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Hazardous Harry wrote:

d-usa wrote:

Prosecution can appeal all the way to the top as well I think.

Really? In Australia prosecution can only appeal sentences and particular points of law being erred on.

I don't think our prosecution can appeal actual sentences. They can appeal procedural motions and such. If a judge dismisses the case based on stand-your-ground laws, I think they could appeal based on that interpretation, since it is a procedural thing.

If the case actually goes to trial and he is found not guilty, then I don't think they could appeal.

One of our more law-versed members might be a better resource for that though.

Given that a majority of the current members of the Supreme Court think that ROUTINE strip-searching of disabled children and nuns is fine I don't think they'll have a problem with this law.

According to the AP:

The prosecutors must prove Zimmerman's shooting of Martin was rooted in hatred or ill will and counter his claims that he shot Martin to protect himself while patrolling his gated community in the Orlando suburb of Sanford. Zimmerman's lawyers would only have to prove by a preponderance of evidence - a relatively low legal standard - that he acted in self-defense at a pretrial hearing to prevent the case from going to trial.

Seems to jive with what I have argued. Maybe they are wrong.

From http://hosted.ap.org/dynamic/stories/U/US_NEIGHBORHOOD_WATCH?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2012-04-12-07-29-57

olympia wrote:Given that a majority of the current members of the Supreme Court think that ROUTINE strip-searching of disabled children and nuns is fine I don't think they'll have a problem with this law.

You'll have to explain that one.

Frazzled wrote:

biccat wrote:

Hazardous Harry wrote:Unfortunately with Florida's "Stand your Ground" law, this looks like an easy walk. The onus is entirely on the prosecution to prove he did not act in self-defence.

Support for this? I'm not disputing that you may have heard this somewhere, I just wanted to verify it.

This is surprising, and nothing I've read about Florida's statute shifts the burden to the prosecution to disprove self defense.

edit: Nevermind, found it:
"Once a defendant makes a prima facie showing of self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense." Fields v. State, 988 So.2d 1185, 1188 (Fla. 5th DCA 2008)

Zimmerman does have to make a prima facie showing, which means "defendant's only burden is to offer facts from which his resort to force could have been reasonable."

Also, it seems Florida doesn't have an imperfect self defense rule, which explains why the prosecutor is going for murder rather than manslaughter.

Wow that is different if I read that correctly. To restate, the defendant only has to show minimal evidence of the legal self defense, and then the burden shifts to the prosecution to disprove that? I'm pretty hard core but thats disconcerting.

Yeah. This is exactly why Florida's "stand your ground" law is so insane. Other states that have adopted "stand your ground" laws are much more reasonable. I still don't like them, but that's an entirely different discussion, and I can fully respect the opposing position. Florida's, however, is absolutely nuts and everyone should be in agreement it needs to be revoked or modified.

d-usa wrote:1) Zimmerman says self-defense cops don't arrest.
2) Prosecution proves to a judge that it was not self defense - warrant issued.
3) Defense tries to prove it was self defense - motion to dismiss.
4) Trial - no longer about self defense. Prosecution tries to prove it was murder. Defense tries to argue it wasn't.

I don't think this is correct. The prosecution doesn't have to prove to a judge that it was not self defense, only that they have probable cause to believe it wasn't self defense.

The motion to dismiss argues even if all of the Prosecution's facts are true a reasonable jury couldn't find that he killed Martin not in self defense.

d-usa wrote:Prosecution can appeal all the way to the top as well I think.

I don't think so. This raises double jeopardy concerns. I don't know enough about double jeopardy law.

Kilkrazy wrote:Maybe the Stand Your Ground law is a bad law and this case will be used as the test case to get it reviewed.

Maybe this specific law is a bad law, but "Stand Your Ground" laws are not themselves bad. The alternative is worse.

Frazzled wrote:Wow that is different if I read that correctly. To restate, the defendant only has to show minimal evidence of the legal self defense, and then the burden shifts to the prosecution to disprove that? I'm pretty hard core but thats disconcerting.

They have to show evidence to support self defense, which Florida essentially presumes is "reasonable doubt." It's part of the prosecution's case to prove that the defendant killed the victim "beyond a reasonable doubt."

It's certainly different, but I don't think it's really "hard core."

Frazzled wrote:

olympia wrote:Given that a majority of the current members of the Supreme Court think that ROUTINE strip-searching of disabled children and nuns is fine I don't think they'll have a problem with this law.

You'll have to explain that one.

The Supreme Court decided that when a person is routinely entered into jail the police have the authority to strip search them for contraband. I think the alternative was "reasonable suspicion" of contraband.

