Nope. Sorry. I don't want to make it easier for the state when it comes to criminal prosecution

[cali]

that seems to be the desired outcome of the Zimmerman trial for some. I understand the frustration, but it's a shitty idea


Some suggestions are patently unconstitutional- like forcing a defendant to testify. Other suggestions are just plain old bad ideas, like making it harder to plead self-defense. Now I'm all for getting rid of the absolutely disgusting stand your ground laws, but I don't think the answer is handing the state more power in criminal prosecutions.

In criminal cases the vast majority of defendants start out with the deck stacked heavily against them. Let's not add to that. The State doesn't need any more power in criminal prosecutions

[Puzzledtraveller]

1. Voice of reason Cali, thanks.

[naaman fletcher]

2. Yup

Some of the comments here are embarassing.

[premium]

11. I give you post #3. nt.

[GeorgeGist]

3. I think claims of self-defense should require testimony by the claimant.

[cali]

8. Unconstitutional. Not even remotely arguable. You'd need to amend the Constitution

Putting that aside, I sure as shit don't. I don't want a system of guilty until proven innocent.

Lets start a campaign against stand your ground laws instead.

[Lasher]

130. Stand your ground was not used by the defense.

To be honest, however, it did have some influence on the case in its early stages. But the Zimmerman defense would likely have prevailed if Florida's SYG law did not exist.

[Pelican]

174. I heard on CNN he may request the SYG hearing now...

... to insure civil immunity.

[Lasher]

178. I believe the immunity hearing would occur if someone now files a civil suit against Zimmerman

This comes from Florida's Castle Doctrine law. Components thereof include the 'stand your ground' and 'civil action immunity' sections. The civil action immunity section is what we're talking about here.

http://www.democraticunderground.com/?com=view_post&forum=1014&pid=537218

Wikipedia article about Castle Doctrine

[Cronus Protagonist]

181. It was, however, used by Zimmerman

Until the public rose up at the injustice of it. It was also used by Zimmerman to set up his shooters checklist in the calls to the cops prior to his premeditated intent to murder.

[heaven05]

139. yeah

ok. But when it comes to black people in the system, guilty or not, it is guilty until proven innocent. Am I wrong? This is my last statement on your post. I know the site....don't feel like getting my ass beat for the truth. No disrespect intended to the whining uber patriot amerikkkans on this site.

[pipoman]

4. Yep

Some guilty go free to insure the least amount of innocent people are wrongly convicted..

I know of a man who I strongly believe killed 2 gay young men (17 years old), the police and prosecutors believe he killed them too...there are/were bodies, just no witnesses and no physical case...he walks free every day..and has for 10 years...it makes me sick..I also know a woman's husband who coincidentally was an abusive drunk, was found dead of a gun shot in an alley. The police think she did or hired the murder but they can't prove it. I interviewed her the next day and believe strongly she didn't do it. I believe that her relief that the torture this abuser had been handing out was over made some cop(s) believe she did it.. The same rule/law/rights changes which would have to occur to convict the first would likely also convict the latter...

[EOTE]

5. How is the deck stacked against defendants in criminal cases?

It seems to me that our legal system affords them a good number of protections. What are you referring to specifically?

[pipoman]

9. How about the effects of

the full power of a publicly financed investigation..most defendants cant afford an investigative team with the force of law enforcement..

[EOTE]

15. Isn't that what discovery is for?

To ensure that the defense gets access to the same information/evidence that the prosecution does and vice versa? And does the extent of the investigation matter so much when the reasonable doubt standard exists?

[hack89]

23. But the state is not specifically looking for evidence that will exonerate the accused

what if the investigation is a cursory one that stopped looking at other suspects once they decided that they had the guilty party?

If you were a black man in Sanford Fl, would you stake your life on an investigation by the local PD?

[EOTE]

29. I wouldn't.

And again, I think that's where the "reasonable doubt" standard really comes into play. And I agree 100% regarding your comment on race. But I think that racism is another issue entirely. I don't think that racism is integrated into our justice system per se, but it's absolutely doubtless that our justice system is racist. There are really no laws that ensure that minorities will get locked up for certain crimes at far greater rates than non-minorities, but the end result is the same. I blame the PDs greatly for that.

[hack89]

35. Given the relative balance of power between the state and the accused

and the imperfection of all things human, my preference is to tilt the scales of justice as much as possible to the side of the accused.

I would rather some guilty go free so that no innocent person is convicted.

[EOTE]

65. I definitely want the accused to be afforded all protections.

But one thing to consider in this all is that Trayvon Martin was, without a doubt, an innocent. I have to wonder how many more Trayvon Martins there will be due to Zimmerman's verdict. It seemed to me that the prosecution did a fairly good job, I certainly would have voted for at least manslaughter based upon what I had seen. It makes me wonder if the chosen jury was terribly racist. In spite of all I've heard to the contrary, I don't think they took their job seriously. I can't look at a system that would acquit Zimmerman and think that it's anything but deeply flawed.

[hack89]

72. There will always be cases that are nearly impossible to try

due to lack of witnesses and other evidence. Most of them get make it into court and are usually settled via plea bargain. It happens all the time. Z would be in jail if the state had honestly assessed their chances of conviction and had offered a plea deal.

[pipoman]

44. A defense team can't establish reasonable doubt if they don't know it is there..

they find reasonable doubt in the investigative process..

[pipoman]

41. Discovery shows up at your lawyer's office in 6 file boxes

probably more like 20 in the Zim case. Then the defense lawyer calls you up and says, 'the discovery showed up, I'm going to need another $5k before I can open the boxes'..or more often the boxes show up at the public defender's office who has a work load that leaves him examining the contents 2 days before trial.

A defense investigation is needed because the reasonable doubt standard exists. How does a defense attorney know what a witness will say or actually said to police investigators? Should the defense assume that the prosecutions reports are accurate? The first step in a well financed defense is to interview every single witness in the discovery (compiling that list may take 30 or 40 hours of reading @ $100+ per hour) then another 50 hours of witness interviews at $100+, plus travel, and other misc expenses.. I can't tell you how many witnesses have told me that the police investigator's reports were not accurate as to what they said..how many times I would find information contrary to what was in those reports...and how many times the defense lawyers I worked for were able to establish reasonable doubt only because of the work product of my interviews..

The prosecutor doesn't have to worry about any of that, if he wants someone interviewed he gets in his government car and interviews them on the government dime, or calls police investigators who do the same..no worries about being paid for their work, or about the cost of anything they order or do..

[cali]

14. Just for starters, despite what folks think of the prosecution in Zimmerman

the state usually has damned competent prosecutors. Many, many criminal defendants, particularly in murder cases have PDs. Now I'm not knocking PDs who in many jurisdictions are good guys who put in their best, but they're ALL overworked and underpaid. And in some jurisdictions, they just plain suck. Depends to a large degree of how the PD system is set up. Texas for instance, sucks.

The state has a lot more money to throw at a trial than the vast majority of defendants.

[EOTE]

21. Doesn't the state also have many magnitudes of order more cases to focus on?

Meaning that small time crime doesn't get anywhere near the amount of attention as the larger ones do? And for the larger ones, I'd imagine legal protections available to the defendant overcomes the financial advantage that the prosecution has. Not that I don't think that's the way it should be (I do), I just don't see how a defendant against the state is automatically put at a severe disadvantage, I say this as a former defendant.

[cali]

32. not as overwhelmed by caseload as any PD office n/t

[lawwolf]

180. That is not true

It may very from jurisdiction, but in my last assignment I had 175 open cases at any given time, the PD's that were in my court never had more than 45.

[Laelth]

16. In my experience, juries tend to be very pro-State.

This is especially true when the defendant's skin tone is a shade darker than lilly white. In fact, the darker one's skin, the more pro-State the jury tends to be.

In my admittedly limited experience.

-Laelth

[EOTE]

26. I would agree with that, especially the race factor.

But then again, I'd also say that race can play for the defendant, especially in cases like the Zimmerman trial.

[Arkansas Granny]

92. That was certainly my experience with the jury that I served on earlier this year.

[Lee-Lee]

114. The biggest problem with juries

Is nobody takes their civic duty seriously.

