told him not to bother, indicating that he, Zimmerman, had just been on the phone with them when in fact he had been talking to a police dispatcher, not an ambulance dispatcher.

Could the state use that as part of the "depraved mind" arguement?

Yes, I would think that would be part of the totality of the circumstances and part of the prosecution's argument.

I would contrast that with the recent case in Texas, where a father caught a stranger in the physical act of raping his 4-year-old daughter and beat the rapist to death. There is a 911 call that was recorded, an the father (beater) is freaking out when he realizes the rapist is dying, frantically trying to administer first aid.  So it's a very disturbing and poignant recording, showing the man's emotional state shift from what must have been blind rage to concern for the life of the person he had just beaten.  In that case the prosecution submitted the evidence to a grand jury, apparently along with physical evidence as to the raped daughter's injuries, and the grand jury voted no bill.

In the Zimmerman case, all witness accounts seem to paint him as cold & unemotional, perhaps matter-of-fact in his statements post-shooting.   So I would anticipate that the prosecution would argue that the post-shooting behavior confirmed the lack of "regard" for human life ("depraved mind regardless of human life" in the statute).
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 10, 2012, 04:47:24 PM
I'd add that it is actually very common for prosecutors to use the defendant's post-event behavior & conduct to show intent.   

You might recall that in the Casey Anthony case the prosecution made a point that she went out partying after her daughter was missing, and did not seem to show grief  later when she learned that her daughter's body had been found.  In that case the prosecution was charging first degree murder, even though they lacked direct evidence as to how the child was killed or who did the killing.  Of course, Anthony was ultimately acquitted, but that didn't stop the prosecution from making the argument that her behavior after the child was missing and presumably dead was evidence both of her role in the killing and her state of mind.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 10, 2012, 04:59:03 PM
The state has DeeDee and Sybrina, and in a pretrial motion to dismiss, all evidentiary disputes are resolved in the state's favor.  So, for a pretrial motion, Martin is the one screaming for 30-40 seconds, and Zimmerman initiated the use of physical contact.

I think you are technically misconstruing Florida procedure for a motion to dismiss, and confusing it with a the process that is commonly referred to as a "demurrer" in many jurisdictions.

In a demurrer  (which can also be called a motion to dismiss based on the pleadings) -- all of the facts asserted in the charging document (complaint, information or indictment) are presumed true, and the motion is brought along the lines: even if all of those facts are true, the defendant cannot be prosecuted.

In criminal matters, I think the most common situations where that would result in dismissal are issues of venue/jurisdiction or statutes of limitations. 

The Florida dismissal procedure is more akin to summary judgment, based on a statement of undisputed facts. I think the defense would bring a motion listing all facts which are not disputed -- this could include additional facts, not listed in the Information  -- but the point is that it has to be something that is not in dispute.  The prosecution would respond by first listing all fact that are in dispute, and then argue from there.  The court could make a determination based only on the undisputed facts.

So hypothetically, the defense could offer as an "undisputed" fact the claim that Zimmerman is the person screaming on the 911 tape.  The prosecution could merely respond by saying "we dispute that fact" -- not necessarily asserting that it was Trayvon's voice, just simply eliminating that item as being something "undisputed".   

As a practical matter, it might not make a difference, but it is different both in terms of the procedure and in terms of the determination to be made on appellate review.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 10, 2012, 05:06:33 PM
Here is a case that finds the opposite ... State of Florida v. Allen Lee Rogers (http://fl.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19800611_0001650.FL.htm/qx) (Fla. 2d DCA 1980).

I think you really need to pay attention to the procedural stance of appellate cases. The Rogers case says exactly the same as the other cases that Jeralyn posted above:  a trial court can NEVER make a determination of "intent" on a motion to dismiss, because the determination of "intent" is ALWAYS something to be decided by the trier of fact based on consideration of all the circumstances.

Again, this is because it is impossible to read minds.  Maybe in some future Minority Report world this will change, but if the prosecution was expected to have direct evidence of intent in cases, they would hardly be able to prosecute anyone. 

So you could never have the intent be an "undisputed fact" - the fact that the prosecutor has charged the crime in itself puts that "fact" in dispute.   
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 10, 2012, 06:19:26 PM
As for the contents of the charging instruments, if the charge is manslaughter, the state must negate the Chaper 776 justified use of force in the charging instruments, if the state charges manslaughter.  This is because the manslaughter crime includes, as an element, that defendant did not act in self defense.  But, in contrast, a murder charge need not negate self defense, because the murder crime does not include, as an element, that the defendant did not act in self defense.  That difference makes logical sense, as "depraved mind" and "having sound reasonable basis" are mutually exclusive - at opposite ends of the spectrum of justification, actually..

I think you are misconstruing the law.  In Florida, the elements of 2nd degree murder are:

* that a human being was killed
* that the defendant is the person who killed the victim
* that the killing was unlawful
* the killing was perpetrated by an act imminently dangerous to another
* and evincing a depraved mind regardless of human life


The elements of manslaughter are:
* that a human being was killed
* that the killing was the result of the  act, procurement, or culpable negligence of the defendant
* that the killing was without lawful justification

You are interpreting the phrase "without lawful justification" in the manslaughter statute as requiring some level of affirmative evidentiary showing that does not apply to the phrase "unlawful" in the murder statute.

I am not convinced that would be the case.  I think that an "unlawful" killing is identical to a killing that is "without lawful justification", and that the difference is simply one of semantics, not substance.

To put it another way:

killing + without lawful justification = manslaughter
killing + without lawful justification + act imminently dangerous + depraved mind indifference = murder 2
(if you added premeditation to the above, then you would have murder 1) 

So I don't think that the charging decision somehow makes things easier on the prosecution. 

Manslaughter is a necessarily included lesser offense of 2nd degree murder, so when the case goes to trial the jury will be instructed on manslaughter and have the option to return a manslaughter verdict.  Of course the prosecution knows this.   

Most prosecutors will charge the highest level of offense that they think the evidence can prove, simply because that is logically what puts them in the best position. The prosecutor always has the option to reduce the charge on its own before trial -- and the jury in a 2nd degree murder case always has the option of returning a manslaughter verdict -- but it doesn't work the other way around.


Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: cboldt on July 10, 2012, 07:12:57 PM
The elements of manslaughter are:
* that a human being was killed
* that the killing was the result of the  act, procurement, or culpable negligence of the defendant
* that the killing was without lawful justification

You are interpreting the phrase "without lawful justification" in the manslaughter statute as requiring some level of affirmative evidentiary showing that does not apply to the phrase "unlawful" in the murder statute.

F.S. 782.07 - Manslaughter ... (http://www.flsenate.gov/Laws/Statutes/2011/782.07)
... without lawful justification according to the provisions of chapter 776


The phrase above is part of the manslaughter statute.  My point of view derives from the "according to the provisions of chapter 776" part of the criminal offense.  The murder statute doesn't have that sort of language, no "unless" clause.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 10, 2012, 10:21:43 PM
My point is that the phrase "unlawful" killing means the same thing.

It is a broader term which fully encompasses the language in the manslaughter statute.

When do you think a homicide might be "lawful" other than when done in self-defense?
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: TalkLeft on July 11, 2012, 02:10:38 AM
My point is that the phrase "unlawful" killing means the same thing.
It is a broader term which fully encompasses the language in the manslaughter statute.
When do you think a homicide might be "lawful" other than when done in self-defense?

When it's an accident. Florida has a law for that too, called Excusable Homicide (http://www.flsenate.gov/Laws/Statutes/2011/782.03).

Quote
782.03 Excusable homicide.—Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

Self-defense is Justifiable Homicide and an accident is Excusable Homicide.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: DebFrmHell on July 11, 2012, 11:54:05 AM
My point is that the phrase "unlawful" killing means the same thing.

It is a broader term which fully encompasses the language in the manslaughter statute.

When do you think a homicide might be "lawful" other than when done in self-defense?
When a prisoner gets executed?  Sorry, O/T but it was the first thing that flew into my head.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 11, 2012, 03:33:58 PM
Well, I was just pointing out that "unlawful killing" was a broader, more inclusive phrase than the more specific reference to "lawful justification" under the provisions of Chapter 776. 

