Bartender Geek

... except that Zimmerman did not consent to enter a fight; Martin attacked Zimmerman without provocation.

From:

tceisele.livejournal.com

So, following some stranger in your car in the middle of the night, jumping out of your vehicle, and accosting them is *not* behavior that a reasonable person would expect to culminate in a fight? Really?

And the survivor of my hypothetical pair of duelists above would also *say* that they weren't consenting to have a fight. So what?

From:

So, following some stranger in your car in the middle of the night, jumping out of your vehicle, and accosting them is *not* behavior that a reasonable person would expect to culminate in a fight? Really?

Only if one assumes that the stranger is willing to violate the law, since the behavior you described, if the "accosting" is merely verbal, does not constitute legal provocation to violence. Since the rights of those who behave lawfully must in a sane society trump the rights of those who behave unlawfully, Martin was bound to respect Zimmerman's right to not be physically attacked, which Martin most signally failed to do.

From:

So...said survivor is entitled to the benefit of the doubt (at least in court). Unless you can prove otherwise, it was self-defense.

From:

happyfunpaul.livejournal.com

I've stayed silent until now about the Zimmerman case while everyone around me has come* to the same conclusions about it. Literally, I haven't heard a single person I know dissent from the conclusion that Zimmerman was obviously guilty and should have been sent to jail.

But I have a question now.

If "the injustice is the law itself," please explain to me "which law?"

If you mean Florida's "Stand Your Ground" law, that wasn't relevant to the Zimmerman trial. According to Zimmerman's testimony, he did not have an opportunity to escape, so Stand Your Ground doesn't apply. NPR and the New York Times kept repeating that Stand Your Ground was the "central pillar" in the case, but even the prosecutors disagreed. (SYG might well be a bad law, it's just not relevant to the Zimmerman legal case.)

If you mean the legal principle, accepted even in states that impose a duty to retreat in public places, that "lethal force is justified if you have a reasonable fear for your life," then I have to disagree with you. I don't think people who act in self-defense should be charged with crimes. That might not actually apply to the Zimmerman/Martin shooting, but I think it's a sound law.

I certainly hope you're not saying the legal principal of "defendant is presumed innocent until proven guilty beyond a reasonable doubt" is unjust. The jury, given whatever conflicting evidence they got, found that there was reasonable doubt whether Zimmerman committed a crime. They didn't say he committed no crime. I have not been following the facts of the case very much (and I'd venture that none of us knows exactly what information was and wasn't presented to the jury), so I have no idea if the jury actually made a good decision (or if the prosecutors presented their case effectively) within the legal framework, but that's the system in place, and I for one like having our legal system "presumption of innocence" even if it leads to some unjust verdicts.

* I'm tempted to say "emotionally jumped", but I don't actually know how people reached their conclusions, so I won't.

From:

sethg

Self-defense is an affirmative defense to murder.

In common law, the defendant bears the burden of proof for an affirmative defense by a preponderance of the evidence. In Ohio (which follows the common-law standard, or at least it did as of 1987) a defendant in a self-defense case challenged this burden as a violation of due process, and the Supreme Court ruled against her.

However, in Florida and most other states, if the defendant claims self-defense, then the prosecution must refute that claim beyond a reasonable doubt. I find this standard very troublesome, for more or less the reason

tceisele mentions above. It means that in any confrontation involving two armed people and no witnesses, it is logical for each person to think “if the other guy shoots me, they can claim self-defense and the prosecution won’t be able to prove otherwise; therefore, my best protection is to shoot first”.

From:

Perhaps the Ohio ruling by the Supreme Court is _why_ Florida (and other states) changed from the common law theory (defendant must prove self-defense by a preponderance of the evidence) to the legislative standard that the prosecution must prove non-self-defense beyond a reasonable doubt.

Maybe they WANT to make it easier for people to assert a self-defense defense. It's bad enough being forced into a lethal confrontation in the first place. It's worse when the threat of imprisonment for years or decades can follow a justified shooting. This goes back to the long-standing tradition that it is better for a hundred guilty men go free than one innocent man be wrongfully convicted.

Is it possible someone will be acquitted when he actually committed an unlawful homicide? Yes. It also means that people who defend themselves will find it much easier to avoid persecution by the authorities. I can live with that. (And given that your average prosecutor has well over a 90% conviction rate when you add in plea bargains*, I don't worry overmuch about criminals running around scott free.)