Everybody tries to get out of it, or doesn't even go.

So you are left with the handful of people who take it seriously and the rest who are just not smart enough to get out of it.

The other problem is they use incomplete lists to summon people. Here in NC they use drivers license records and voter registration rolls to generate jury lists.

So if you don't drive or vote, no jury duty. This means minorities are left off the jury rolls at a much greater percentage than whites.

[RobinA]

177. I Am Completely in Favor

of tightening up the jury duty system. I went for jury duty the one time I was called and I never heard such a bunch of whining in my life as I did from many of the other jurors. They can't possibly take off from work, it's too hard to park (if parking there was too hard, I can't imagine they were much needed at work), it's too far, they can't get x, y, or z done if they are at the courthouse, blah, blah, blah. It was pitiful, and these were the people who actually showed up.

[alarimer]

226. Well some people can't actually afford to miss a day or two of work.

I am pretty sure I get paid even if I'm on jury duty, but people making minimum wage or working hourly or something probably cannot afford it.

I think they need to mandate that people get paid leave for jury duty. Full pay.

[Inkfreak]

27. A lot of young black males would say it is..

and they'd be right.

[EOTE]

31. Yes, the justice system is without a doubt racist.

But is that racism codified in our legal system? Or is it that so many players in the legal system are racist? I'm very likely to believe it's the latter.

[Whiskeytide]

78. I think you're right...

... about racism among the players in the judicial system. But the jury's likely tilt toward the State is also because a typical juror has never had issues with the police or the DA's office. They tend to trust police officers and prosecutors because they "keep them safe", and distrust criminal defense lawyers because they "work to free the guilty".

[NCTraveler]

110. The deck is often immediately stacked against the defendant.

18 year old man or woman is brought in for questioning in a crime. Very limited education. Investigators with great knowledge of the law interrogate them for an hour, then let them go. Bring them in two days later for another hour. Then arrest them the next day, attempting to interrogate them again, telling them that if they did nothing wrong they should just tell all. This gives the prosecution multiple hours of interrogations, performed by professionals, to use in their case. Not everyone knows their rights. Many of those who don't know them are the ones who need to understand them the best.

[rpannier]

119. I'd start with the money and resources available to the state for prosecution

Then I'd add that in many cases the jurors believe "Where there's smoke there's fire."

[thesquanderer]

147. Clarification: the deck is stacked against POOR defendants (n/t)

[EOTE]

150. That certainly seems to be the case. In the legal system and pretty much everywhere else.

Class and race seem to be the two biggest factors in terms of actually receiving justice.

[Jackpine Radical]

172. Oh, I dunno.

Court-appointed attorneys for indigent defendants falling asleep during a murder trial…
General incompetence or caseload overburdening of court-appointed defense attorneys…
No money to hire expert witnesses to counter the testimony of biased State experts…
Police trained in interrogation methods designed to elicit confessions, whether true or not…
Setups for entrapment…
Overcharging cases to force plea bargains on factually innocent defendants…
Racially or ethnically biased juries…

Nope. None of that stuff happens. I guess you're right. Funny we manage to get any convictions at all.

[EOTE]

175. I know that poor and minorities are at a disadvantage by default.

There is no doubt that money or the lack thereof is a huge factor in whether or not one is a victim of the legal system. I never suggested that anything you said isn't likely to happen, just that there are also quite a few things afforded to the defense as well. What I was trying to get at is that I believe there are things we can do to prevent more Zimmermans from going free without trampling on the rights of defendants.

[Orsino]

183. By money.

Poverty makes defendants more likely to be convicted, makes their sentences longer, and forces them into the impoverished and overloaded public defender system, in which pleading guilty may be the best defense.

[Laelth]

6. Agreed. Things are bad enough for criminal defendants.

That said, Florida's requirement (as I understand it) that the State must carry the burden of proving that a defendant did not act in self-defense is contrary to the common law and should be amended to bring it in line with the law in most of the States in the U.S.

-Laelth

[cali]

18. Thanks for your informed post, Laelth

I didn't realize that FL had such a requirement.

[Laelth]

34. I didn't either until quite recently.

It appears that the TM case was not, in fact, decided under the "stand your ground" law. It was a self-defense case in which the State could not prove beyond a reasonable doubt that GZ did not act in self defense.

If that's the case, the verdict seems appropriate to me. Florida's peculiar law on self-defense appears to have been the deciding factor.

-Laelth

[COLGATE4]

19. That is exactly the standard used in all

states (except Ohio) now.

[Laelth]

49. Really? I do not practice criminal law and was unaware.

Thanks for the info.

-Laelth

[hack89]

28. Florida is in line with 49 of the 50 states

only Ohio places the burden of proof in self defense cases on the accused.

[Laelth]

50. As I mentioned above ...

... I do not practice criminal law and was unaware. Thanks for the info.

-Laelth

[pipoman]

62. This is almost always the case

where an "affirmative defense" is used. There are many affirmative defenses for criminal and civil matters.

[Laelth]

89. Well, that's my problem.

I thought self-defense was, generally, an affirmative defense. That would mean that the Defendant would have to carry the burden of proving it.

If, on the other hand, the posters who responded to me above are correct, in nearly all states self-defense is not an affirmative defense. The burden, if it is on the State, makes self-defense a justification, as opposed to an affirmative defense.

Going back over my notes from law school, I discovered that my class on criminal law did not cover burdens in criminal cases (beyond the State's general "beyond a reasonable doubt" requirement), thus explaining my lack of knowledge on this subject. That, of course, is coupled with the fact that I don't practice criminal law.

In any event, I apologize to any and all whom I may have confused with my ill-informed post on this subject

-Laelth

[pipoman]

104. I disagree with that characterization..

when an affirmative defense is used/allowed in a criminal case, the jury instructions will be that if the jury determines that the affirmative defense is proven they must acquit, if they believe the affirmative defense may be appropriate, but aren't sure, this is a component of reasonable doubt. So in essence, every claim of an affirmative defense must be disproved by prosecution, beyond a reasonable doubt..IIRC..

[NCTraveler]

113. I see the correction in this sub-thread about the number of states...

But information like this is so important when it comes to understanding the legal system and the burdens on both sides. Such a short post yet more informative than most on this case. Thanks.

[Laelth]

170. My pleasure. I deeply regret that I was in error (or so it appears). n/t

-Laelth

[lawwolf]

231. in indiana

Defense has to show a prima fascia case if self defense then the burden is on the state to disprove one of the elements of self defense beyond a reasonable doubt. The elements in Indiana are the defendant was some place he had a legal right to be, he was not the initial aggressor/or had disengaged, And was in reasonable fear of bodily injury. I had a guy that punched a guard try to claim self defense. I then had to disprove one of the three. In that cars I was able to prove he was not in a place he had a legal right to be (he was in the control room where inmates are only allowed to be with permission and he didn't have permission.

[Lurks Often]

7. Indeed, that some of the posters here want to pick and choose when the law

applies to suit their own beliefs is both hypocritical and disturbing.

[premium]

10. Thank you for injecting reason

into the ridiculous suggestions I've seen over the last couple of days.
Be careful though, you'll be accused of being a Zimmerman apologist.

[Dawgs]

40. Holy shit. You call the OP reason?

No wonder you've done such a poor job of defending Florida and it's stupid laws.

[premium]

48. Holy shit.

are you talking about?

[Dawgs]

69. Exactly. n/t

[shawn703]

12. The changes need to come at the beginning of the process

In other words, competent and unbiased policework.

[pnwmom]

13. On that we agree. The state needs to be able to prove beyond a reasonable doubt

even when the defendant seems to be morally at fault.

[COLGATE4]

17. SYG defense wasn't used in the Z trial.

And the vast majority of defendants have the 'deck stacked against them' principally because the vast majority of defendants are guilty as charged.

[cali]

24. I realize that. Never said it was used. I just think that instead of

some of the suggestions I've seen, people could focus on SYG laws.

Yes, the vast majority of those criminally charged are guilty as charged. That has jack shit to do with my point.

[BlueStreak]

20. The price of justice is that sometimes the guilty get to walk

The alternative is to do it Putin's way. We have already gone way too far in that direction.

