Before I start this week’s post I want to acknowledge that what I am about to post is the sole opinion of Tamaratattles.com based on what I observed in the courtroom of the prosecution’s case in chief. While Tamaratattles.com is my blog, I don’t in any way want to silence opposing viewpoints. As long as we are all being civil, I think it’s great to try to understand those we disagree with. I don’t even think my opinions are the majority opinion here. That is also fine. I do get irritated when I feel like facts are misrepresented in discussion so I try to correct those I am certain are incorrect or suggest that my understanding is different for those I am unsure about. Anyway enough with the disclaimers, let’s get on with the post!
On Friday the prosecution rested. I am probably a lawyer’s dream in that I usually go into a trial presuming innocence and wait for the prosecution to convince me otherwise. After the prosecution rests, I generally think the defendant is guilty, or at the very least there is the possibility of guilt. Most of the time, as in Jodi Arias and Casey Anthony, I see no way for the defense to overcome the mountain of evidence presented. For the first time, in this case I feel that not only did the prosecution not prove their case, but that this case should never have gone to trial.
Have you ever watched those legal shows where the cops know that someone is guilty of something but they can’t bring them in because they don’t have enough evidence to stand up in court? Sometimes they go to the DA with what they have and the DA says it’s going to take more than that to get a conviction? Then in TVland they finally get the proof they need, the case goes forward and the bad guy goes to jail. In the real world, most of the time that last-minute damning evidence doesn’t materialize. Not everyone who commits a crime get arrested. In this country we need proof beyond a reasonable doubt to convict someone. In this case, in my opinion, the state doesn’t have proof that George Zimmerman committed a crime. Let’s look at the state’s case.
The state knows that Zimmerman’s defense is self-defense. The state is attempting to prove second degree murder. To prove second degree murder, a prosecutor must show that the defendant acted according to a “depraved mind” without regard for human life. Florida state laws permit the prosecution of second degree murder when the killing lacked premeditation or planning, but the defendant acted with enmity toward the victim or the two had an ongoing interaction or relationship. Unlike first degree murder, second degree murder does not necessarily require proof of the defendant’s intent to kill. – See more at: http://statelaws.findlaw.com/florida-law/florida-second-degree-murder-laws.html#sthash.Nd3OFP1M.dpuf.
These are the jury instructions that the jury must follow to find second degree murder. It has three parts and they must find all three true to convict. Let’s see if the prosecution met their burden.
•A “person of ordinary judgment” would know the act, or series of acts, “is reasonably certain to kill or do serious bodily injury to another”;
I think we can all agree on this one. Even with no evidence presented at all, it seems obvious to me, that to someone of ordinary judgment that the act of shooting someone with a 9mm at intermediate range would cause death or at least serious bodily injury to another. Despite the state clouding this point by putting up a witness that said that George was unaware Trayvon had died while she was conducting her interview, he certainly must have known that Trayvon was shot and thus at the very least suffered serious bodily injury. I can concede that the state has proven this part of the charge.
•The act is “done from ill will, hatred, spite, or an evil intent”; and
The first problem I see with this charge is that ill-will, hatred, spite or an evil intent in general require a prior acquaintance between the two parties. However, I am open to the prosecution convincing me that perhaps George was spiteful or held ill-will against the parties responsible for the recent break-ins and this fairly or unfairly carried over to Trayvon. Let’s see if the state can do that….
It is here that the state has problems. The states own witness, the police woman who was first to interview George testified that George did not know Trayvon was dead until their interview. Also, she stated that George looked upset at the news. She further stated that he talked about taking the life of another being against his religion. He asked about her cross and if she was Catholic (she was not, she is Christian). The officer reassured George that if he was telling the truth that God did not mean that you can’t defend yourself when your life is in danger. To me, her testimony proves there was no ill-will, hatred, spite or evil intent. And this was a witness that the prosecution put on the stand.
The female officer did preface that with “if George was telling the truth.” She went on to say she had no reason to disbelieve him. Then the lead detective took the stand and said that in his opinion, George was truthful. Again, this is a witness that the prosecution put on the stand. To me, both of these witnesses negated the presence of ill-will, hatred, spite or evil intent.