*Especially in these days of innumerable federal and state laws, rules and regulations with criminal penalties attached, when anyone at all can be found guilty of some crime (even if they have no idea the crime exists), and all it takes is a (malicious) motivated prosecutor to ruin your life.

From:

sethg

At the time the Supreme Court issued that ruling, only Ohio and South Carolina followed the common-law standard of proof for self-defense.

I should also note that not every affirmative defense has this standard of proof. For example, in Federal courts, the defense needs to prove duress or necessity by a preponderance of the evidence.

Edited Date: 2013-07-16 04:21 pm (UTC)

From: (Anonymous)

The "90% conviction rate including plea bargains" is sort of deceptive, as it would count as a conviction cases where the Prosecution plea bargains a murderer into simple assault because they are short staffed...."

Personally, I *LIKE* the old common law rule. If someone is found in my house standing over my dead body with a smoking gun in his hand, I want him to have to proof it is more likely then not that it was a case of self defense.

Personally, I fear guys like Zimmerman more then I fear Prosecutors.

P.S. WOW, LiveJournal has a sketchy privacy policy.

From: (Anonymous)

The "90% conviction rate including plea bargains" is sort of deceptive, as it would count as a conviction cases where the Prosecution plea bargains a murderer into simple assault because they are short staffed...."

Personally, I *LIKE* the old common law rule. If someone is found in my house standing over my dead body with a smoking gun in his hand, I want him to have to proof it is more likely then not that it was a case of self defense.

Personally, I fear guys like Zimmerman more then I fear Prosecutors.

P.S. WOW, Live Journal has a sketchy privacy policy...

From:

Do you believe that a person has the "duty to retreat" in situations where retreat is impractical? (Martin was on top of Zimmerman, and Martin was more agile -- exactly how would you have tried to retreat in Zimmerman's situation?)

The argument that Zimmerman should have avoided the confrontation in the first place, while true from Zimmerman's self-interested point of view (he would have gotten into less trouble) ignores the fact that Zimmerman actually did retreat from the initial contact, but Martin then doubled back and attacked him anyway.

From:

sethg

Regarding SYG, see here.

From:

happyfunpaul.livejournal.com

Coates's article, that you link to, claims that "Stand Your Ground" was relevant to the delay in arresting Zimmerman. However, that's not even a topic that I addressed.

The article does not claim that Stand Your Ground was relevant to Zimmerman's actual court case and verdict (which was what I was addressing). Quite the contrary, Coates wrote "I do not think you can argue that Zimmerman would have been convicted if not for Stand Your Ground."

(Granted, Coates could have expressed that sentence more clearly,for example as "Zimmerman still would have been found not guilty, regardless of Stand Your Ground"-- but then, his entire article is full of a double-negative style that obscures his meaning. Maybe he needed a better editor? Coates's article also contains a sentence that makes no sense as written: "Sullum criticizes Ben Jealous for inveighing against Stand Your Ground, but correctly invoking the set of laws by the name which they have long been known." There's no "Ben Jealous" and I can't figure out what that paragraph was intended to say.)

From:

dichroic.livejournal.com

I haven't been following the case very closely, but I was under the impression that the Stand Your Ground law did have an effect on the case - maybe not in the trial by jury directly, but in the belief that it applied immediate after the shooting, so that Zimmerman wasn't immediately arrested and proper forensic investigations weren't carried out.

From:

I wish the prosecution had chosen a law such as the one that sent a woman to prison for 20 years for fring a warning shot through the ceililng that did not hit anyone, and was not intended to hit anyone.
http://reason.com/archives/2012/05/02/20-years-for-standing-her-ground

From:

You're right. The way the law is written right now, someone could shoot you for no better reason than that you were trying to beat him up. What happened to the rights of all to beat up anyone who speaks to them without their permission?

What's worse, there's no exception for pasty-faced fat men, who should realize that their social status is much lower than cool kids who are Living Large. And guns make them the potential equal of the cool kids in the subsequent fights.

What's the world coming to?

From:

xiphias.livejournal.com

There IS a principle of "escalation of violence" -- that responding with deadly force to a non-deadly attack is illegal. Back in high school, it would have been considered unreasonable for me to shoot someone in a schoolyard fight. Would you disagree with that? Under your standard, picked-on kids should be legally allowed to shoot bullies. I can't dismiss that as ridiculous on its face, but it would change the dynamic of our society.