[The Straight Story]

22. Well some would say then that you don't care if kids die and such

At least that is what they say when it comes to people talking about guns. If you are not for taking them all and only allowing people with badges to have them they ask things like 'how many kids is it ok for you to die over this and your love of guns?'

How many child murdering molesters do you want to walk around free because you want to keep things as they are???

Just think, Zimmerman could be in jail today if we totally changed the laws and no one else would kill again. Even if 99% of cases work out we need to toss out all the laws and redo them so we feel better! It will solve everything.

Some sarcasm in all of that

[geek tragedy]

25. Burden should be on defense for self-defense claim.

Otherwise, prosecution is left with a near-impossible task of proving a negative--prove that someone wasn't afraid.

[hack89]

30. So guilty until proven innocent?

in the absence of eye witnesses isn't that also a near-impossible task for the accused?

[geek tragedy]

58. No, just make it a prepondernace of the evidence standard.

If the prosecution shows it was unlikely that lethal force was necessary, guilty of some crime.

If the defense shows it was likely that lethal force was necessary, not guilty.

As it stands, it's really hard to convict a white person for killing a black person if the white person has a scraped knuckle.

[hack89]

61. Under that standard Z still walks

because there were no eyewitness that could attest to Z's mental state. How does the state rebut what Z was thinking, especially when their own witnesses collaborated important parts of Z's story.

[geek tragedy]

71. There was no testimony that he tried to escape and leave.

He had an affirmative duty to run away if possible.

The law should not give racist vigilantes a blank check to assault and murder any black person they see fit, so long as there are no witnesses.

[hack89]

81. There is no evidence he had the opportunity to escape and leave.

he could argue he couldn't escape because TM was on top of him. Unfortunately there would be a prosecution witness that could collaborate that.

[geek tragedy]

85. The unserious nature of his 'injuries' seems to indicate he didn't try but rather

went instantly to the gun.

It should be automatically manslaughter if you start a fight and it ends with the other guy dead. End of story.

[hack89]

93. The nature of his injuries are irrelevant to prove state of mind

he didn't have to actually be seriously injured to feel threatened.

Here is an hypothetical to show why it would be a bad idea. I punch you. You commence to beat the crap out of me. I stop fighting and try to escape. You won't let me escape - therefore prolonging the fight. You pound my head on the ground and show no signs of stopping.

Why do you have the right to kill me over a fistfight? Don't you have a moral obligation to let me escape once I stop fighting? Don't you think you step well over the line of self defense?

[geek tragedy]

98. The standard is 'reasonably in fear" but that language gets ignored

due to the beyond a reasonable doubt standard.

I reject the idea that society's laws should maximize the incentive and opportunity to engage in acts of extreme violence.

Maybe you'd be less likely to throw that punch.

[hack89]

103. You want a system that allows people to legally beat other people to death

just because they started a fistfight.

[geek tragedy]

105. Better than allowing kids to get shot because they're black. nt

[hack89]

109. So as long as the right people are killed, it is ok with you?

that's a pretty fucked up sense of justice.

[geek tragedy]

112. Pretty hard to beat someone to death with mere fists.

I'm more comfortable letting someone who throws a punch bear the fruit of his action rather than letting racist vigilantes gun down black kids in modern day lynchings.

[hack89]

121. Happened 745 times in 2010

as an example, more people are beaten and kicked to death than are killed by assault rifles.

http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl08.xls

[geek tragedy]

125. Compared to 11-12,000 homicides by hand guns. nt

[hack89]

133. More like 6,000. Which is too high

but still no reason to legally allow people to beat other people to death - which is what you are advocating.

[geek tragedy]

140. No, I'm advocating not letting them start fights and end them by shooting the other person. nt

[hack89]

144. Reasonable goal - lousy way to get there. nt

[cali]

189. that's a problem with our gun saturated culture more than anything else.

[geek tragedy]

193. The gun lovers want to have it both ways.

Saying this was legally self-defense and also saying well yes guns keep people safer.

Undisputed that if Zimmerman had been unarmed, there would have been no fatality that night.

[cali]

195. I agree with that.

[onenote]

142. Yeadley Love

Virginia lacrosse player Yeardley Love was killed by her boyfriend bashing her against a wall. If Yeardley had a gun and had used it when her boyfriend first grabbed her (but before he had inflicted any injury on her), am I correct in my understanding that you would not allow her to claim self defense?

[geek tragedy]

145. Since he broke into her home with the intent of killing her, I would presume

self-defense.

[onenote]

154. What if she had invited him over? Or she had gone to his apartment?

[geek tragedy]

155. And he started beating the shit out of her? Same difference. nt

[onenote]

156. He had grabbed her, but hadn't yet beat the shit out of her

Does she have to wait to defend herself until he has started beating her? (Plus I thought your point was that its hard to beat someone to death with fists and therefore someone armed with fists shouldn't be at risk of their victim shooting them).

[geek tragedy]

157. We can do this dance all day. If he initiates the conflict, she can shoot him

in self-defense.

Especially if there's nowhere for her to escape.

[onenote]

160. And if there is no witness? What then?

He says she pulled a gun and he tackled her and tossed her against the wall, which killed her. Do you let the jury decide? Do you say he has to prove that is what happened or that the state has to prove it isn't what happened?

What about the following variation -- she goes to his apartment with a gun to break up with him. She ends up shot. No witnesses. He says she pulled her gun first. There even is a bullet in the wall from her gun. The state claims that her shot was fired after his. There ballistics evidence is inconclusive (i.e., angle of shot into wall could have come from her shooting either before or after she was shot). Does he walk? Should he? If he has to prove that his version is more likely to be true than the state's version, how does he do that?

[geek tragedy]

162. So, in this completely hypothetical example one person goes to the other's

place with a gun, and wounds up dead from her own gun's bullet?

We'd have to have lots of testimony to see what's credible.

[onenote]

165. No , she ends up dead from her boyfriend's gun

He shoots her. Claims it was after she shot at him. There is a bullet in the wall. The state concedes that the bullet in the wall is from her gun but puts in evidence an expert who testifies that based on the angle with which the bullet struck the wall, it had to be fired from her gun while she was on the floor. The defense puts on an expert that offers testimony that contradicts the state's expert. There are no eyewitness, no earwitnesses. Nothing.

If you'd like, you can reverse the hypothetical and have him be the one that is shot by her and his gun has been fired into the wall.

Preponderance standard: how does a jury conclude that the defendant has shown that his/her version of events (that they fired only after being fired at) is more likely than the other version? Should that be enough to jail someone.

[geek tragedy]

166. You're asking me to serve as the jury without seeing actual forensics or testimony.

To me, the act of going to someone's home packing a weapon would seem to be evidence of ill intent.

[onenote]

168. Or maybe its evidence of a desire to be able to protect oneself.

Also plausible. No other evidence. Stipulated that the state's version is equally plausible as the defendant's version. Convict?

[geek tragedy]

171. To me, if you need to carry a gun into a place for self-protection, you ought

not go into that place.

Would indicate to me that the person anticipated the gun fight.

[onenote]

79. based on a real world example

Victim and defendant, both residents of a rural community, have a history of bad blood and violent encounters. Defendant claims that he and victim were driving down the same rural road (with the victim's truck in front of defendant's truck) when the victim stopped his vehicle and backed it up blocking the defendant from going forward. The defendant claims the victim pulled out a gun at which point the defendant grabbed a rifle that was in his truck and shot and killed the victim. A loaded weapon is found under the body of the victim. There are no witnesses.

The state disputes the defendant's version, arguing that the defendant set about to ambush the victim, following him and forcing him to stop. The state claims that the defendant drew his weapon first and waited until the victim pulled his gun in response and then shot him.

If the burden is on the defendant to prove that his version is more likely the truth than the state's, the defendant probably is convicted because at best its a tie -- both stories appear equally plausible.

If the burden is on the state, the defendant likely goes free because a jury probably would find that there is reasonable doubt as to the state's version of what happened.

Which would be a better result?

[geek tragedy]

84. There would be forensic evidence available, there would be fingerprints on the gun

trigger or there wouldn't, blood spatter etc.

The jury should look and see which version makes more sense.

