As expected, the Judge in the George Zimmerman case ruled that in addition to Second Degree Murder, she will instruct the jury on the lesser included offense of Manslaughter, as required by Florida case law.
In a surprise move this morning, the prosecution asked the Judge to drop the Aggravated Assault charge and to instruct the jury on Third Degree Murder, which is murder in the course of committing a felony.
The felony the State wanted as the predicate was Aggravated Child Abuse (Jury Instruction) because Trayvon Martin was 17 at the time of the shooting.
According to Don West, the defense was not notified until 7:30 a.m. this morning.
This surprise is important because the defense did not have time to research the law, while the State presented numerous cases. Generally it is not a defense to child abuse that the perpetrator did not know the age of the victim. This is an unusual circumstance, however, where Zimmerman was punched in the nose and the “child” was on top punching him — to say that excessive use of force in defense of an attack by a “child” is child abuse certainly requires some time to research and argue. I don’t know the answer to that legal question, but the court should give the defense time to research and argue it. (Update 11:35 a.m. — Judge just indicated she will give defense time to research, but didn’t indicate how long until 1 p.m.)
Don West: Just when I thought case couldn't get more bizarre, the state's now arguing it's 3rd degree felony murder based on child abuse.
— Natalie Tolomeo (@NatalieTolomeo) July 11, 2013
#zimmermantrial West: "We wondered why State included TM's age, 17-years-old, completely irrelevant to crime with which GZ charged."
— Law of Self Defense (@LawSelfDefense) July 11, 2013
#zimmermantrial West:"Has State been gathering this case law for over a year, so could spring it onus, this Court, this jury, last moment?"
— Law of Self Defense (@LawSelfDefense) July 11, 2013
West: Not fair to me, #GeorgeZimmerman, O'Mara or court "for this to happen like this right now." #ZimmermanTrial #TrayvonMartin
— Jeff Weiner (@JeffWeinerOS) July 11, 2013
#zimmermantrial West:"I'm not prepared to counter, Mantei has fully formed argument based on case law didn't just come up since yesterday."
— Law of Self Defense (@LawSelfDefense) July 11, 2013
Reason for fight about murder3: If #Zimmerman is so convicted, he'll face a life sentence under 10-20-life. #Trayvon, #Zimmerman.
— Rene Stutzman (@renestutzman) July 11, 2013
We will update this post when the court rules.
UPDATE: Judge will NOT give jury instruction on 3d Degree Murder / Child Abuse.
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Comments
When did Florida start running kangaroo courts?
when Eric Holder and Race Baiter International hit the Sanford streets last year .
fwiw: Nelson is under believable.That is a Florida Criminal justice ? I live in Fl , whole life . No idea courts were or are that bad. Very hurt by this witch hurt !
sorry. UN-believable is what i meant. mind is racing from blood pressure .
How Mr.Davis is holding up so well for George is beyond me . Lord have Mercy
Although I have not commented before now, I have been following this case closely for the last couple of weeks. (As an aside, I wouldn’t have been a terrible juror. I was *aware* of the case, but hadn’t really followed it in the news prior to the start of the trial.) I have been frustrated by the tactics of the prosecution, but have tried to avoid assuming bad intent or bad faith on the part of the prosecution. Instead, I have tried to assume the best about the people involved – even though I would disagree strongly with the perspectives of the prosecution team and Judge Nelson, I have given them the benefit of the doubt and assumed error rather than ill intent.
This, though, seems to me to be beyond the pale. I can no longer assume error instead of ill intent. This is not a prosecution; it is a persecution. For a “public servant” to abuse the power of the prosecutor’s office for what appear to be political considerations does damage not just to George Zimmerman (which is obvious), but to the integrity of and trust in the justice system as a whole. For Nelson to abet the attack on the justice system does further damage.
