Immediately following the close of the State’s case on Friday, Mark O’Mara, the lawyer leading George Zimmerman’s defense team, stood before Judge Nelson and made his oral motion for a judgment of acquittal for his client (a parallel written motion was also submitted to the Court).

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c George Zimmerman defense counsel Mark O’Mara

The motion was well-reasoned, and strongly founded on Florida’s case law. It was also doomed to fail before a Judge who has consistently denied reasonable defense motions out of hand, while rubber-stamping motions by the State that bear not the slightest relevancy to the facts of this case.

Details matter in the law, and in any case the quick-and-short reporting of Nelson’s denial of the motion for a judgment of acquittal has already been widely reported (by us, among others). Here, we take a different approach, delving into the details of O’Mara’s motion. Part of this detail includes the full-length decisions of almost every court case cited by O’Mara in support of his motion.

Most of these court cases are gratifyingly brief and written in a style easily accessible to non-lawyers. Accordingly, throughout this piece the reader may hyperlink to the full-text of the relevant court decision back at the Law of Self Defense blog (where they join many hundreds of other self-defense related court decisions from all 50 states).

“The Good”

In today’s post I focus on O’Mara’s oral motion to Judge Nelson (“The Good”).

My next post on this subject will cover Mr. Mantei’s duplicitous response to the motion (“The Bad”), as well as O’Mara’s response in turn.

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State prosecutor Mantei

That second installment will also, of course, include Judge Nelson’s prompt and dismissive denial of the motion, delivered tersely in a two-sentence reply from the bench, followed immediately by her demand that the defense begin their case to the jury at 5PM on a Friday afternoon.

The Standards for a Judgment of Acquittal

O’Mara began by noting the legal standards that exist in Florida for determining whether a judgment of acquittal should be approved or denied.

The first issue is to distinguish between direct and indirect (or circumstantial) evidence, all of which must be considered from the perspective of being most favorable to the State. If there is adequate direct evidence raise a reasonable question of fact for the jury to decide, then the matter belongs in the jury’s realm, and a judgment of acquittal is inappropriate. If the direct evidence is entirely absent, or so slight or incredible that no jury could use it come to a verdict of guilty, then a judgment of acquittal should be approved.

If all the State can bring to the table is circumstantial evidence, however, the threshold for approving a motion for a judgment for acquittal is rather different. Where only circumstantial evidence is at play, that evidence, when viewed in the light most favorable to the State, must be sufficient to exclude any reasonable hypothesis except guilt. That is, unless the circumstantial evidence is so compelling that there exists, at the close of the State’s case, no reasonable doubt, a judgment of acquittal is appropriate.

To put it yet another way, if there exists a reasonable hypothesis of non-guilt (innocence)—that is, a reasonable doubt—before the defense has even presented their case, the State has already failed in its charge to prove guilt beyond a reasonable doubt, and a judgment of acquittal is appropriate.

Walker, Barwick:  Indirect Evidence Must Exclude Every Hypothesis of Innocence

The controlling case law on this issue in Florida is Walker v. State, 957 So.2d 560 (FL Supreme Court 2007), which in turn quotes favorably from Barwick v. State, 660 So.2d 685 (FL Supreme Court 1995). In Barwick, the Florida Supreme Court states:

[A] judgment of acquittal is appropriate if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.

O’Mara then loops back to take a look at the existence, such as it is, of the State’s direct evidence that could support the charge of second degree murder (782.04), and particularly the element of a depraved mind requiring spite, ill-will, or hatred.

He notes that the Court could, if it chooses, consider the expletives caught in the recordings of Zimmerman’s call to the police—“these fucking assholes always get away” and “fucking punks”—as direct evidence of spite, ill-will and hatred, as the State is arguing. He points out, however, that the manner in which the State is repeating the terms in Court is substantively different from how Zimmerman actually stated them.

State prosecutor Bernie de la Rionda fairly shouted the words at former Investigator Serino (since demoted to patrolman: “Investigator Chris Serino Demoted to Patrolman by Superiors”)–and prosecutor Guy gave them a similarly sinister intonation during the State’s opening statement. Anyone listening to the recordings, however, can clearly hear a tone of resignation and even frustration in Zimmerman’s voice—the resignation and frustration of a resident struggling to help protect his neighbors from a wave of burglaries and even home invasions–but nothing akin to spite, ill-will, and hatred.

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State prosecutor Bernie de la Rionda

Given that context, the State’s misinterpretation of the tone of those comments cannot be said to truly be direct evidence of spite, ill-will, or hatred, but merely speculative circumstantial evidence for that purpose. Even more clearly circumstantial, he notes, is the State’s attempts to use the same two, brief phrases to create the narrative that Zimmerman was a dangerously overzealous Neighborhood Watch participant and a wannabe cop—neither of which conclusions can be found in either of those utterances.

Given the clearly circumstantial nature of that purported evidence of a depraved mind, O’Mara argues, a judgment of acquittal is appropriate unless that evidence can disprove every reasonable hypothesis of innocence, under the standard set by Barwick and affirmed by Walker.

But this the State cannot do, O’Mara continues, because the evidence—even as presented solely by the State—establishes not merely a reasonable hypothesis of innocence, but one that is powerfully compelling: that George Zimmerman acted as he did in lawful, justifiable, and necessary defense of his life.

The State Has Failed to Controvert Zimmerman’s Claim of Self-Defense

O’Mara notes that “what is before the Court is an enormous amount of information that my client acted in necessary self-defense.” He acknowledges the most potent State argument against that claim of self-defense is the identification by Sabryna Fulton, Trayvon’s mother, and Jaharvis Fulton, Trayvon’s half-brother, as the deceased as the source of the screaming cries for help in the background of Jenna Lauer’s 911 call to police.

He observes that Jaharvis Fulton explicitly acknowledges that he is, in fact, uncertain whether the screaming is that of Trayvon Martin. He also notes the powerful internal pressure Ms. Fulton must feel to believe with all her heart that the screams are those of Trayvon Martin—because if they are not, the only reasonable conclusion is that her son brought his death upon himself. Given these circumstances, her purported identification cannot reasonably be given the weight the State desires–indeed, that the State requires to avoid a judgment of acquittal.

This is particularly so when all the other evidence is considered, even when considered in the light most favorable to the State. Zimmerman’s immediate statements to the first responder to the scene, his neighbor Jonathan Manalo, and the second responder to the scene, Officer Tim Smith, both claimed the screams as his own—a claim he has held to consistently ever since.

The Uncontroverted Evidence of Martin’s Unprovoked Deadly Attack Upon Zimmerman

There is also, O’Mara notes, no other reasonable hypothesis that can be derived from the available evidence other than that Zimmerman was under a physical attack, and that this attack was being delivered by Trayon Martin. No one can look at the photos taken of the scene of Zimmerman’s face, of the injuries to the back of his head, and believe they were caused by anything other than a physical attack—and the only credible source for such an attack, especially given the injuries on the “punching” surfaces of his hands, is Trayvon Martin.

Although some of the exact circumstances of the attack remain uncertain, the State has presented no evidence whatever that Zimmerman ever proceeded down the “dog path” in the direction that Martin would have taken had he been seeking the safety of home. Nor did the State introduce any evidence whatever that Zimmerman continued to follow Martin after being told by the dispatcher that doing so wasn’t necessary. The State introduced no evidence that Zimmerman initiated contact with Martin—indeed, the State’s “star witness” Rachel Jeantel, testified that it was Martin who initiated contact with Zimmerman.

Zimmerman claims that it was at that T intersection that Martin emerged from the bushes, confronted him verbally, then aggressively attacked him with a punch to the nose that Zimmerman says he never even saw coming. The blow felt as if it had been delivered by a brick, Zimmerman told officers that evening, sending him to the ground with a broken nose. Zimmerman then claims—and the testimony of the only eye-witness, resident John Good, affirms—that Martin next mounted Zimmerman in an MMA-style dominating position and began raining blows upon his face and head, and smashing his head into the concrete sidewalk in a “ground-and-pound” attack.

Again, O’Mara notes, the State has introduced not one scintilla of evidence to contradict any of those claims.

At that point, struck to the ground by a surprise blow out of the dark, bleeding and chocking on his own blood, being beaten from an opponent sitting astride him, Zimmerman would have had a reasonable fear of death or grave bodily harm and could lawfully have used deadly force to defend himself.