The jury should not presume the victim to be guilty of attempted murder.

Trayvon was presumed guilty of attempted murder by that Florida jury. Under Florida law, you really should kill anyone you get in a fight with if there are no witnesses. Don't stop with the punches, gotta finish your opponent off.

[onenote]

91. How would any of that evidence indicate who pulled their weapon first?

Go back and re-read the example.

Under your preponderance standard, the law would effectively presume that the shooter is guilty unless the shooter can prove by a preponderance of the evidence that the victim shot first. In the case as stated, there is no evidence that could convince a jury that one version is any more likely to be true than the other. The evidence shows that the victim had pulled a gun. But it doesn't show who pulled a gun first.

[treestar]

67. Er, in such a case the defendant has admitted to killing someone

the state already has guilt as to that beyond a reasonable doubt. Defendant is saying, "but . . ." Killing someone is a major thing to admit having done.

[hack89]

77. Not all homicides are a crime

if the state wants to convict someone of a crime, they have the burden of proof. It is that way in every state but one.

[Lasher]

148. What state is that?

[hack89]

149. Ohio. nt

[Lasher]

151. Thanks.

Please elaborate.

I like your debating style, BTW.

Edit: I found it myself. 2901.05 Burden of proof - reasonable doubt - self-defense.

[treestar]

232. They have the burden of proof that there was a homicide

and that it was knowingly done. Defendant admits that. Traditionally, Defendant then had a burden of proof on justification, insanity, or necessity, duress and a few other defenses.

[hack89]

235. Only one state in America puts that burden on the accused

in self defense cases - every other state including Florida keeps the burden of proof with the state.

The accused merely has to provide a prima facia case for self defense. He does not have to actually prove it.

[treestar]

236. The one state must be Delaware

http://delcode.delaware.gov/title11/c003/index.shtml

§ 304. Defendant's affirmative defenses; prove by preponderance of evidence.

(a) When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a preponderance of the evidence.

(b) Unless the court determines that no reasonable juror could find an affirmative defense established by a preponderance of the evidence presented by the defendant, the defendant is entitled to a jury instruction that the jury must acquit the defendant if they find the affirmative defense established by a preponderance of the evidence.

(c) An affirmative defense is established by a preponderance of the evidence when the jury is persuaded that the evidence makes it more likely than not that each element of the affirmative defense existed at the required time.

Or not:

http://en.wikipedia.org/wiki/Affirmative_defense

[hack89]

237. Use of force in self defense is not an affirmative defense in Delaware - it is a justification

§ 461. Justification -- A defense.

In any prosecution for an offense, justification, as defined in §§ 462-471 of this title, is a defense.

11 Del. C. 1953, § 461; 58 Del. Laws, c. 497, § 1.;

§ 464. Justification -- Use of force in self-protection.

(a) The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.

(b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action.

(c) The use of deadly force is justifiable under this section if the defendant believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.

(d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful.

(e) The use of deadly force is not justifiable under this section if:

(1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that:

a. The defendant is not obliged to retreat in or from the defendant's dwelling; and

b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor; and

c. A public officer justified in using force in the performance of the officer's duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

http://delcode.delaware.gov/title11/c004/index.shtml

from a Delaware Trial Handbook

Under the criminal code, there are several defined circumstances where the use of force by an individual will be deemed justified and so constitute a defense to a criminal prosecution.70 For example, use of force is justified when it is required by law.71 Presumably, this is limited to the degree of force necessary to perform the act required by law. Further, individuals with special responsibilities for the care, discipline or safety of others, such as children and incompetent people, may use a limited amount of force to safeguard and promote the welfare of such persons.72

Justification is not an affirmative defense placing the burden of proof on the defendant. Instead, the defendant must only come forward with some credible evidence of the existence of facts making the act justifiable. If the defendant does so, he or she is entitled to have the matter considered by the jury on the basis that the burden is on the prosecution to prove absence of justification, and if the defendant’s evidence raises a reasonable doubt as to justification, the defendant is entitled to a judgment of acquittal.

Self-Defense. Perhaps the most common justification is self-defense. Use of force in self-defense is justified where the defendant honestly believes that force is immediately necessary for self-protection against the use of unlawful force by another person on the present occasion.77 The defendant must show that he or she believed that force was necessary and that his or her response was an immediate reaction to a present necessity.78 This is a subjective test.79 Since the time available for deliberation in these circumstances is generally limited, the defendant may estimate the need for employing force in self-defense under the circumstances as the defendant believed them to be at the time, without retreating, surrendering possession or doing any other act that the defendant has no legal duty to do or abstaining from any lawful action.80

The use of deadly force in self-defense is justifiable only if the defendant believed that such force was necessary for self-protection from death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat.81 Deadly force is not justified, however, if the defendant was the initial aggressor and had the purpose of causing death or serious physical injury.82 Nor may a defendant use deadly force if the defendant can retreat to a place of complete safety.83 A defendant, however, is not obligated to retreat from his or her home or place of lodging, whether or not the defendant was the initial aggressor.84 A defendant is also not obligated to retreat from his or her place of work, unless the defendant was the initial aggressor.85

http://www.delawgroup.com/dth/?page_id=155

[christx30]

158. There was a story about a year ago

where a woman, who's husband had died of cancer, was at home alone with her baby. Two men tried to break into her home to steal dead husband's cancer drugs. Woman calls 911. Cops are 45 minutes out (she was way out in the middle of nowhere). Woman has a shotgun. She keeps telling the men to leave. She's terrified. Guys keep trying to break in. She asks the 911 operator if she can shoot at them. The operator says, to effect "You do what you feel you need to do to protect yourself and your child."
Woman shoots and kills one of the men. The other fees. Police show up a while later and find the other guy.

Would you say this case would be a "major thing"? Would you call this a crime?

[treestar]

233. It is a major thing

And of course the lady showed self defense. Plus she was in her home.

[Blue_Tires]

187. So help me out here, then

Legally, what should Martin have done to NOT get killed that night?

[hack89]

198. His actions are not the issue here - he did nothing wrong

the problem is the lack of eye witnesses that could undermine Z's story. Having prosecution witnesses collaborate parts of Z's story certainly didn't help.

Z walked because the prosecution could not prove that he had no valid justification for self defense. He was assumed innocent going in and the state could not prove guilt. It doesn't mean that Z's story is true - just that there is enough doubt that the state's story was true.

[Blue_Tires]

200. Well, IMO there is a

gap in 'the system' somewhere if you're doing nothing wrong, end up dead by another man's hand and no one pays a price for it...I guess that will be something for sociologists, legislatures and law schools to chew on for years to come...

[hack89]

201. The state has to prove guilt. Which requires hard evidence

it is not there in every case. Not every case has can be resolved.

[Blue_Tires]

202. that I well know...

given the precedent, all I can add is that I know now to shoot first should I find myself in Martin's position...

[hack89]

203. Make sure there are no witnesses or you are off to prison. nt

[Blue_Tires]

205. LOL...Witnesses or no, the state will find a way to lock me up

[hack89]

206. Well, being a Mets fan that is perfectly understandable

[premium]

33. Once you start down that slippery slope of making the defense prove a claim

then where does it stop? What other alleged crimes would the defense have to prove their defendant's innocence?
No thanks, the State should ALWAYS have to prove a defendant's guilt beyond a reasonable doubt by the preponderance of the evidence.

[geek tragedy]

46. The law as it is protects white people's ability to kill blacks.

In fact, it pretty much encourages it.



It is very rare that white jurors are going to be convinced beyond a reasonable doubt that another white person feared for their life from a black man.

I think white people need to be discouraged more from shooting blacks.

[Nye Bevan]

57. Do you think the 5 white jurors on the Zimmerman jury were racists?

Would you yourself be able to be a fair juror on a trial regardless of the victim's race?

[geek tragedy]

63. See this video:

Trayvon Martin was executed with no such considerations of his presumed innocence. We should not empower gun-toting vigilantes to shoot people on sight and then hide behind a metaphysically implausible standard required of prosecutors.