I don't really see a problem with the decision, tbh.

CptJake wrote:According to the AP:

The prosecutors must prove Zimmerman's shooting of Martin was rooted in hatred or ill will and counter his claims that he shot Martin to protect himself while patrolling his gated community in the Orlando suburb of Sanford. Zimmerman's lawyers would only have to prove by a preponderance of evidence - a relatively low legal standard - that he acted in self-defense at a pretrial hearing to prevent the case from going to trial.

Seems to jive with what I have argued. Maybe they are wrong.

From http://hosted.ap.org/dynamic/stories/U/US_NEIGHBORHOOD_WATCH?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2012-04-12-07-29-57

That is what you've been saying. And, that is what the prosecutors have to do. However, this is the only state where that's the case. Everywhere else, if you have an affirmative defense, you have to prove it.

It's the prosecutor's job to prove that you did the crime. It's your job to either introduce doubt into the prosecutor's case, OR to prove that although you did the crime, it was justified.

biccat wrote:

d-usa wrote:Prosecution can appeal all the way to the top as well I think.

I don't think so. This raises double jeopardy concerns. I don't know enough about double jeopardy law.

That's why I was thinking that they could appeal procedural things, but not actual convictions. But I was not sure.

biccat wrote:

d-usa wrote:

Frazzled wrote:

olympia wrote:Given that a majority of the current members of the Supreme Court think that ROUTINE strip-searching of disabled children and nuns is fine I don't think they'll have a problem with this law.

You'll have to explain that one.

The Supreme Court decided that when a person is routinely entered into jail the police have the authority to strip search them for contraband. I think the alternative was "reasonable suspicion" of contraband.

I don't really see a problem with the decision, tbh.

Ayah I remember that. I am not seeing the link with nuns and disabled children.

biccat wrote:

d-usa wrote:Prosecution can appeal all the way to the top as well I think.

I don't think so. This raises double jeopardy concerns. I don't know enough about double jeopardy law.

Actually I'm pretty sure the prosecution can appeal an overturned appeal to a higher court. I think that has happened before where a conviction was overturned in appeal and then overturned again by prosecutorial appeal.

However it can generally be only be appealed on questions of law. Facts can be overturned probably but the standard is really high and appellate courts will often over turn a fact pattern using a law argument. Its all very silly but in general issues of fact are at the actual trial court.

Being from Orlando, I used to work with a lot of red necks who were into guns. (Now I'm not saying you are a red neck if you are into guns, just that these guys I worked with were). They carried concealed and did a lot of research into gun laws. They repeatedly made the claim that their lawyers had told them that if they were ever charged with unlawful discharge of their firearm with intent(my words), all they had to say was that they "feared for their life" and they would get off.

GG

generalgrog wrote:Being from Orlando, I used to work with a lot of red necks who were into guns. (Now I'm not saying you are a red neck if you are into guns, just that these guys I worked with were). They carried concealed and did a lot of research into gun laws. They repeatedly made the claim that their lawyers had told them that if they were ever charged with unlawful discharge of their firearm with intent(my words), all they had to say was that they "feared for their life" and they would get off.

GG

Thats a mistake. You'll get off if legally correct, but if there's an issue it will be a legal battle that will harm you forever.

Thats why i carry full auto wiener dogs. Everyone underestimates the lethality of a pack of wiener dogs. They are cute and a comedic riot when they walk, but they're lethal. Lethal i tells ya.

There is a pretty massively different legal standard here.

Every jurisdiction requires that a crime be proven, beyond a reasonable doubt, by the prosecution.

That's going to be stupidly easy in the this case. Nobody disputes that Zimmerman shot Martin.

Now, in a normal jurisdiction, Zimmerman could argue self defense, and would need to prove to the court that he acted reasonably. I'm not sure, but I'd imagine this is preponderance, meaning that the jury decides it if is more likely that he acted in self defense, or not.

In flordia, even after proving beyond a reasonable doubt that the defendent commited the act, the prosecution most also prove, beyond a reasonable doubt, that he did not act in self defense.

This means that as long as the evidence supports a reasonable doubt that a person acted out of genuine fear, he cannot be convicted.

Basically, it goes from the defendent arguing that it's more likely than not that he acted in self defnese, to only need to show that it is reasonable think he might have acted in self defense.

generalgrog wrote:Being from Orlando, I used to work with a lot of red necks who were into guns. (Now I'm not saying you are a red neck if you are into guns, just that these guys I worked with were). They carried concealed and did a lot of research into gun laws. They repeatedly made the claim that their lawyers had told them that if they were ever charged with unlawful discharge of their firearm with intent(my words), all they had to say was that they "feared for their life" and they would get off.