The prosecution showed the jury several video and audio interviews with very few differences in his story. The differences I recall were things like “Trayvon came out of nowhere” versus “Trayvon came out of the bushes.” Also, George claims he held Travyon down on his belly with his arms out stretched waiting for the police and asked a neighbor for help restraining him, but the police found him with his hands under his body. This is a major point in the prosecution’s case. Based on facts and evidence presented in court, Travyon was found on his belly with his hands under the body. The prosecution concludes this to mean that George was lying when he said a neighbor approached and he asked for help to restrain Trayvon. In every retelling George claims he got on Trayvon’s back and stretched his hands out in restraint. But all police evidence and a photo taken by a neighbor show Trayvon’s hands under his body. This is the prosecution’s biggest win. Their hope is that the jury will discount his entire telling of events based on this conflicting information. Perhaps the jury will do just that. I myself given the two previous officers testifying that they believe George was truthful would not discount his retelling based on this in discrepancy. That is before the defense even addresses this issue, which they will. And even if you believe George blatantly lied about this particular circumstance, I don’t see that as enough to convict someone of second degree murder beyond a reasonable doubt. I don’t think the position of the hands have anything to do with ill-will, spite, evil intent or hatred.
What did the prosecution put up to show that George acted with ill-will, hatred or spite or evil intent? You may feel that George is a racist, or an over zealous vigilante or a bully, or just a horrible person. But what did the state do to meet their burden of proof? Where are the people to call him racist? Where are the witnesses that said he was a bad ass always looking for a fight? Why didn’t they ask his teachers on the stand about his attitude in class? Where was anyone to cast aspersions on George and show that George acted with a depraved mind? There weren’t any. So from this alone, George in my opinion should be acquitted. If you disagree please show me courtroom evidence of his depraved mind. For those of you trying to think of how to shore up your position, I suggest the prosecutions opening statement. “Fucking punks. These assholes always get away.” That sentence from George’s mouth is what the prosecution is hanging their hat on for “ill-will hatred, spite, or evil intent.” Is that enough for you to find someone of a depraved mind and guilty of second degree murder? It’s not for me. It might be for the jury. We will have to see.
In O’Mara’s motion to dismiss, he focused specifically on this prong of the charge . O’Mara offered the following caselaw to support a dismissal due to lack of evidence to support ill-will, hatred, spite of evil intent. Florida courts have held that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. See, e.g., Light v. State, 841 So. 2d 623, 626 (Fla. 2d DCA 2003); McDaniel v. State, 620 So. 2d 1308 (Fla. 4th DCA 1993). Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim. Light, 841 So. 2d at 626. McDaniel v. State, 620 So. 2d 1308 (Fla. 4th DCA 1993); Williams v. State, 674 So. 2d 177, 178 (Fla. 2d DCA 1996).
It is my position that if this case were not being tried in the media with such tremendous racial overtones that 9 judges out of 10 would have granted this motion to dismiss.
•The act is “of such a nature that the act itself indicates an indifference to human life.”
Well, he killed someone. Isn’t that an obvious indication of indifference to human life? Actually, no, it is not. If it were it would not be necessary to include it on the jury instructions. In fact, the prosecution really needs to prove the ill-will, hatred, spite and evil intent prong before they can prove this one. Self-defense is a pure defense to this prong. Protecting your own life when in imminent danger is not an indifference to human life. Indifference to human life can be interpreted as just killing someone for the hell of it. The prosecution would have to prove that George was out hunting for suspicious people to shoot, rather than simply seeing something unexpected and suspicious on his way to Target. It is my belief they cannot do that without proving the second prong, and I don’t believe they have.
I hope you will forgive the length of this post. I am trying to give specific legal examples of why I believe George Zimmerman should and will be acquitted. I was going to also mention the automatic (in Florida) lesser included of manslaughter but I am sure your eyes are already bleeding if you read all this so I will save it for another time.
I’d love to hear your comments in the prosecution’s case in chief here. Also this will be the post for the defense’s case in chief that begins tomorrow. Thanks for taking the time to read this.