Fortunately, I still have hope that *in spite* of the prosecution and the judge acting in bad faith for a political persecution, the jury system can still work and I believe this jury will come back with a “Not Guilty” verdict. If not, I can only hope that any conviction will be quickly overturned as the travesty it is – and I would fervently hope that the prosecution and the judge would be reprimanded strongly. (Is some kind of sanction possible?)
/rant off
“This is not a prosecution; it is a persecution.”
Well said.
The prostitution has been into persecution from the start.
“This is not a prosecution; it is a persecution. ”
Spot. On.
Ever since ICE changed the rules about immigration from Australia. It’s been terrible.
It turns out that Judge Nelson’s real name is Bob Keeshan.
Bob Keeshan was my childhood favorite and an honorable man. This sack of excrement on the bench…. not so much.
What do you mean ? Bob Keeshan was a fine American Patriot imo . Nelson , a sellout
Gotta disagree with you. I know you wanted to make a quip about a Kangaroo court, but besmirching the memory of Bob Keeshan is not the way to go about it.
Don’t take the down-twinkle personally, I agree with many of your comments, but just not this one in particular.
Pay attention folks sadly this is US History in the making, right in there with the Salem Witch Trials except it’s not the 1690s but 2013 right before your very eyes. Complete with the Gov’t Dept Of Justice stirring up the “racial” pot, actually orchestrating protests, speaking at meetings and facilitating legal procedures that were utilized to jump start the case. Check out the interview between Bernie and Dee Dee which was the key spark that was utilized to spark this case. Read it and pay attention to what the trial showed.
http://www.talkleft.com/zimm/deedeestatetranscript.pdf
Don’t ever forget the whole Zimmerman case was claimed by the protestors to be racially motivated. If anything this trial has clearly shown that Zimmerman was in no way racially motivated, ironically which started the whole thing.
Since the prosecution started offshoring to Australia.
I’m not familiar enough with Florida statutes to say for certain, but it seems to this retired Texas lawyer that instructing the jury on a charge of injury to a child at this stage of the proceeding is error. I say that because there is an additional element in that offense not present in the charged offense, namely, that the deceased was a child. I have a problem with that anyway, because, (1)in Texas, 17 years of age means you’re an adult for criminal law purposes in general; (2) basic fairness says you can’t spring a new accusation on a defendant at this stage of the trial, after both sides have rested and closed. But, what do I know?
ZOOLANDER.. Outrageous. a 6′ baby boy was murdered by a depraved White Hispanic with only scratches to defend his child abusing.. Words escape me…
Actually Zim is Afro-peruvian American
Afro Peruvian German Jewish Ashkenazi American.
Wrong Sally MJ. Zimmerman is not Jewish. He is Roman Catholic.
You can always tell the folks that are aching for racial conflict by the insistence on using the made-up, ridiculous “White Hispanic”. If additional charges are made, and defense doesn’t have an opportunity to research something the prosecutors obviously had up their sleeves. Automatic reversal on appeal, if convicted, IMO. The state doesn’t spring surprises like this in order to convict. Not in a free society.
Isn’t the best way for a Judge to get reversed is to give some wacky jury instruction like this? The State on the other hand seems desperate.
Yes, but while she is being reversed Zimmerman will rot in jail if convicted. Frankly, I think the Jury at this point has to understand that this is pretty much a set up.
He will rot in jail if he’s lucky. I doubt he would survive.
An obvious gambit. Makes the judge look reasonable when she rejects it, giving her cover to agree to the manslaughter.
She already agreed to charge Manslaughter before this came up.
And any comment on that, or on her bizarre badgering of Zimmerman to testify, gets buried when she rejects this. Never hurts to do the judge a favor. Of course, she may reject the favor and add the instruction . . . She does seem to be out of control.
I suspect she will say no to this, if only to say she threw a few bones to the Defense.
Manslaughter is a required lesser offense under Florida law. It could possibly be an error for the judge not to include it, although IANAL, so I can’t say for sure.
A good opportunity to link to Glen “Instapundit” Renold’s recently published short article Ham Sandwich Nation: Due Process When Everything Is a Crime:
Hence the reason they fear White Hispanic riots. Doesn’t JLo have a house in Florida?