[SomethingFishy]

196. Thanks for posting that..

I saw it yesterday and hoped that it may help some people see that we are still a racist country. I find it interesting that people who support this verdict don't think that had Zimmerman been black and Martin been white that Zimmerman would have been arrested on the spot and would be in jail right now.

This case was about race from beginning to end. People can talk all the shit they want about the justice system, the jury, the police, the laws, none of it matters. It all boils down to the color of their skin. As your video plainly shows. I guess gender may have something to do with it as well as the white girl actually got help stealing the bike.

[premium]

60. You can post all the graphs you want,

it doesn't change my mind that the burden of proof should always be on the state to prove a defendant's guilt, not the other way around.
Yes, that is a problem, but you don't fix it by making it the defendant's burden of proof to prove innocence.
The first change I suggest is to repeal SYG laws, that would do more than your suggestion.

[geek tragedy]

66. This wasn't SYG. This was "white jury must find no reasonable doubt

that another white person was afraid of a young black man."

Under Florida law, Trayvon Martin was presumed guilty by George Zimmerman and the jury.

[pipi_k]

163. Well then...

maybe a major point to consider in choosing a jury should be the race of the plaintiff/victim.

If the plaintiff/victim is black, then so too should be all the jurors. Just to take away the issue of "racism" among the jurors.

I have a feeling, though, that even if all six of those jurors had come back with the same verdict, there would STILL be people here accusing them of being "racist".


NOTE: Above suggestion about choosing jurors based on race of victim half-sarcasm. In case anyone assumed I was being totally serious.

[anomiep]

230. How was that graph actually made?

How was that graph actually computed? Do you have a source for the data?

It looks like it's a delta, and "The figures represent the percentage likelihood that killings will be found justifiable, compared to white on white killings', which suggests it could be a probability delta, given that a negative probability is impossible, but 'percentage likelihood' cannot go beyond 100%, so a delta would have to range from -100 to 100 (0 percent probability on one subtracting a 100 percent probability on the other, Yet we have the white-on-white portion of that tripling that maximum - so that can't be how it is computed.

What was the actual computation done for that graph? (I am not saying it is inaccurate, I am just saying I don't see from the statement on the graph a clear representation of what it is actually computing, and I'd like to know what 'compared to' really means there. Edit: I found the PBS article and am reading).

[treestar]

70. Not so, there have always been such rules

and they don't tend one way. Further your second sentence is nonsense - the burden of proof is either reasonable doubt or preponderance of the evidence (a lighter burden, applicable to plaintiff's in civil cases - which is why so many people were confused OJ was acquitted in criminal court but found liable in the civil case.)

[premium]

82. You're right,

I worded that badly, I meant that the State should ALWAYS have the burden of proving beyond a reasonable doubt that the defendant is guilty, not the other way around.

[Ohio Joe]

38. No.

The burden on the defense... No, never. A legal system should not operate that way.

[geek tragedy]

53. Preponderance of the evidence standard.

Otherwise, expect a lot more George Zimmerman cases where the black person getting shot gets zero due process rights.

[Ohio Joe]

83. "It is better that ten guilty persons escape than that one innocent suffer"

http://en.wikipedia.org/wiki/Blackstone%27s_formulation

I believe in this... The burden must be on the prosecution IMO.

The issue at hand is not 'guilt' or 'innocence' for GZ, the issue is with the current law if Florida... The law allows murder.

[geek tragedy]

88. The law in Florida makes vigilantes agents of the state and presumes

victims of vigilantes to be guilty.

Would you agree to make it an automatic manslaughter conviction if one initiates a confrontation and it winds up with the other person dead?

[Ohio Joe]

97. No... I would change the law, not simply go to one side or the other with it

As I said, The issue is the law. The real problem is not what GZ did... That was obviously criminal. The issue is the law, it makes it legal to murder people.

[geek tragedy]

99. What about the law would you change? nt

[Ohio Joe]

117. I am very poor at 'legalese' speak...

So I do not know exactly how something like this should be worded. In concept... I am not opposed to SYG laws, I do not think people should have to back down from criminals. I also do not think people should be allowed to determine that someone walking down the street is a criminal because of the color of their skin and that they are wearing a hoodie... And that is exactly what George Zimmerman was allowed to do because of the law.

No. I do not know how exactly the law needs to be changed but the fact is, that the law is the real problem... It will allow for more murders.

[geek tragedy]

118. The problem is that legally nothing Zimmerman did before the two

met was relevant.

[Ohio Joe]

127. Agreed

I see that as the core issue... The law allowed this. It is the law that needs to change, not the process we have of prosecution and defense.

[onenote]

86. Another hypothetical for you

Defendant determines partner has been unfaithful and angrily decides to confront partner. Knowing that partner owns a gun, defendant takes own weapon. Partner ends up dead. There is a bullet from the partner's gun in the wall. Defendant claims that partner pulled weapon first, fired and missed, at which point defendant shot partner. State claims that defendant drew first and shot first and that the partner, having been hit, fired wildly before dying.

Burden of proof on defendant by preponderance? Defendant probably convicted.
Burden of proof on state? Defendant probably acquitted.

Which is the right result?

[Dawgs]

43. You're damn right it should.

Otherwise you can get away with murder.

[cali]

47. no, it shouldn't. that's not how our system works.

Yes, people sometimes get away with murder.

[Dawgs]

54. The system has failed miserably.

It works most of the time (which I don't think it has) is not good enough.

[geek tragedy]

75. Some people=white people. Black people almost never get away

with claiming self-defense when killing a white person.

Making it so difficult to prove that the killer wasn't in reasonable fear for his life has a pronounced racist effect.

[Blue_Tires]

191. I fear it happening much more often now

Instead of hiring hitmen or planning intricate, complex murders, I'm surprised more people don't pull the "self-defense setup"...It seems laughably easy, the shooter is the only witness, and the courts are increasingly acquitting cases with *very* flimsy narratives...

[disillusioned73]

36. in regards to defendants testifying...

I haven't been following this whole process (the Zimmerman trial) around these parts or elsewhere so this may have been discussed before.. I was just wondering why the defense was essentially able to have Zimmerman testify in his own defense by showing those videos and the prosecution was unable to cross exam.. were the videos even challenged by the prosecution??.. it just seems like such a controlled and obvious advantage for the defense to put up Zimmermans "story" with no rebuttal or direct questioning of the facts by the prosecution - maybe I'm off base here.. but it just didn't seem right to me.

[wercal]

45. Short answer - the defense didn't present the video

The prosecution did.

[disillusioned73]

52. really...

Wow, now I can't help but question the prosecutions competence..

[wercal]

73. They were trying to point out discrepancies in Zimmerman's story

...in particular, they were trying to show that his story during the re-enactment differed from statements made in the Hannity interview, which they also played in court.

A dumb idea on their part. I would think with all the contradictory testimony about whose voice was heard screaming on the tape, the jury would absolutely yearn to hear Zimmerman's voice...and be very disappointed if they didn't get to hear him speak. The prosecution fixed that problem for the defense.

[Yo_Mama]

220. I think they did it because otherwise the defense would have?

Florida is a full-discovery state. Everything the defense has the prosecution has, and everything the prosecution has the defense has.

I doubt the prosecution could make its case without giving the defense the chance to introduce the video, so I think the prosecution decided to try to nullify it.

[Lee-Lee]

102. The problem is

The PROSECUTION were the ones who played the videos and entered them into evidence. Not the defense. The prosecution can't object to what they do.

They thought that they could point out enough inconsistencies in his story to outweigh his claims of self defense in the videos.

So because they did that, Zimmerman got to tell the jury his story, via video, without being cross examined.

The prosecution essentially handed them a major gift by using the videos.

Irony of it all, had he done what most people do after a self defense shooting and asked for a lawyer before making any statements he never would have made any videotaped statements, and therefore would have had to testify. His doing a dumb thing worked for him thanks to a dumber prosecution strategy.

[Dawgs]

37. Bullshit. The desired outcome is to not make murder easy to get away with.

Completely different than 'making it easier for the state to prosecute'.

[cali]

56. bullshit back at you. Every change suggested is either unconstitutional or

gives the state more power.

it's fucking moronic.

[Dawgs]

68. Defending our crappy laws is still not a good argument when people get away with murder.

And, reasonable adults could change the system so that power could be distributed appropriately to avoid people getting away with it.

Amazing that anyone, especially on DU, would continue to defend our current justice system.

I guess we're not all reasonable.

[onenote]

94. How do you feel about Miranda rights?

A lot of folks over the years have criticized it as allowing a defendant to get away with murder.

What other protections that are given defendants would you do away with?

[Dawgs]

107. I want laws and rights to make sense.

If a law allows defendants to get away with murder then they should be re-evaluated.

If a right hurts a defendant in some way then it also should be looked at.

My argument is not 'pro defendant'. It's what right or wrong.

If someone can kill someone in cold blood and get away with it then there is something wrong with the system and it should be fixed. Same as someone being thrown in jail for years for possessing pot.

Our system has many flaws. Reasonable adults should be able to at least to try to fix them.

[RobinA]

184. Or The, Er... Fourth Amendment

I know personally of a murderer who got away with it because of a bad warrant. The evidence deemed poisoned was utterly incriminating, but out it went.

Oh, and incidently, the murderer who walked in this case was black man and the victim white woman, so protections do cut both ways.

[rdking647]

39. how many innocents are wrongly convicted

how many people has barry scheck exonerated?
i dont want the state to have any more advantages in prosecuting people
its not that i dont trust them,but i dont

[wercal]

42. Agreed

Some of the posts I've seen scream that Z should have been convicted of something. Many don't sem to care what that something is, or whether or not it fits the law...they just want a conviction.

...And I've seen the jury members called some pretty nasty names on here....because they didn't ignore the jury instructions, and decide based on emotion alone.

[DrDan]

51. knee-jerk reactions just deflect from the real issues

We need to recognize the heart of the problem. Special interests (gun lobby) are fashioning laws to suit their agenda and buying politicians to put "their" legislation into motion. The "right to carry" is being enhanced beyond that which is safe for citizens - bars, parks, special events . . . even schools. This needs to not only stop - but be reversed for the good of everyone.

More access to guns coupled with enhanced self-defense/SYG legislation - a deadly combination.

Should GZ had not had that gun this tragedy would not have occurred. But he did - and he had it legally. Those on neighborhood watch should NEVER carry guns - they are not law enforcement. Their responsibility is to alert the authorities and follow their directions. Laws should be enacted to insure this will not happen again.

Should he have followed the "request" of the dispatcher? Sure he should have. But he broke no law in not doing so. Lets put some teeth into law enforcement "directives" and make it against the law to NOT follow dispatchers orders.

The problem is not with the jury. They were following the jury instructions.

The problem was not that the jury was made up of 6 women (as claimed yesterday). Ridiculous.

The problem was not that the jury was all white. They followed the jury instructions and, as far as we know, carefully analyzed all the evidence and testimony - nearly 16 hours of deliberation.

Time to get past the hyperbolic rhetoric and put into motion actions that would prevent a repeat.

[friendly_iconoclast]

111. "...make it against the law to NOT follow dispatchers orders."

That's a remarkably statist position to take.

Look, I understand the frustration at seeing the racist lunk Z getting away with manslaughter (at the least)
but that's a very dangerous path to start down.

[DrDan]

128. not sure I see the danger in asking one who calls a dispatcher and

is told to "not follow" someone, to actually not follow them but to await actual law enforcement.

if asked at the scene of some crime to move or stay out of the way by a law enforcement agent, is it not their responsibility to do exactly that? Why is a dispatcher's request any less valid?

[Lee-Lee]

132. A dispatcher is not a sworn officer

And has no legal authority as such in most states. Also see my other post on the subject.

[friendly_iconoclast]

136. Dispatchers aren't cops, and even cops don't have the right to just order others...

...to do their bidding.

How many people got illegally arrested at Occupy rallies because they didn't move when ordered to,
even when they had every right to be where they were?

[DrDan]

173. well that being the case - and I have no reason to doubt that it is -

all of the rhetoric around here for the past couple of days justifying an other-than not-guilty verdict because GZ followed TM, even when told not to, is meaningless.

and to respond to your earlier comment about being frustrated - let me say that I am not. I happen to agree with the verdict - the charges were not proven.

That said, I still think there are lessons to be learned and smart actions that can be taken to prevent repeats.

[Lee-Lee]

131. And no department would want the liability

If you make the orders of dispatchers legally binding, and somebody gets hurt following them because the dispatcher either didn't have a complete idea of the circumstance (they never do) or the person just gave bad advice, then that agency they work for will face a lawsuit every time.

Have you ever called 911 for a medical emergency and grown very frustrated at the seemingly stupid questions they asked? They always ask them, for a very good reason. They are following a specific flowchart and protocol that has been tested and doctor/lawyer approved. As long as they use that sequence of questions, they are working the correct medical protocol and the company that developed them will accept all liability and defend them in court. If they skip any or change any, then they and the employer are on the line. Most agency that do emergency medical dispatch carry malpractice insurance on dispatchers for this very reason.

I hate to imagine the liability if every directive given by a dispatcher was considered legally binding under authority of law.

I also hate to imagine the additional stress on dispatchers. I worked some shifts doing that when I busted my ankle and couldn't go out on patrol, and those folks are usually multitasking and doing 2-3 calls at once plus other stuff.

[DirkGently]

55. There's an old saw lawyers quote about "Hard facts make bad law."

It comes from those times when a court "finds a way" to make something happen legally, because the facts seem to call for it, when the law doesn't. It refers to case law that ends up creating problems down the road because a judge set a bad precedent in reaching for a desired result.

That said, there may be things we can do. I think ordinary self-defense is skewed when people *walk the streets* with a weapon.

Defending the home has long been recognized as a special case where there is no "duty to retreat."Stand Your Ground laws turn that on its head, and give people the right to "stand and fight" even if they could safely escape the situation. It's a terrible concept, and the case at hand didn't involve a question of the ability to flee, it did involve a person initiating a series of events, while armed, that wound up with a claim of lethal self-defense.

It's possible we can do something about that, without chucking the 5th Amendment. Certainly SYG should go, everywhere, as soon as possible. Beyond that, if we are going to allow large numbers of people to walk around with firearms, we could enhance the standard for self-defense. Or create a higher standard for initiating a confrontation while armed.

As it stands, I think there is a dangerous mindset, reinforced by this case, among a few people with dreams of "cleaning up the streets" or what have you, via the 2d Amendment and a warped notion of what the responsibilities of an "armed citizen" should be.

[Yo_Mama]

59. it does need better prosecutors, in this particular case.

But yeah, your basic point is certainly a good one, and I believe this needs to be repeated.

I don't want a situation in which people the government finds inconvenient wind up in jail for 10 years for writing slogans on a sidewalk in chalk. And that's what could happen.

You can have the form of a justice system without any justice.

Whatever else we do to address this situation, it cannot be to create a situation in which the accusation becomes the crime. That's already the case for too many low income accuseds.

[treestar]

64. I don't see a problem with going back to the traditional burden of proof on self defense

Florida has officially made it too easy for a defendant to get away with murder or assault. Especially murder, where that person can't tell their side of the story.

The defendant traditionally had the burden of proof by a preponderance of the evidence on the question of self defense. That account for the fact defendant admits to a homicide and balances out the fact that victim can't tell their side of the story.

[randome]

87. That's a good point, too.

[hr][font color="blue"][center]You should never stop having childhood dreams.[/center][/font][hr]

[onenote]

96. The approach taken by Florida has been the majority approach for over a decade

possibly longer.

[onenote]

115. See posts 79 and 86

Also, the approach taken by Florida is the approach that a majority of states have taken for many years now.

[ksoze]

74. Agree - this case should not change centuries of law

The knee jerk reaction to make it a police state after the verdict is stunning. I understand the emotion for Trayvon who should not have died that night. But this case is not the norm and stacking the deck even more for the prosecution would be traumatic for the 99.9% of cases where the defendant has a PD and no money to mount a defense.

[Eric J in MN]

76. Neither side should be allowed to show animation to the jury.

Seeing is believing.

The effect of showing an animation, as the Zimmerman defense did, taints the trial.