In New England, barroom fights only rarely escalate to knives or firearms, because escalation from "fists" to "dangerous weapons" to "deadly weapons" has consequences.

In order for the use of a firearm to be a reasonable response to fists under THAT standard, there would have to be a reasonable presumption that the physical abilities of the two parties were so disparate that one party had a reasonable belief that he or she was in immediate danger of lasting injury or death. Zimmerman claimed that he DID so believe, which, under the Florida standard, is sufficient. Under other standards, a jury would be able to use a "reasonable person" standard to analyze that.

I'm also confused by your implication that Martin was a "cool kid who [was] Living Large". What does that mean, and what do you base that upon? It's the sort of statement that reads like you are making assumption about a person based on external characteristics.

From:

There IS a principle of "escalation of violence" -- that responding with deadly force to a non-deadly attack is illegal. Back in high school, it would have been considered unreasonable for me to shoot someone in a schoolyard fight. Would you disagree with that? Under your standard, picked-on kids should be legally allowed to shoot bullies. I can't dismiss that as ridiculous on its face, but it would change the dynamic of our society.

Beating someone's head against the pavement is hardly a "non-deadly attack." A deadly weapon can be environmental: if I attempt to impale you on the points of an iron fence, this is as much an attempt to stab you as if I do it with a knife.

Personally, I think that whoever initiates the use of force without just provocation in an encounter is responsible for everything the other guy does to him. But then the law isn't as enlightened as am I in this matter. Fortunately, in this case, what Martin was doing to Zimmerman met even their stricter criteria of for a situation lawfully allowing self-defense.

In New England, barroom fights only rarely escalate to knives or firearms, because escalation from "fists" to "dangerous weapons" to "deadly weapons" has consequences.

I'm glad to see that New England enforces the right of bigger men to beat up smaller men unafraid of the possibility of escalation. This also makes me glad I don't live in New England. Though maybe I should move to New England, since as a bigger man myself, it might be nice to live in a place where my right to beat up smaller people was properly protected ...

In order for the use of a firearm to be a reasonable response to fists under THAT standard, there would have to be a reasonable presumption that the physical abilities of the two parties were so disparate that one party had a reasonable belief that he or she was in immediate danger of lasting injury or death. Zimmerman claimed that he DID so believe, which, under the Florida standard, is sufficient. Under other standards, a jury would be able to use a "reasonable person" standard to analyze that.

In this case, it's not so much that the physical abilities of the two parties were so disparate as that one party (Martin) had the other party (Zimmerman) at such a situational disadvantage (Martin was atop Zimmerman) that Zimmerman could neither effectively fight back nor flee, and was actively demonstrating the intent to inflict grievous bodily harm. In Zimmerman's position, what would you have done? Or any other "reasonable man?"

I'm also confused by your implication that Martin was a "cool kid who [was] Living Large". What does that mean, and what do you base that upon? It's the sort of statement that reads like you are making assumption about a person based on external characteristics.

These were Martin's own opinions about himself, as recorded on his blog and in his text messages. This is also the source from which I derive my knowledge that he was racist, sadistic and violent.

From:

l33tminion

Under other standards, a jury would be able to use a "reasonable person" standard to analyze that.

That's true under Florida law, too, here's the relevant bit from the jury instructions:

The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, George Zimmerman must have actually believed that the danger was real. [emphasis mine]

Edited Date: 2013-07-16 09:58 pm (UTC)

From:

daharyn.livejournal.com

What do you think about the possibility of a federal civil hate-crimes case? I have to admit, I don't know if I'm in favor of one. It feels like scapegoating, like a conviction is sought no matter what, and that actually seems more likely to compound the problem of institutional racism rather than solving anything. A federal trial, regardless of outcome, would be guaranteed martyrdom for Zimmerman, and ammunition for every segregationist, white supremacist asshole on the Internets. The trolling would be uncontainable and unbearable.

From:

I don't believe there's legal cause for a federal case. Zimmerman wasn't acting "under color of authority" (i.e., like the cops in the Rodney King case). He has no known ties to hate groups. There's no evidence of racial animus in his behavior (if there had been, the prosecution surely would have brought it out instead of relying on their own say-so).

A federal prosecution wouldn't just seem like scapegoating, it WOULD be scapegoating.

From:

xiphias.livejournal.com

I don't think there's evidence that Zimmerman acted out of active animus against black people. The prejudice that is relevant here would be the general feeling that "this isn't a place where there are black people, and therefore, a black person is out of place, and therefore, is probably up to no good."