SO we woiuld have to worry about slap fights in Florida?
Prosecutors were not smart enough to come up with this. I bet a dollar it came straight from the Holder DOJ.
Just a dollar?
Totally bizarre punch in the gut.
Praying for Z and his team.
Trial by Ambush. I can’t believe FL allows instructions on lesser-included offenses regardless what is charged. How common is that? How is child abuse a lesser included. Did the information expressly allege TM was a minor? Amazing.
And the show trial farce continues. Evidence, facts, law: who needs those when you’ve got a verdict to reach?
The state is throwing everything in the book at GZ knowing damn well they failed to prove their case beyond a reasonable doubt. They are doing everything in their power to put GZ behind bars to quell any potential backlash by a certain group. This is outrageous and a violation of GZ’s rights as an American.
Since when is it a crime to protect yourself by any means up to and including the death of the attacker when you are being attacked and you are in fear for your life.
Are we supposed to lay there and let a person under the age of 18 kill us so we don’t face a child abuse charge?
Did GZ ever have the chance to ask TM’s age before he was struck in the nose?
This is beyond outrageous!
Wow, total B.S. so from what I understand, 3rd degree felony murder is murder committed while engaged in criminal behavio or while in the process of committing a crime, e.g. you kill someone during a home invasion robbery. So how do you show GZ murdered TM while he was murdering TM? I know they are saying the crime was child abuse, but the only possible abuse they’ve shown is that he ‘abused him’ bykilling himee. So without any additional evidence to show child abuse? Shouldn’t that fall under the rules of a directed aquittal? There isn’t even circumstantial evidence showing child abuse? I think they threw this in to draw more attention to TMs age and associate GZ with child abusers. It was meant to be a cheap shot but Nelson is is stupid enough to hear it.
On the other hand, this very issue has been raised on other sites and discussed — so it’s not new, and I would have thought the defense had learned by now to cover every single thing possible that the State could throw at them. Perhaps they don’t have the devious mind that the prosecutor has?
Where was child abuse as a lesser included offense discussed? Which site(s)?
The Conservative Treehouse, for example.
I understand the sentiment – but by that logic they should also be prepared to defend against a claim of murder during the act of armed robbery by a prosecution claiming at the last moment that GZ was trying to steal TM’s Skittles…
(On second thought, I hope that the prosecution team doesn’t read this comment. That’s beginning to sound like just the sort of thing they might do if they thought of it.)
Was about to say: Given these clowns, not out of the question.
Why should they have to defend a charge, when no evidence was given to support that charge? Should we also give jury instructions on drug smuggling b, afterall GZ could have had 20 kilos of heroin in his car at the time. I think at a minimum discussion of child abuse or any other random crimes should be barred from closing statements and jury instructions ..
Many bloggers and posters have come up with the over-the-top “state’s case” — how poor little schoolboy Trayvon Martin, fresh from helping an old lady cross the street, was gunned down by big bad GZ. Other posters said things like “sounds like child abuse to me!” and such . . .
Just saying, the State is devious, and defense did not anticipate even the more likely devious things they would say or do or claim.
Granted, Mantei is just slinging cases around and pretending to be so learned about them, when in fact he has been shut down time and time again.
But evil does not rest, and never gives quarter. Ever. This is not just about a bad case that should never have been brougt. It’s about the manifestation of institutionalized evil in the form of Nelson, Corey, Crump, TrayDad, TrayMom, NatJack, BDLR, the major, etc.
The State has been slow-rolling its case so egregiously that the defense has been playing catch up to every new wrinkle. Prosecutorial misconduct, for sure.
I almost didn’t watch this morning because I figured it would be uneventful and boring.
I almost wish I didn’t watch. It is painful to see an honorable jurist like West be beset by so much crap. He looks physically ill — this case has taken its toll on him.
The State’s desperation is palpable and it is showing. The media, the race baiters, the prosecutors/politicians have invested so much rhetoric and venom in promoting the “Zimmerman is a racist who murdered the angelic black martyr, St. Trayvon, and must be punished accordingly!” narrative, that anything less than a conviction is a disaster for them. This is what happens when a charges are brought without a scintilla of probable cause to support an indictment, and without any substantive evidence whatsoever that the defendant engaged in criminality. This is the “throw everything against the wall and see what sticks” approach to prosecution, and it is sickening to observe.
This is why they MUST be defeated, here and now. As this trial has gone on I’ve come to realize its importance as a cultural and political event for America. I don’t usually believe in such things. The fate of a country can’t be tied to single events in small towns, can it? But a conviction in this trial will be a despairing loss for justice and America and empower the agents of the State in their ideological ruthlessness and dishonesty like nothing before.
I understand what you’re stating; however, I take a slightly different viewpoint, insomuch as I perceive the Zimmerman show trial to be the inevitable end result of empowering politicians and lawyers at DOJ who are in the Obama/Holder mold, to wit, people who view the concept of “justice” not as a race-neutral ideal to be applied equally without regard to race, but, rather, as a cudgel with which to promote a transparent race-based agenda and which treats citizens disparately on the basis of their racial status.
This is how this new brand of “justice” works in Obama and Holder’s America — a citizen’s skin pigmentation is taken into account in deciding whether to enforce laws or charge individuals with crimes. Two Black Panthers intimidate white voters outside a voting facility — the charges are dropped, because the race of the victims and the culprits didn’t align with that deemed to be “appropriate” by liberal lawyers of the DOJ Voting Rights Division. An Hispanic man uses justifiable lethal self-defense to defend himself from the unprovoked attack of a young black man (with no evidence proving that the Hispanic man’s account of events is anything but truthful); he is laughably charged with second-degree murder, in order to satisfy the bloodlust of the black mob and to achieve a politically correct result that avoids hurting the feelings of aggrieved blacks who evince a perpetual sense of victimhood and powerlessness.
Just to be clear; I do share the sentiments you expressed in your comment — there is no question that a guilty verdict in the Zimmerman case will empower and embolden the race baiters and their allies, who seek to impose political pressures and politically correct and nebulous notions of “social justice” onto the judicial and criminal justice systems.
Well, if there was ANY doubt about this prosecution being a “get Zimmerman” campaign, this “gotcha” move has to remove it.
I believe the requirement to clearly charge, providing notice and a reasonable defense, goes back to the Constitution.
This is a violation of all norms of criminal law, IMNHO.
I’m not a lawyer but I know BULLSHIT when it happens. Just hope the jury is as furious as I am calling this child abuse.
I agree. If I were on the jury, I’d be furious at the prosecution at this point. I can’t see how the prosecution can view adding this as a winning move.
Time to start printing up the “Free George Zimmerman” t-shirts it sounds like. What utter and complete BS. Is there any future at all in being a law abiding citizen?
Others have suggested that the prosecution is being pushed by the Obama administration/Holder. I don’t know if that is true or not. But if that is true, then perhaps this case is only a part of their attempt to pursue gun control by any means as they said they would do. Perhaps they are trying to show law abiding citizens that they can never use their firearms in self defense without being persecuted for it.
Getting beaten up by a 6’+ 17-year old is “child abuse”? Kafka, anyone?
So I am confused, is or isn’t the Judge going to instruct on Self Defense?
First comment here. Great coverage, BTW.
I’m stunned by these shenanigans. I cannot imagine a trial judge allowing such a thing. What was the underlying “abuse?” There is absolutely no evidence to support that, beyond the age of the defendant. For similar reasons, I have problems withe the Assault as lesser included, where there is no dispute that GZ fired a shot which killed TM. How a jury could acquit of the homocide charges, i.e. Murder 2 or Manslaughter, but convict on assault is beyond me.
In reading the Florida statute linked at Andrew’s site, regarding the child abuse charge, it seems that once again we’re back to self-defense: once the defense has met the burden of raising an affirmative plea of self defense it’s up to the state to disprove it beyond a reasonable doubt.
If you as a juror come to find that the state has failed to do so with regard to 2nd degree murder and manslaughter, why would you suddenly believe that the state has convinced you beyond a reasonable doubt that GZ wasn’t entitled to self-defense and thus “abused” TM?
I honestly don’t see how, in a reasonable court, one can put up 3rd degree murder and felony child abuse as a separate charge when the underlying defense is exactly the same as for the other charges: GZ had to defend himself in a life-threatening situation. The logic is the same.
What this says to me is that the state knows it can’t get 2nd degree murder and perhaps can’t get manslaughter, and so now is trying to give the jury an out if it wants. But the underlying logic lets you (indeed compels you) either to accept 2nd degree murder or to reject all charges. The jury should resist the temptation to find an out.
The problem is there is no out, I think they are adding so many charges so that jury will pay less attention to self defense.
See, that’s your problem right there.
Assuming facts not in evidence.
“See, that’s your problem right there.
Assuming facts not in evidence.”
I’d give you a BIG LOL, but this is no laughing matter.
Hopefully they don’t find no guilty on Murder 2 due to self defense, and then find guilty on Manslaughter.
finally gave yourself away troll.
Franz Kafka is alive and working as a court reporter in Florida.
Unbelievable, and unacceptable to charge this late in the trial.
They forgot to add jaywalking when he got out of the truck to follow TM.
Unbelievable..
If State wants to charge ZM with child abuse, are they also pressing charges against the father for the same (as kid was unsupervised and out on the neighborhood while daddy was away on a date?)
I agree.
or both mother and father because they have been making money off him being dead. To me that is the ultimate in child abuse.
It wasn’t until now, ruling that you can call a legal act illegal and allowing a last minute “child abuse” charge, that I thought Nelson was a biased, unqualified judge. Judgment of acquittal time. This is far, far from over.
Child abuse?
Well, there seem to be very few grown-ups in positions of authority in the state of Florida, so maybe they’re on to something.
If Trayvon had killed GZ with his fists and his threats overheard, he could have been tried AS AN ADULT.
Ashleigh Banfield and the other bloviating gasbags on CNN apparently think this trial is about them.
Yes! She acts like an excited cheerleader for the prosecution. Her enthusiasm reads a great deal like she thinks this is a lavish entertainment put on for her enjoyment; it’s all fun and games. She seems totally unaware that the life of the defendant is at great risk here.
Will the jury be allowed to consider self defense which seems to be lost in this tragedy of a trial?
I think prosecution will claim following and confrontation indicated animus and predatory intent on a minor. It’s therefore not only important to emphasize following is not a crime, but that this took place in an HOA common area, and not on city streets, and that as a owner in the complex, Zimmerman has certain rights to protect his joint property and to hail and identify residents from guests and trespassers.
I would greatly appreciate it if one of the commenters who actually knows the law in this area could go into this in more detail. I’m not saying greeting everybody you don’t recognize and asking them about their business is wise, it’s just that I think an owner in a complex has far more rights to do this than you would of someone on a city street (almost none).
From my past experience, folks in rental complexes mind their own business until a neighbor affects them, but HOA complex owners are very nosy neighbors.
That’s a great point, regarding the HOA common area. Zimmerman’s actions have to be viewed in proper context. He was not following Martin on a public street (and, even if he had been, it must be stated, such conduct would not have been illegal). FACT: the housing complex had experienced a rash of burglaries and break-ins in the months leading up to the incident. FACT: Some of the culprits involved in the aforementioned burglaries (as testified to at trial) were young black men. FACT: Zimmerman himself had had property stolen from his front porch in broad daylight. FACT: The outbreak of crime had substantially diminished property values in the complex.
All of the testimony at trial consistently painted Zimmerman as nothing other than a good and conscientious neighbor and homeowner who was concerned with the safety of his neighborhood.