Cboldt seems to be arguing that a manslaughter charge would require some additional assertion in the pleading that is not required for murder 2  -- a specific negation of self defense -- but I don't think that's the case.  For one thing, Chapter 776 is not merely "self defense" -- that chapter covers a variety of scenarios, such as use of force by a correctional officer to prevent a prisoner's escape (776.07).   

Additionally, as I have noted,  manslaughter is a necessarily included lesser offense of 2nd degree "depraved mind" murder, and the prosecution is well aware of this.  This can be seen in the wording of the Information, which contains the assertion that Trayvon Martin was "under the age of 18".  See http://www.scribd.com/doc/88952000/George-Zimmerman-Information-Document

Martin's age is irrelevant to the charge of murder, but it is highly relevant to the crime of manslaughter, as it is an aggravating factor that converts manslaughter from a second degree felony to a first degree felony, with appropriate higher penalties.   

So it is easy to see from the face of the pleadings that the prosecutor is well aware of the elements of manslaughter and included all required language within the Information.

If Zimmerman had been charged with manslaughter instead of murder, then I would expect the Information would have used the phrase "without lawful justification" rather than "did unlawfully" -- but I don't think that any more facts would have been required to be set forth.

That is, the prosecution did not gain some sort of pleading advantage by charging murder 2 rather than manslaughter. Rather, the prosecution is charging both.  The "murder" charge includes manslaughter -- but Zimmerman could not be convicted of both. He only committed one homicide, so there is one count, listing the highest possible charge against him -- but the prosecutor has made certain that the one count includes all applicable elements of both offenses.
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: RickyJim on July 11, 2012, 05:01:40 PM
I head is spinning from the legalities.  Is the bottom line still, O'Mara can't ask for dismissal of the charge of second degree murder on the grounds that the charging document did not contain sufficient evidence of probable cause?  And same would be true if the same charging document had been used for manslaughter?  And thus there is no chance for dismissal before a SYG hearing?
Title: Re: Can O'Mara Challenge Probable Cause Affidavit?
Post by: Expy on July 11, 2012, 05:25:23 PM
I head is spinning from the legalities.  Is the bottom line still, O'Mara can't ask for dismissal of the charge of second degree murder on the grounds that the charging document did not contain sufficient evidence of probable cause?

Yes. That is the answer. The charging document is the Information and that on its face appears to be sufficient.   

The affidavit of probable cause is NOT the charging document.  It is the document that provides the basis for placing someone under arrest, but the result of a successful challenge to that document would merely be that the person is freed from custody, not that charges are dropped.   And as I have noted, Zimmerman's lawyer waived any right to object to that early on.  (I personally think that was the right decision, but that's a matter of legal judgment & strategy)

Quote
  And same would be true if the same charging document had been used for manslaughter?

The wording on the Information would be different if it were used for manslaughter, as it would track the manslaughter statute and wouldn't have the "depraved mind" language, etc.  But as I've note, the 2nd degree murder charge includes manslaughter.  If Zimmerman's case goes to trial and he raises a claim of self defense, then the jury will be  given instructions on both murder and manslaughter.  They will be told that they can only return 1 verdict, but that their options are to either find the defendant guilty of murder 2, or find him guilty of manslaughter, or return a verdict of not guilty.

Quote
  And thus there is no chance for dismissal before a SYG hearing?

Florida also has a procedure that is akin to a civil summary judgment motion.  It allows the defense to request a bill of particulars, and then based on that statement and other discovery, the defense can argue to the court that based on the undisputed facts, no crime has been committed.   That would not be a "reasonable doubt" argument -- that is, the defense would not be arguing that the undisputed facts leave some sort of doubt -- but rather an argument that the undisputed facts establish a defense.   

That procedure would not likely be of value to Zimmerman, since we can anticipate that many facts that are relevant to the decision remain in dispute, and because that procedure can never be used under Florida law to determine whether or not the defendant had the requisite intent.

A "stand your ground" hearing could result in a dismissal, but it is not a challenge to the sufficiency of the pleadings.  It is an evidentiary hearing, before a judge, where the defendant bears the burden of proof, by a preponderance of evidence, that he acted in self defense. Both the prosecution and defense can appeal the trial court's ruling, so it is unlikely that the SYG hearing would resolve the case at the trial level.