GG

What they were talking about is what Law enforcement officers call "Articulation." It's all about how you paint the picture, what they should have said was, "if I ever discharge my firearm, I call the cops myself and when they get there I use the 5th to shut my mouth and call my lawyer."

Don't forget to plant the knife, er show the police where the knife he was carrying fell.

OK...but my point is that if you parralell the "feared for my life" argument with the zimmerman case. It's similar, and I think he will probably not be found guilty.

GG

generalgrog wrote:They repeatedly made the claim that their lawyers had told them that if they were ever charged with unlawful discharge of their firearm with intent(my words), all they had to say was that they "feared for their life" and they would get off.

Oddly enough, this is pretty much what cops do too.

However, these were obviously terrible lawyers, because if you're ever approached by a cop all you should say is "I'm not going to answer any questions, I do not consent to any searches."

Well, I think it's safe to say that unlawful discharge is easier to win with a self defense argument than, say, murder.

The problem with affirmative defenses, of course, is that they (under the common law) jury issues, meaning you have to take it to trial.

Of course, good prosecutors will realize a viable defense and offer an apporpriate plea bargain.

Which, IMO, is what should happen in the Zimmerman case. Offer a plea to a very low felony, and recommend probation.

AustonT wrote:

generalgrog wrote:Being from Orlando, I used to work with a lot of red necks who were into guns. (Now I'm not saying you are a red neck if you are into guns, just that these guys I worked with were). They carried concealed and did a lot of research into gun laws. They repeatedly made the claim that their lawyers had told them that if they were ever charged with unlawful discharge of their firearm with intent(my words), all they had to say was that they "feared for their life" and they would get off.

GG

What they were talking about is what Law enforcement officers call "Articulation." It's all about how you paint the picture, what they should have said was, "if I ever discharge my firearm, I call the cops myself and when they get there I use the 5th to shut my mouth and call my lawyer."

Which is the advice you get from pretty much any concealed carry instructor in the country, to the best of my knowledge, and why Stand Your Ground laws are important. If I'm attacked in the street and I shoot the assailant(s), I shouldn't be required to run before being allowed to protect myself, nor should I have my savings wiped out defending myself from prosecution.

generalgrog wrote:OK...but my point is that if you parralell the "feared for my life" argument with the zimmerman case. It's similar, and I think he will probably not be found guilty.

GG

Especially as the prosecution needs to prove that he did not fear for his life.

A very tricky thing to prove.

Polonius wrote:Especially as the prosecution needs to prove that he did not fear for his life.

A very tricky thing to prove.

Actually they have to prove he didn't reasonably fear for his life. Significantly less tricky.

Seaward wrote:Which is the advice you get from pretty much any concealed carry instructor in the country, to the best of my knowledge, and why Stand Your Ground laws are important. If I'm attacked in the street and I shoot the assailant(s), I shouldn't be required to run before being allowed to protect myself, nor should I have my savings wiped out defending myself from prosecution.

The problem with Stand you ground laws is that they attack a real problem in a really dumb way.

Nobody is required to "run" from a threat. Common self defense simply requires that a person that can safely retreat do so. The ability to "safely retreat" is a factual issue of course.

the problem is that in many jurisdictions it can be hard to show that you could not safely retreat. Stand Your Ground sounds great, but it allows people to literally look for trouble.

Essentially, the policy behind Stand Your Ground laws is that the State thinks that it's better to legally shoot somebody than to simply walk away.

generalgrog wrote:OK...but my point is that if you parralell the "feared for my life" argument with the zimmerman case. It's similar, and I think he will probably not be found guilty.

GG

Eh, what I've always told my friends is that you never clear your holster until you have already made the decision to use your firearm. And after that there can only be one story: yours. The implication is that you shoot to kill not to wound. After that you can easily articulate (the assumption here is truthfully) that you had a "reasonable fear for you life, or the life of another" and that you had not provoked the incident.
Arizona has laws very similar to FL, or so the media has claimed. In the ARS section on self defense that claim cannot be made if you provoke the incident...which Zimmerman did by following Martin. The Prosecution needs only prove that Z provoked the incident to invalidate SYG, which by calling 911 and then following M he provided ample evidence towards that conclusion, if AZ and FL law really are that similar.

generalgrog wrote:Being from Orlando, I used to work with a lot of red necks who were into guns. (Now I'm not saying you are a red neck if you are into guns, just that these guys I worked with were). They carried concealed and did a lot of research into gun laws. They repeatedly made the claim that their lawyers had told them that if they were ever charged with unlawful discharge of their firearm with intent(my words), all they had to say was that they "feared for their life" and they would get off.