That WOULD BE prejudice, but not to the level of a hate crime. The whole genesis of the mess is that Zimmerman felt that Martin didn't look like he belonged there, even though he did, and the complex of reasons that Zimmerman felt that might well include Martin's race, but not entirely.

Zimmerman got into a confrontation because he thought Martin might be looking for trouble, not because he was out looking to harass minorities. His judgement was prejudicial, but whether his prejudice was based on race, or age, or something else isn't clear.

I don't think there's a hate crime here. I think that racism is quite possibly a factor here, but it's the more subtle kind, not the sort of blatant racism that hate crime legislation can deal with.

From:

The percentage of Blacks in the community was pretty high [eta: compared to other communities].

Otoh, iirc, there really had been a series of burglaries and the burglars had been observed to be Black kids of similar age. So race would have been a legitimate factor in the description/suspicion. Also, if Martin was wandering around instead of going stright to his destination, that would also fit with burglary.

Of course Z may have had an underlying attitude making suspicion stronger.

Edited Date: 2013-07-16 08:57 pm (UTC)

From:

The jury, the court, didn't commit an injustice.

The conduct of the prosecution and the judge was questionable, to say the least. I've posted links to good articles on that recently.

It was only late in the trial that the prosecution would allow the jury to consider manslaighter, a charge more likely to succeed than pre-meditated murder. Lesser charges were still not allowed. (Compare Rodney King case, etc.)

The information the judge gave the jury was also questionable.

It may be that given what was presented to them, the jurors had no better choice. Other than creating a mistrial -- a procedure which should be better known, imo.

From:

"It was only late in the trial that the prosecution would allow the jury to consider manslaighter, a charge more likely to succeed than pre-meditated murder. Lesser charges were still not allowed."

As a general rule, I think multiple charges at differing levels of severity should be prohibited. Charge the guy ONCE* with the crime you think a) he's guilty of, and b) you can prove to a jury. If that means settling on a lesser charge, well, okay. If that means rolling the dice on murder vs manslaughter (as in the Zimmerman case), that's fine too--but you have no business throwing a handful of charges of varying levels of seriousness as the guy, hoping something will stick. Giving a jury a menu of charges undoubtedly has a tendency to lead them to "split the difference" and convict the defendant on some charges but not on others, thereby achieving some kind of nebulous fairness by reaching a compromise.

But compromise is not what a jury is supposed to accomplish. They're supposed to decide whether or not the defendant committed a crime. Period. Either he did or he didn't.

*For a given act. Murder/manslaughter/whatever is one act (either it was murder OR manslaughter). Robbery or rape or kidnapping in the same crime are entirely different acts, so charging murder and rape is different.

From:

I agree with most of what you've said. Also, as in the case of Aaron Swartz, breaking a single incident (unauthorized download) into multiple small crimes whose penalties could add up to an unreasonable total, was ... unfortunate.

Yes, the prosecution should charge something that can be reasonably proven. Pre-meditated murder was too hard a sell here. However, there may be some other cases where it's reasonable for a jury to decide whether the facts are those that support manslaughter or those that support murder.

From:

holyhippie

This is a complex issue full of nuance, and complex shades of grey.

I can make an argument that if Zimmerman did commit a crime, with the facts as I understand them from reports in the media, it wasn't second degree murder. If a crime was committed, under the definitions here: <http://en.wikipedia.org/wiki/murder_(united_states_law)#degrees_of_murder_in_the_united_states>, there is a weak argument to be made for voluntary manslaughter, and a strong argument for involuntary manslaughter.

Also, from the reporting I've seen, the affirmative defense of the acts being committed through self-defense was backed up by the physical evidence.

The one point I haven't seen clearly addressed in the media reporting was if the jury was told to consider guilt for lesser crimes than second-degree murder. And if they did, did they seriously consider that what Zimmerman did rose to the level of manslaughter, or was excused as self-defence.

I see many people trying to make larger, derogatory, points about the state of the justice system in this country from this case. There may be cases for some of them (selective prosecution), but I don't think it's right to call what happened as injust on the face of it.

From:

l33tminion

The jury instructions from the case have been published. They were instructed on a manslaughter charge, but self-defense precludes that charge as well.

From:

holyhippie

Thank you very much for that link. Enlightening, and makes the outcome of this case more consistent with the facts as reported.

From: