Breaking: Charge on Murder 3/Child Abuse is denied by Judge Nelson
This morning the Court in Florida v. Zimmerman conducted a hearing to finalize the instructions that will guide the jury on arriving at a verdict. While some of the instructions were long-expected and raised little debate, others could only be described as a preposterous effort of the State prosecutors to ambush the defendant, George Zimmerman, with the effect of once again denying Zimmerman his Constitutional right to due process.
Judge Nelson, Florida v. Zimmerman
I’ve gathered all the relevant jury instructions over at my Law of Self Defense blog (www.lawofselfdefense.com), and here will provide a brief overview and a link back to the full-length instruction there.
FLJI 7.4 Murder–Second Degree
Florida Jury Instruction 7.4, Murder–second degree, is based on Florida statute 782.04, section (2) of which covers second degree murder.
Florida 782.04 murder statute
Second degree murder has been the primary criminal charge against Zimmerman since the initial affidavit of probable cause. It’s requirement that Zimmerman must have acted with the characteristics of a “depraved mind” –hatred, ill-will, or spite directed at Trayvon Martin–and the absence of evidence of that state of mind has always made it unlikely that the State could obtain a conviction on this charge.
Getting to Murder 2: Where was George Zimmerman’s “Depraved Mind”? Truth is, nowhere
Florida Jury Instruction 7.7 Florida manslaughter
Florida 782.07 manslaughter statute
In Florida manslaughter is a lesser-included charge of second degree murder, so it was always inevitable that the jury would be read this instruction as well. Here, it is quite possible that the State may be able to prove the elements of the crime beyond a reasonable doubt–essentially that Zimmerman deliberately used force against Martin, and that Martin died as a result.
The challenge for the State, then, comes in the second half of the analysis in any self-defense case, and that is where the defendant claims that, yes, he did commit the acts with which he was charged but he was legally justified in doing so because he was acting in lawful self-defense. Self-defense is an absolute defense against conviction of any intentional crime, if accepted by the jury as true.
Florida Jury Instruction 3.6(f): Justifiable Use of Deadly Force
There had also been the suggestion that the State would seek to have the jury instructed on aggravated assault and/or aggravated battery. These charges are almost never brought when the outcome of the crime happens to be a dead person–that’s what murder and manslaughter are for. The State’s desire to include these, then, simply reflects a cynical effort to offer the jury something on which they could return a “compromise” verdict of guilt. In the end the State elected to not pursue these instructions.
The real shocker, however, came when the State sought to have the jury instructed on third-degree murder, the first time in this lengthy trial that this particular charge has been mentioned. Third-degree murder involves a killing with an underlying felony, and is included in the murder jury instructions.
Florida Jury Instruction 7.4: Florida murder 2
In this case, the State is arguing that because Martin was 17-years-old he was a minor, and therefore Zimmerman’s act of shooting him was an act of child abuse. It appears initially that Nelson may be amenable to instructing the jury on this preposterous charge. Doing so would simply add to the mountain of improper decisions this Judge has made that will certainly result in any guilty verdict being overturned on appeal.
Florida Jury Instruction 16.3: Child Abuse
There has also been some wrangling on specific language each side has desired on such issues as “provocation” and “serious bodily harm,” and for the most part Judge Nelson has seemed to discard the desired variation on the standard jury instruction.
That’s all I have time for right now, be sure to follow us back at the live coverage:
Zimmerman Trial Day 13: Live Video, Analysis of State’s Closing Argument
–Andrew
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Comments
The defense is “standing its ground”.
They are not being cowed by the judge, which is something a WHOLE LOT of lawyers WILL do.
Good on ’em…
The defense did not even claim ‘stand your ground’. There was no hearing on SYG. So that cannot be the basis of the verdict.
If the felony murder instruction is submitted, we can definitively conclude that the rule of law no longer exists in Seminole County.
It would appear my comment was overtaken by events.
“rule of law no longer exists” Are you serious? With all the things that go on in a criminal cases, this is the deciding factor? You don’t think that all the defendants that do not receive the quality of counsel that Zimmerman got would think that rule of law has long stopped existing? It really does take a white guy going through the system to open up your eyes. There are truly innocent people sitting in prison. The best you can say about Zimmerman is that he was an idiot with a gun who followed someone, but didn’t have the ability to defend himself without shooting. That is putting the absolute best spin on his actions.
Well, I guess even the child abuse charge was just too far for this Judge to go! Small mercies…lets hope the Jury bases their verdict solely on the evidence presented in court these last couple weeks! If they do there can be no doubt GZ will be found not guilty.
Lets pray they are that intelligent (sorry, a corruption of a great quote from 300!:)
Regards
Mailman
Perhaps the reason she did not immediately exclude the farcical third degree murder charge was to not appear that she was being bullied into doing so by West.
If he had been less confrontational, she might also not have made that silly ruling that the cell phone and facebook evidence is inadmissible.
Nelson looked sad when she denied the State their M3 charge. That one was a bridge too far, even for her, which has to be a bridge located somewhere in the vicinity of Beijing for her to not be able to “go there.”
Child abuse? If the police had arrived in time to stop the fight, they would have likely charged TM with aggravated assault and sought to have tried him as an adult.
Does the statute require the charged person to know that the person being “abused” is a child?
Do we have the right to defend ourselves against children who are trying to murder us?
GZ didn’t get a lick in–at least there’s no evidence of it on TM’s body.
No, they don’t have to know the person is a minor.
Fiery K-Liz! I didn’t see this much on althouse! –Dante
That was not particularly fiery. You must have missed my “I am the Braveheart juror” rant.
Judge Nelson;
NO 3rd degree murder or child abuse!!!
Thank you for following common sense and the LAW!!!!
Judge Nelson has already racked up enough reversible error to fill a truck…. I suppose it finally hit her to stop digging.
I think the text message issue is clearly reversible, and I think the gun issue would be serious error if the defense ever got around to that proffer (I don’t know if they did).
But I’ll admit, I’ve sort of lost track of all the other serious errors Nelson has made. Does anyone have a running list going?
Maybe Mr. Branca can make a list when this is done–either to jury or verdict read. Verdict read would give him more time to review and draft it.
FORE: Festival Of Reversible Error
White Hispanics can get dressed up in golf clothes and protest a conviction by yelling, “FORE!”
How about a list of all the case law that doesn’t say what Mantai claims it says.
One may as well undertake to rewrite the tax code instead. It would be shorter and easier to generate.
The Judge said NO.
Good!
But they still want to put this man in jail, by hook or by crook – the truth or the evidence in his favor be damned.
Full length legal links above on statutes are all leading to “Bad Gateway” – anyone else having this problem?
Links working now Thanks!
So the Jury will be instructed on the Self Defense (Justifiable Use of Force) laws.
Is there any chance we’ll get the final version of the instructions that the jury will get, with all the changes made by the parties?
Well I’ll be damned! Bravo, for once..
The child abuse charge was absurd.
http://bitstrips.com/r/WTW69
Crusty B, I’m starting to look through your bitstrips. Very funny! Are all 525 about the GZ trial?
Never mind, I answered my own question. Got to Lone Ranger and Batman and Superman. bwa ha haaaaa
Nicely done – but the judge is too skinny. Think Jabba the Hut for the weight and Betty Friedan for the face.
Maybe, the judge heard from the gov?
If you spent $25-million of your own money, so you could advertise yourself as a “fiscally fit” gubernatorial choice in 2010. Which is what put this republican doofus in office … what makes you think he didn’t spell out to the judge “NO AMBUSH?” Why? Because it would make the case as famous as DRYFUS. And, you know how that ended up for the french.
As to “riots” … I doubt you could tell one flas mob from the other, down there in Flori(duh). But retired white people thinking twice before they’d retire to that place … may have given Rick Scott nightmares.
To say nothing of the Cuban community. They live in Miami, too. And, they’re aware of what happens when disadvantaged blacks case their neighborhoods.
Heck, both Rush Limbaugh and Matt Drudge live in Florida. Rick Scott’s life could’a turned into a nightmare just between the two of them flashing stories UP. And, of course, Rick Scott did get the “name recognition” he wanted. (I know Nixon was wrong when he said “It doesn’t matter what you say about me, as long as you spell my name right.”)
What if Rush goes public, and tears into this case? You don’t see things you could say that would create public outrage?
The judge is still incompetent. That she’s not going with Murder3? Someone may have told her that when she used “Horn” … she was citing law from Cliff Notes. From cases that supported the defense, by the way.
It’s funny that so many people who don’t live here like to slam on this state. The reason that this state is in the condition it is in is due to the influx of people from left leaning police state hell holes like New York.
We are being overrun with people from other places that are telling us how they do things up north, and trying to explain to us how we are nothing but tobacco chewing uneducated hicks.
Don’t like it? Go back where you came from.
Invading proggies are like immigrating Islamofascists: don’t come here and recreate the hellhole you crawled out of.
HEAR, HEAR!
I feel for you, dm. We have the same problem here in AZ, with all the lefty loons who move here from California.
We, in California, have no such excuse.
No, California used to be very conservative, until the hippie generation moved in. Bunches of people from back east (I include Minneapolis as “back east”).
I’m tired of it, too, and I’m tired of conservatives ragging on Rick Scott. First of all, you are counting on the MSM for their interpretation of what Rick Scott does and how unpopular he is, which is ridiculous on its face. Why would you believe what the AP or NYT or Palm Beach Post says about him? They don’t tell the truth about any other conservatives.
Second, he has done a lot of good conservative things in this state. Of course, the press he gets for that is negative or none at all.
From a column by Christopher Bedford, on a major conservative site:
“In Florida and across the country, progressives are going after guns; toting tax hikes; splurging in spending; abetting abortion; ratcheting up regulations; and resisting reforms to state pension systems and public education. On every one of those fronts, Gov. Scott has successfully opposed them.
“On guns, Mr. Scott signed legislation protecting gun owners from foolish prosecution, and signed — and defended — legislation protecting their privacy. And while others scurried for cover in the wake of the shooting-death of Trayvon Martin, Mr. Scott stood down national liberal pressure to reform self-defense laws, creating a committee that found little wrong with Florida’s Stand Your Ground legislation.
“On taxes, Mr. Scott has cut millions in property taxes, and worked to eliminate the business tax piece by piece.
“On spending, Mr. Scott has paid down the debt by billions, and took flack from all sides for vetoing over $600 million in spending when he signed the 2011 budget.
“On abortion, Mr. Scott signed laws cutting off state funding for abortions, tightening restrictions on underage women trying to bypass parental notifications, and requiring abortion clinics to offer ultrasounds.
“On regulation, Mr. Scott’s administration has eliminated some 2,300 burdensome rules.
“On state pension reform, Mr. Scott fought to require state employees to contribute to their pension plans, and won the fight when the Florida Supreme Court ruled that this modest reform was not a violation of workers’ rights.
“On public education reform, Mr. Scott signed laws that eliminated tenure for new teachers, and instituted merit pay based in part on student performance. The governor also signed an opportunity scholarship law making it easier for students to transfer from failing schools. And although the average teacher’s salary saw a 3 percent cut through pension contributions, in January Mr. Scott called on state legislators to raise teachers’ salaries by $2,500 a year.
“Mr. Scott has been a solidly conservative governor, championing a solidly conservative agenda. The suggestion that he should face a primary challenge from the right — an unlikely, but whispered, scenario — is pure folly, and a folly that could well lead to his defeat and the reversal of his many reforms.
“Bowing to Obamacare is a serious sin among small-government advocates. But anyone saying that Mr. Scott should have made his last stand on Medicaid Hill because it’s just that important should remember this: The Republicans in the legislature are able to sink the expansion, and Republican Speaker of the House Will Weatherford has made it clear that the House GOP will oppose the measure, though they are exploring other options for expanding health-care access among the poor.”
Back to me: I live in Florida, I try to stay informed, and I heard very little about many of these things because the media only talks about Rick Scott and his agenda if they can paint him as the second incarnation of Atila the Hun.
Republicans trashing other Republicans is a losing proposition. The media is going to do its best to install Charlie Crist as governor, a great friend of Obama. Will that be an improvement for you, Carol Herman???
I don’t read any of the Florida papers. As to Scott’s record, SO WHAT?
He has aided and abetted a political show trial of an innocent man. UNFORGIVABLE.
Your defense is like saying, “But besides that, Mrs. Lincoln, how did you enjoy the play?”
What did he do other than appoint a special prosecutor? He’s not a lawyer. Imagine the outcry if he had inserted himself in the argument. Everyone would have been screaming for his head.
You’re just confused because Obama has made it the president’s job; so it would apparently follow that it’s also the governor’s job. It’s not.
There was considerable political pressure brought to bear in this case:
– The justice department was brought in to investigate whether GZ violated TM’s Constitutional rights
– The President made reelection hay out of it
– The Mayor and City Manager got involved and tainted evidence/testimony
– Special prosecutor bypassed the grand jury
This case had political fingerprints on it from the beginning. Let’s face it, the politicians were lining up to violate GZ’s constitutional rights from the beginning. Shameful.
Carol: “Dreyfus”.
It appears the judge is not professionally suicidal. That crap would end her career if she allowed it.
If the judge had allowed the charge of Murder 3/Child Abuse, the defense should have then moved for a directed verdict of “not guilty” based on the fact that the state failed to produce evidence of defensive wounds on Trayvon (unless they contend that Zimmerman beat his head into Trayvon’s fists).
The outdated race baiting which has surrounded this case serves only to prove that all these politicians and media pundits are living in gated zip codes out of touch with how multicultural/multinational this nation has Actually become.
Here is the florida statute on murder:
http://www.flsenate.gov/Laws/Statutes/2012/782.04
The unlawful killing of a human being…when committed by a person engaged in the perpetration of…aggravated child abuse…is murder in the first degree…
The unlawful killing of a human being…by a person engaged in the perpetration of…any felony OTHER THAN…aggravated child abuse…is murder in the third degree…
How can you bring M3 when the statute specifically excludes it (and includes it in M1)? What am I missing?
That was always one of the problems with 3rd degree murder – you can’t use the killing that is the basis for the murder as the felony, and the prosecution never really presented any evidence of any potential felony by GZ except for the killing of TM. They tried to suggest that GZ theoretically touched TM first, maybe. But would that have been a felony? Unlikely. And, what was the alleged child abuse? The killing of TM? Prosecution really didn’t provide any evidence of anything else that could be felony child abuse.
It has to work this way, otherwise a lot of manslaughter cases would end up as Murder 3, since manslaughter is a felony. Ditto for child that is. Limited to the killing of the “child”.
Agreed. Up here in Washington State, prosecutors got in a lot of trouble a few years back for the same thing: making the underlying killing the “felony” part of felony murder. IIRC, we had several hundred murder convictions thrown out because of this. And this is first year law school stuff. Amazing that they got away with it for so long.
But this is different. Lets agree FTSOA that GZ committed child abuse. Fine, then he MUST be charged with M1. If the underlying felony is any of the specified acts (CA included), then M1 must be the charge, not M3.
If we didn’t know it already, the state is fighting dirty as evidenced by this morning’s arguments over instructions and the surprise felony murder gambit. Expect the worse during closing.
BDLR talking about TM circling GZ’s vehicle kinda undermines the sweet innocent kid narrative.
I think BDLR needs to look in the mirror to find the “asshole”.
Where did all our trolls go…???
Herpes-r-us made a quick run to Rite-Aid to get his anti-viral med prescription refilled.
They walked down to the corner store to buy watermelon tea and Skittles.
GZ, with his face and scalp, obviously pummeled TM’s left knuckles.
Don’t you just love the way BDLR perpetuates the FALSE meme that George said “Just tell my wife I killed someone?” TV talking heads are now echoing it. What absolute B.S.!
Yeah, the press wants racial solidarity. It’s quite clear from the way they have pushed lies, and distorted the situation.
Now BDLR is saying Zimmerman started the fight by following Trayvon. It’s not illegal. But if you read blogs, pro Trayvon people think following is highly provocative. Probably because one would only follow with intent to harm, not to say, prevent harm.
If I’m right about this, BDLR’s statement will serve only the purpose to incite racial tensions, and it’s disgusting.
BDLR now wants you to believe after having a broken nose, Zimmerman concocted a self-defense scenario consistent with the available witnesses. Is anyone that smart?
Skittles he didn’t even steal, from 7-eleven. Now who is profiling?
We won’t have to wait for the verdict for the riots to start; that’s already happening. It started in late April in Mobile, AL when a (white) man was attacked on his own porch by a (black) mob of at least twenty, using brass knuckles, paint cans, pipes, and whatever else was close to hand. When the victim was laying in his yard unconscious and the mob was moving away, one of them turned back and shouted, “That’s justice for Trayvon!” There have been at least four more incidents where Trayvon’s name was used as justification for black-on-white violence.
I hope Obama, Sharpton, and Jackson are happy with the situation they created with their race baiting. Say, where is Al Sharpton now? I expected him to be back in town causing more discord by now. (Maybe he’s visiting with Tawna Brawley.)
Apes.
Thank good on the no Child Abuse. Think about it, if GZ got put away for that, none of us would be safe from any 16 or 17 year old with killer fighting skills, or worse still a machete.
About the 6 woman Jury? One has to wonder, if they or any of their friends have ever been the victim of black on white violence. Although the media does its best to cover it up, or simply ignore it, it is still out there, with government stats to prove its high frequency. I assume all they need is one saying not guilty on both charges, for GZ to walk. Which also begs the question. If GZ found not guilty on 2nd degree, but with one or more ladies saying not guilty to manslaughter and the rest guilty. Given that GZ was not initially charged with manslaughter, may he be retried for just manslaughter, given a hung Jury ? Or is he a free man ?
No — its called double jeopardy. Not allowed — or not supposed to be. The Feds have duplicated so many crimes that were already state crimes — such as murder — that double jeopardy actually does exist — but it is WRONG!!!!!!
[…] For background on the argument leading up to the instructions, see Zimmerman Trial: The Jury Instructions. […]