GG

Most 2nd amendment attorney I ever talked to generally advocate not saying anything when it comes to the motive behind the shooting until after you talked to them. They recommended keeping your statement to basically "My name is xxx, I have a concealed carry license, I was carrying, I defended myself. I would like to speak to my attorney before making any other statements please." They informed us that we should not be surprised to be arrested, or at least be brought in for questioning, and that you should not say anything else until after you got a hold of an attorney.

The idea of "I was fearing for my life, so I shot him" followed by a "oh well then, good day to you sir, here is your gun back, carry on" that some of my friends have is pretty silly.

biccat wrote:

Polonius wrote:Especially as the prosecution needs to prove that he did not fear for his life.

A very tricky thing to prove.

Actually they have to prove he didn't reasonably fear for his life. Significantly less tricky.

but... they have to prove beyond a reasonable doubt that he did not have a reasonable fear.

It's less tricky, but proving anything to that standard is tough. Proving a lack of reasonable fear? Good luck with that.

biccat wrote:

generalgrog wrote:They repeatedly made the claim that their lawyers had told them that if they were ever charged with unlawful discharge of their firearm with intent(my words), all they had to say was that they "feared for their life" and they would get off.

Oddly enough, this is pretty much what cops do too.

However, these were obviously terrible lawyers, because if you're ever approached by a cop all you should say is "I'm not going to answer any questions, I do not consent to any searches."

Wait, you're not supposed to shout out " you coppers! You'll never get me see!"

that explains so much.


Automatically Appended Next Post:

Polonius wrote:Well, I think it's safe to say that unlawful discharge is easier to win with a self defense argument than, say, murder.

The problem with affirmative defenses, of course, is that they (under the common law) jury issues, meaning you have to take it to trial.

Of course, good prosecutors will realize a viable defense and offer an apporpriate plea bargain.

Which, IMO, is what should happen in the Zimmerman case. Offer a plea to a very low felony, and recommend probation.

I don't think politically that can be done in this circumstance. Its balls to the wall time to maybe avoid a riot. Cue latest black panthers statement....now.

d-usa wrote:The idea of "I was fearing for my life, so I shot him" followed by a "oh well then, good day to you sir, here is your gun back, carry on" that some of my friends have is pretty silly.

It can happen, but rarely outside of home defense situations.

Cops, and most people I would think, aren't exactly wild about the idea of people shooting each other dead in the streets.

When the cops show up to see a big guy with a gun and a ski mask in your living room, they're probably going to believe that you shot him out of self defense. (yay Castle Doctrine!)

Not to sound like a bleeding heart liberal, but I am ok with that fact that ending a human life will probably result in an inconvenience, no matter how justiifed it was.

Polonius wrote:

Seaward wrote:Which is the advice you get from pretty much any concealed carry instructor in the country, to the best of my knowledge, and why Stand Your Ground laws are important. If I'm attacked in the street and I shoot the assailant(s), I shouldn't be required to run before being allowed to protect myself, nor should I have my savings wiped out defending myself from prosecution.

The problem with Stand you ground laws is that they attack a real problem in a really dumb way.

Nobody is required to "run" from a threat. Common self defense simply requires that a person that can safely retreat do so. The ability to "safely retreat" is a factual issue of course.

the problem is that in many jurisdictions it can be hard to show that you could not safely retreat. Stand Your Ground sounds great, but it allows people to literally look for trouble.

Essentially, the policy behind Stand Your Ground laws is that the State thinks that it's better to legally shoot somebody than to simply walk away.

That is incorrect the policy behind SYG is that in the mid 90's several states quietly passed self defense laws that required people who injured or killed assailants in self-defense had to admit to guilt before being able to claim self defense. Making convictions easy for Prosecutors, and defense hard for people who defend their lives,homes, or families. *Shock* to force prosecutors to actually prove guilt against a "reasonable person" standard.

Frazzled wrote:[

Polonius wrote:Well, I think it's safe to say that unlawful discharge is easier to win with a self defense argument than, say, murder.

The problem with affirmative defenses, of course, is that they (under the common law) jury issues, meaning you have to take it to trial.

Of course, good prosecutors will realize a viable defense and offer an apporpriate plea bargain.

Which, IMO, is what should happen in the Zimmerman case. Offer a plea to a very low felony, and recommend probation.

I don't think politically that can be done in this circumstance. Its balls to the wall time to maybe avoid a riot. Cue latest black panthers statement....now.

The problem is that if the law reads the way I think it does, zimmerman will walk after (at least one) dragged out trial.