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George Zimmerman’s Kel-Tec PF-9

Zimmerman Used Deadly Force in Self-Defense Only In Extremis

But, O’Mara emphasized, he didn’t. Instead he screamed for help for 40 seconds, begging for someone to come to his assistance. Several people peered out their windows and heard noises but saw little. John Good, the only eye-witness, stepped outside onto his porch and observed the darker skinned man in the dark clothing on top of the lighter skinned man in the lighter clothing and demanded that he stop the apparent beating. The man on top in the darker clothes ignored him. John Good returned into his home to dial 911, as several other residents were also doing.

State witness John Good

State witness John Good

Even then, when any hope of immediate aid was lost, when the blows continued to rain down, when Martin pressed his hands over Zimmerman’s mouth and nose , cutting off his breath, when he feared the imminent loss of consciousness, even then Zimmerman did not yet resort to the use of deadly force in defense of his life.

That decision came only after Zimmerman’s licensed concealed gun, still secure in its holster, emerged from concealment because of the displacement of jacket during the attack, was observed by Trayvon Martin. “You’re going to die, mother fucker,” Martin told him, reaching for the gun.

Only then, with death seconds away, and no other alternative left to him, did Zimmerman draw his weapon and fire a single round into his attackers body above him.

Again, O’Mara notes, the State has introduced not one scintilla of evidence to contradict any of those claims.

As a result, Zimmerman’s claims of lawful self-defense remain uncontested by any evidence, direct or circumstantial by the state. Self-defense is an absolute defense against the charge both second degree murder or manslaughter.

Controlling Florida Case Law in Support of Judgment of Acquittal in Cases of Self-Defense

The State, then, had failed in its charge to exclude all reasonable hypothesis inconsistent with innocence—indeed, dramatically so—and under Walker, Barwick and other controlling Florida case law a judgment of acquittal was the only appropriate decision to be made. The additional controlling cases include State v. Law, 559 So.2d 187 (FL Supreme Court 1989), Stieh v. State, 67 So.3d 275 (FL Ct. App. 2011), Hernandez Ramoz v. State, 496 So.2d 837.

One of the particularly interesting of these cases involving a judgment of acquittal in the context of self-defense is Jenkins v. Florida, 942, So.2d 910 (FL Ct. App. 2006). In that case the defendant went outside of his home to confront a noise maker. The other fellow punched him, knocking Jenkins back, then came at him again. Jenkins grabbed his knife, which penetrated the attacker’s heart, killing him. Jenkins sought a judgment of acquittal, which was denied, and he was convicted. On appeal, however, the appellate court ruled that the denial of the JOA was inappropriate, and the verdict was vacated. The similarities to the present case are striking.

That essentially concluded the first half of O’Mara’s argument to the judge—in essence that a judgment of acquittal should be granted on ALL the charges against Zimmerman on the basis of lawful self-defense. He then continued, on the assumption that Judge Nelson would reject that argument, to argue that at the very least a judgment of acquittal should be granted on the charge of murder in the second degree.

O’Mara: If Acquittal On All Charges Denied, Must At Least Acquit on Murder 2

O’Mara’s basis for this second argument was that the State had patently failed to provide any direct evidence of spite, ill-will, or hatred required for second degree murder. Further, what meager circumstantial evidence the State had presented was not sufficient to exclude all reasonable hypthosis of innocence. As a result, the State’s charge of second degree murder could not pass the requirements of Walker, Barwick, et al., and must fall to a judgment of acquittal.

O’Mara noted that the common thread throughout all of these cases was that spite, ill-will, or hatred required for a depraved mind killing is almost never found between combatants who have only just met, but rather is limited to circumstances in which there has been an ongoing relationship in which these potentially dangerous sentiments can accumulate. Conversely, the courts have consistently held that it is almost impossible for that spite, ill-will, and hatred to grow so quickly in the middle of an affray or fight or altercation that a resultant killing can be said to have resulted from a “depraved mind.”

He then went on to discuss a series of Florida appellate cases in which a killing had occurred in circumstances comparable to those of the present case, but which found on appeal that the momentary confrontation between the combatants—no matter how egregious or negligent—did not amount to the depraved mind requirements of spite, ill-will, or hatred. These cases included Light v. State, 841 So.2d 623 (FL Ct. App. 2003), a 2nd DCA case involving a confrontation in a mosh-pit case. The eventual victim had somehow struck Light in the groin, and in response Light raised the victim over his head and smashed him into the cement floor. The victim died shortly thereafter. The appellate court found that this did not constitute an act of a depraved mind.