[Blue_Tires]

186. the fact that the cops even helped him make it was appalling

[randome]

80. Good call.

[hr][font color="blue"][center]You should never stop having childhood dreams.[/center][/font][hr]

[DCBob]

90. I think you and many others are looking at this the wrong way.

The "crime" has already been established. Zimmerman did indeed kill someone and he confessed. Thats the part where the prosecution should always be required to provide proof beyond reasonable doubt. However, on the self defense claim, I dont think its is unreasonable to place the burden of proof on the killer rather than on the prosecution. After all the, victim cant provide any defense since he or she is dead. Seems to me the the dead person should get the benefit of the doubt rather than the killer.

[Progressive dog]

101. That makes sense nt

[Silent3]

123. If someone were to force me into a life-or-death situation...

...I don't want to give that person, who already did enough to fuck up my life, the power to put me in a position of being guilty until proven innocent, just because I defended myself.

I say this, by the way, as someone who thinks Zimmerman should be in jail right now. My idea of valid self-defense does not include going way out of your way to cause the very circumstances that lead to deadly confrontation.

[DCBob]

213. Why should the killer get preferential treatment?

The deceased should at least have the same benefit of the doubt of being innocent.

[Silent3]

218. It's too late after such an event to do much for the dead person.

You sure as hell don't fix that problem by burdening the living with proving innocence. That gives someone who may very well have been the person who created the mess way too much power from beyond the gave to keep making a mess out of the life of someone who didn't deserve it.

Some things can't be fixed, and trying to make one person more screwed than they'd otherwise be is no way to achieve balance.

None of this applies to Zimmerman because, despite the technicalities of the law, errors by the prosecution, and possible misleading jury instructions, Zimmerman clearly didn't have a dangerous situation thrust on him out of the blue -- he went out of his way to create it.

[DCBob]

219. Its never too late for justice.

[NCTraveler]

95. I missed where people said a defendant should be forced to testify.

That is such a poor idea I wouldn't even know where to start. I would think that people here would have greater critical thinking skills than that.

[mountain grammy]

100. Let's face it, our justice system looks good on paper..

It just doesn't work so well in reality.
Anyone who really believes the American justice systems "works" like it should has never been involved in the American justice system.

[HardTimes99]

106. Yesterday, in my frustration, I was toying with the idea of altering

or eliminating trial-by-jury system (placing my blame for the verdict on the jury).

As is so often the case, your calm and compelling voice has brought me back down to earth.

I still disagree strongly with that jury's verdict - I don't think Zimmerman was defending himself at all - but I will accept it.

[BlueJazz]

108. I believe it should be easier for the state in one area of prosecution.

Since well-heeled (or as in the Zimmerman case), the defendant has tons of money to buy the "high-end" type of lawyer, the state should also be allowed to import a lawyer or team of equal experience and expertise.

I'm not firm in my belief about this and hope those who disagree will explain why their thoughts are different.

[Shrek]

135. That's pretty much what happened

The governor appointed a special prosecutor, who in turn hand-picked the team that prosecuted the case.

[BlueJazz]

138. Oh..I didn't know that. Thanks!

[leftstreet]

204. Not exactly. Original Prosecutor called for a Grand Jury

then he recused himself...for some mysterious reason

Angela Corey, a GOPer nitwit, was then appointed

again for some mysterious reason

[rpannier]

116. Thank you

Couldn't agree more

[closeupready]

120. Agree completely. K&R.

Thanks, Cali.

[marble falls]

122. Reasonable and rational.

[Bake]

124. I couldn't agree more.

We used to believe it was better for 100 guilty men to go free than for one innocent person to go to jail. Apparently not any more.

Bake

[AllINeedIsCoffee]

126. Correct. Relaxed gun laws are more to blame for this than the court system.

Sick of average citizens who couldn't make it or didn't even try to make it as an LEO taking matters into their own hands.

No one without a uniform should have a right to patrol a neighborhood while armed.

[caseymoz]

129. Without any constitutional changes . . .

. . . Or changes in the principle of rights, Zimmerman's actions were at least criminally negligent. He should have been convicted of involuntary manslaughter or at least wreckless endangerment.

I think the civil suit coming up will probably nail him. He took a harmless situation and turned it into a fatal one.

[Blue_Tires]

134. I'd just be happy if states heavily revised the so-called "self-defense" laws

They can START with that...

[Lee-Lee]

137. What would you revise?

[Blue_Tires]

169. Find some way to make it truly "self-defense" instead of

"first-strike-offense-under-the-guise-of-self-defense" because the legal leeway to define it right now is just too much...

[MadBadger]

141. Saw somebody on the DU facebook page advocating for "Dexter" style justice.

For those who dont know the show, that would mean for a vigilante to kill Zimmerman (for the proven criminals who escape the hand of justice).

It was pretty disgusting

[cali]

227. yikes. that is alarming.

[markiv]

143. combine all that with support for NSA surveillance

and you would have a total police state where a suspect would have no rights at all

[anomiep]

146. There are actually some things the prosecution did in the zimmerman case that are troubling

But it is being lost in people's anger over the verdict. Which I understand, but at the end of the day, if you've got a defendant up there, and the prosecution is essentially trying to swing illogical arguments and what appear to be some outright untruths in *this* case, which is being broadcast live, it seems pretty clear to me that they're going to be doing those things when it's *not* being broadcast live.

The first is, withholding evidence. The only reason the defense knew about the dump of phone data the prosecution had completed is because an IT guy went 'wait, this wasn't given to the defense?' and eventually went to a judge about it. He's now been fired, supposedly not for that, but it's pretty reasonable based on the circumstances to think it may well have been for that. Fortunately the system for that is working and there will be a hearing and the like on that issue - but what if it'd been a less publicized case? What if the IT guy just assumed the prosecution had handed it over rather than asking?

There are also a couple of things from closing arguments but I think people are angry enough (justifiably) that they'd just consider them minor. But I wouldn't want the prosecution doing certain things it was doing if I were an innocent defendant - and since the point of a trial is to get to a finding of guilty or not guilty, how can it be reasonable to give the prosecution a pass on stuff like that just because a guilty is what people wanted in this case?

[Politicub]

152. Zimmerman shouldn't have been able to walk after murdering someone

I don't know what the solution is to fix our racially biased system, though.

The problem with the Zimmerman case stems from a lax response by the authorities in the critical window of time immediately following the murder.

I don't want to remove the burden from the state, and wouldn't want to see self-incrimination doctrine amended.

But something is terribly wrong when someone like Zimmerman gets to walk.

[scheming daemons]

153. Ben Franklin said our system was set up so that..

"It is better that 10 guilty men go free than 1 innocent man be imprisoned."

Sometimes guilty people beat the rap. But OJs and Zimmermans are rare.

The system will never be 100%. But it is a pretty good system. Zimmerman like cases are so newsworthy because they're rare. The exception that proves the rule.

[dembotoz]

159. been on jury duty and in my county in wisconsin if the cop says you did it you are guilty

really a shame we let republicans breed

[Jackpine Radical]

182. A widespread phenomenon.

I'm aware of a case in a northern WI county where the defendant was accused of drug dealing to the same prosecution witness on 3 occasions. The defense was able to prove the witness was lying about 2 of the supposed stings. They couldn't absolutely prove he was lying about the 3rd. The jury voted to convict. I'm told the judge put his head down in his hands upon hearing the verdict.

The defendant's main offense was that he had long hair & tattoos & looked like a criminal. I knew the guy outside the courtroom, as well as playing a professional role related to his defense. He was not a criminal. Even the probation agent who wrote the pre-sentence investigation told me he was not a criminal, and thought it was a miscarriage of justice.

You see a few too many cases like that and you begin to sour on the whole system.

[avaistheone1]

161. I agree,

also on the point that what needs to change are the stand your ground laws.

[Android3.14]

164. They say justice is blind, and they say that for a reason

There was never going to be a solution to this trial that would have any grace or sense of fair justice. This, at best, is the awful exception that proves the rule.

[Deep13]

167. pretty much agree...

restore the Common Law definition of self defense and the CL definition of murder. That will go a long way. Also go back to full-size juries.

[mzmolly]

176. I want to make it easier for a kid to walk home

after purchasing candy.

[Savannahmann]

179. I'd be happy to discuss the issue

I'd be happy to have this discussion in the general public. My first suggestion to make trials more fair for everyone would be lie detector tests for Police. As it is obviously true that Juries give the Police greater sway when they tell the story, the old image of four people who were in the car who swear the driver did not run the stop sign, and the one cop who says they did, is undeniable. Additionally most of the evidence used in the court room has been collected by the Police, most often with no video evidence of the discovery, just a picture of the item when the found it and had placed an evidence marker near it.

My suggestion to help weed out the bad cops (I know my theory that there are no good cops, and this will cause serious short falls in police departments until they start hiring people who aren't lying abusive types) Give them a Lie Detector Test every six months. I'm not saying that failing the test will result in their being charged with criminal activity. I'm just saying that if they can't pass the test or the re-test in two weeks (I am reasonable, I admit that someone could have a bad day, problems at home, stressed over bills, whatever. So the first one doesn't do anything but trigger a two week retest. That gives the individual time to get their problems in order, and straighten out the situation so they can be relaxed for the retest) then you have to leave the gun, and badge behind. We're not saying that by failing the test, you are a criminal, we're just saying you can't be a cop anymore.

What kind of questions would I ask? General ones, we don't want to invade the police officers privacy right? Have you lied on any official forms? Have you lied under oath? Have you planted or stolen evidence? Have you seen anyone lie on official forms and failed to report it? Have you seen anyone lie under oath and failed to report it? Have you assaulted anyone using more than the minimum force necessary to carry out your duties?

Needles don't jump, you're good to go for six more months. Total time twenty minutes, make it a half hour for discussions and explanations.

The police are entrusted with extraordinary authority, and power, and prestige. They are given the ability to control the prosecution, as they did in the Martin case by stating for the record and on the stand that they believed Zimmerman. This test would have told us if we should believe them.

Again, I am not saying that failing the test and the re-test automatically lands the cop in jail. He/She just leaves his badge, and gun on the table when he walks out.

[DevonRex]

185. Great. Make it easier for racists to stalk, hunt down and murder black teens. Fucking great Cali. nt

[cali]

188. gad. and what do you suggest?

I'm all for doing away with SYG laws- and yes, I realize the defense didn't go that route in Zimmerman. As far as I can see, the Prosecution didn't do a great job and they overcharged to begin with.

[DevonRex]

190. A judge that doesn't cripple the prosecution by ruling out racial profiling?

A judge that gives intelligible and complete jury instructions? For starters.

[cali]

192. the judge could have done that under existing law, couldn't she?

[DevonRex]

197. The part that's weird is that even though SYG was not the defense,

she gave SYG instructions. Without a SYG hearing. Apparently that's how it's supposed to be done. A hearing then the defense. But what good is it if she gives the instructions without all that, thus implying that the defense exists? Then declines the prosecution request to include the part about the defense not being a defense if he initiated the aggression in the first place? That made the verdict a foregone conclusion. So, IMO, something needs to be done about SYG and jury instructions re: initial aggressor.

[midnight]

194. I agree.

[Jamastiene]

199. Have you seen this?

"Florida law states that a defendant cannot claim self-defense if he "initially provokes the use of force against himself".
This clause of the law was deliberately withheld from the jury in the instructions from the judge.

The jurors were instructed to consider the situation only after the scuffle started and were not able to include the fact that Zimmerman tracked down Martin. (Which seems to me to be the primary aspect of the whole situation.)
If they had, Zimmerman might have been considered the aggressor and therefore his whole self defense argument would have been moot and he would have gone to jail."

http://www.democraticunderground.com/10023263088

[DevonRex]

208. Exactly. Plus, she gave SYG instructions even tho they didn't claim SYG,

didn't have a SYG hearing pre-trial. And prevented the prosecution from even mentioning the possibility of racial profiling and letting the jury decide if it was a factor. She crippled them. From the post-trial presser it almost looked like that's what the DA wanted to happen. She was giddy. I was appalled.

[Rex]

207. I think a person should have a right to hire a prosecutor

and not have to depend on someone from 'the state' to do an adequate job. Seems unfair that one side gets to hire an attorney and the other has to cross their fingers.

[jberryhill]

209. In the vast majority of criminal cases...

...the defense attorney is also provided by the state.

What you propose gives wealthy alleged victims an advantage over poor defendants.

[Rex]

210. Why then did Zimmerman get to have a private lawyer then?

Florida state laws?

[jberryhill]

211. Because he has a Constitutional right to hire an attorney

The vast majority of criminal defendants do not have the means to hire their own attorney.

The answer is not to stack the deck even more against poorer people.

If you want to make it systematically easier to convict criminal defendants across the board, I find it hard to believe that would be a welcome development in terms of racial disparities in the criminal justice system.

[Rex]

212. I take your word for it, it is your profession.

Does the family of the aggrieved not have a constitutional right to hire an attorney? What I am getting at is why does one side have the right and the other does not?

Thanks for answering the questions and I am sorry if they are 'duh' questions to a professional.

[jberryhill]

214. Get a copy of the Bill of Rights

In this context, we are talking about the power of the government to deprive people of their liberty by locking people up or even executing them.

The primary concern of the authors seems not to be making sure that bad guys get punished. The primary concern seems to be making it hard for the government to lock people up or even execute them.

When you talk about "my Constitutional rights", you are including:

1. The right not to be compelled to testify against yourself.

2. The right to a speedy trial.

3. The right to a public trial.

4. The right to a trial by jury.

5. The right not to have excessive bail.

6. The right to compulsory process to obtain evidence and witnesses in your favor.

7. The right to an attorney.

8. The right to confront witnesses against you.

9. The right not to receive cruel and unusual punishment.

10. The right to be informed of the charges against you.

And a host of other ancillary procedural rights.

There is nothing, zip, nada, in there about any rights of crime victims. Again, it seems like the authors were much more concerned about giving the government unchecked power to lock people up or execute them.

We've only gotten serious about some of these rights within the last several decades or so. Even the right to an attorney was, before Gideon v Wainright, interpreted as the right to hire one if you can afford one, and not that the state should pick up the tab.

The whole scheme is biased toward protecting people against being locked up or executed. The authors of the thing seem to have been much more worried about being potential victims of a tyrannical government than being victims of crime.

[Rex]

215. Very interesting. That makes a lot more sense now.

Given their circumstances, I can see why they were more inclined to worry about a tyrannical government.

Thank you.

[jberryhill]

216. Apply it to occupy...

How would you like banks to be the ones hiring the prosecutors of those charged with trespassing during protest activities?

(Now there is a snarky answer to that question, but the point is that having "victims" able to directly hire prosecutors, as opposed to influencing their election and so on, would give the 1% a much more efficient system for locking up "undesirables&quot

[Rex]

217. Yes I could see how that would lead to unfairness.

And why they keep it to the state for that responsibility. Last thing we need is Koch-like folks being able to play the victim with endless amounts of money!

[cali]

224. what a great exchange. thanks very much for it

you just gave a master class in how to educate people on a topic.

[cali]

223. donations.

http://www.gzdefensefund.com/donat

[cali]

222. that makes no sense. crime is against the state.

and generally speaking prosecutors have good resources. Do you actually believe that most people charged with a serious crime have the money to hire an attorney? They do not.

[Rex]

225. Zimmerman did, how did that turn out?

Funny how money comes into this.

[cali]

234. Yes, ONE case where there was a defense fund

against thousands and thousands where there is not.

[Freddie Stubbs]

221. How about we only do it with defendants we don't like?

[NaturalHigh]

228. Recced.

If it ever comes to the point where the burden of proof is on a defendant instead of the state, any joe-blow cop can arrest you for possession (or the burglary down the street or whatever), a yokel assistant DA can prosecute just for the hell of it (or because he needs some wins to build up "cred&quot , and you will likely do a stretch in the state pen.

[AndyTiedye]

229. It Would Have Been Easy Enough to Convict Zimmerman Under Existing Law…

…if the police and the prosecutors actually wanted to.

[Blue_Tires]

238. So the decision is clear to me, then

when being followed, shoot first or be another victim...

That's my new mantra...