Similar cases involving considerable “bad act” conduct but no finding of a depraved mind included Williams v. State, 764 So.2d 177 (FL Ct. App. 1996) , State v. Ellison, 561 So.2d 576 (FL Supreme Court 1990) involving a murder that resulted from a high-speed chase in a crowded urban area, and Dorsey v. State, 74 So.3d 524 (FL Ct. App. 2011)[] , in which the defendant got in an argument, went home and armed himself, returned to the argument and ende dup shooting and killing the other two men—no spite, ill-will, or hatred, and no depraved mind—and Bellamy v. State977 So.2d 682 (FL Ct. App. 2008), an impromptu bar-fight type killing between strangers, and Wiley v. State, 60 So.3d 588 (FL Ct. App. 2011), in which the defendant used his pistol as a club, upon which it discharged and killed the victim—again, no spite, ill-will, or hatred, and no depraved mind killing.

O’Mara concluded his motion with the following remarks:

All of those standards that the State has to present, all those factual scenarios have to convince this Court, that a judgment of acquittal should not be granted because they have presented evidence which negates every hypothesis of self-defense, every hypothesis of innocence, they are synonymous for these purposes in that my client acted in self-defense.

Failing to do that, Walker is the law of this land, and suggests that a judgment of acquittal should be granted. If it is not granted outright because they have simply failed to disprove self-defense, of course you know that to be the standard for the jury to consider anyway, then we shouldn’t even need to present a defense.

And, if for some reason that you think that all of that is just, has to be ruled in favor of the State, not giving my interpretation to Walker and its progeny, any consideration whatsoever, then certainly the State has failed in convincing that second degree murder charge, evidencing a depraved mind, has any basis moving forward to this jury, because they simply have not presented any evidence to suggest that there is not a reasonable hypothesis that my client did not act with ill-will or hatred, and they need to present, though they get the benefit of all the evidence being presented in their factor, they don’t get the benefit of you ignoring the evidence that can’t be interpreted any other way.

You cannot look at that picture of my client’s nose and say that he wasn’t beaten in the face. You can’t look at the back of his head and say he wasn’t beaten in the back of the head. You cannot look at the autopsy of Mr. Martin and not realize that my client never intended to nor landed one blow on Mr. Martin, all my client did was scream out for help. Mr. Good, though he was questioned a lot about this area, did finally opine, though he didn’t see gasps escaping from my client’s mouth as he was the one scaring towards him, said it was his thought, his common sense, that it was in fact my client screaming out for help.

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The reality is had it been Mr. Martin screaming for help—well, he had his chance. He had Mr. Good 17 feet away, asking him to stop, telling Mr. Martin he was going to call 911, and Mr. Martin continued to ignore him and continued to batter my client in whatever form or fashion or the number of times he did, that ended up with the injuries my client had. They can’t ignore that evidence to a jury, and they really should not to be able to ignore it to you on a judgment of acquittal argument.

Judge Nelson then asked for the State’s response, which was delivered by Mr. Mantei—but that’s fodder for my next post on the subject, “The Bad,” hopefully up sometime tomorrow.

Don’t forget, of course, that we start all over again covering the trial live at 9:00AM tomorrow morning—keep your eyes open for our live coverage page, including two video streams and the rolling Tweeter feed of selected contributors—including myself, tweeting as @LawSelfDefense.

–Andrew, @LawSelfDefense

NOTE:  The title (and corresponding URL) were changed shortly after first publication of this post to better reflect the content.


Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense,” now available in its just released 2nd Edition, which shows you how to successfully fight the 20-to-life legal battle everyone faces after defending themselves. Take advantage of the 20% pre-order discount (valid only until the jury returns a verdict), only $40.  NRA/IDPA members can also use coupon code LOSD2-NRA at check out for another 10% discount and free shipping.

The Law of Self Defense, 2nd Edition” is now also being carried by Amazon.com, at list price but with a commitment for 2-day delivery.  A Kindle version to come within a week or so (I hope).

Many thanks to Professor Jacobson for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!

You can follow Andrew on Twitter on @LawSelfDefense (or @LawSelfDefense2 if I’m in Twitmo, follow both!)on Facebook, and at his blog, The Law of Self Defense.