MSNBC not exactly known for their conservative commentators.
Mr. West addressed the issue perfectly in his argument, but he took a bit long to get to it and did not drive it home. He referenced the Gibbs decision, which clearly outlines what adequate provocation is. The Supreme Court of Florida has made it clear that a person must use actual force or the threat of force in order to be an initial aggressor. Putting it simply, following a person does not meet this standard. Hell, yelling a racial slur at a person does not meet this standard.
The standard requiring threat of physical injury is analogous to common law assault, which is putting a person in imminent fear of bodily injury. EVERY jurisdiction makes it clear that mere words will not suffice. Also, a lawful action clearly will not suffice. A person cannot say that they reasonably feared a physical attack solely because they were being followed. Adequate provocation pretty much requires an attempt to physically strike or an action that makes it seem like you’re about to strike.
I am not a lawyer, but I’m hoping one of you can show me the twisted logic that explains this charge.
How do you charge 3rd deg Felony murder, predicated on child abuse, and then define the child abuse in question as the murder of said child.
Circular argument? Someone please help me see how stupid I am by not seeing the above as legal?
Correct me if I’m wrong, but the state appears to be claiming that, err, felonious child abuse underlying the shooting of Trayvon Martin to be the shooting of Trayvon Martin. So the act of shooting Martin is child abuse because Martin was 17 and therefore the charge of murder 3 is being applied for the shooting.
I’m no lawyer, but I know bullshit when I see it.
remove great bodily harm from instructions.. lol
If this goes, the jurors need to be told the penalties of all the charges.
Are they charging child abuse because Zimmerman used his face to scratch up Trayvon’s fists?
A hometown couple lost their son due to his choice to engage in an evening’s entertainment playing mailbox baseball.
The parents had the humility and common sense not to sue or seek prosecution of the owners of the mailbox or to accuse all mailbox owners of prejudice against adolescents, malevolently placing dangerous temptations in the way of adolescents and felony abuse of adolescents.
In this case, Crump and the Martins (aided and abetted by Holder, Obama and Sharpton) decided to do just that.
Fie on them.
That, and because Zimmerman could not possibly have a reasonable fear of death or great bodily harm, because he only received light punches so far, and should have anticipated only additional light punches.
troll you are extremely obvious and you have not looked at the real facts.
Whoa….and “18-1” for the thread win! 🙂 [Really]
as kid was unsupervised and out on the neighborhood while daddy was away on a date
***
and don’t forget Trayvon was a druggie with drugs in his system when he assaulted Zim…
He shoulda been an alky that is more socially acceptable.
Trayvon deserves the death penalty (no typo).
What the hell does his violating the prohibition laws have to do with it?
Of course, they can only use the testimony at trial to prove child abuse.
The problem, there was no testimony that it constituted child abuse.
If you don’t admit, you must aquit.
If they don’t prove sh*t, you must acquit.
The prosecutors and the judge should be ashame. They’ve perverted the justice system to further their political agendas. How do these slugs sleep at night?
The most frightening thing is that any one of us could be in Zimmerman’s place. Defend yourself or a loved-one and, if the attacker has a darker skin than you, your life is destroyed.
Whitey needs to learn to take his beatings lying down, so to speak. It is now against the law to defend yourself against a black assailant. Let the GZ case be a lesson in that to us all.
Any white, Asian or Hispanic person needs to learn this quickly. The sons of obastard and Eric “My people” Holder are a protected species.
who was the individual that said: “dirty Asians”?
Oh yeah, Marion Barry, not to be confused with our half-Black Barry Neo-Marxist..
Court: Oh, and we’ll be generous, and give you 60 minutes to come up with arguments on this surprise of a child abuse charge. Research that over lunch, and be ready at 1300.
…. Wow
My husband just walked in and told me that the State has argued that they want a jury instruction that George originally getting out of his truck and “following” Trademark was provocation.
According to my husband, the judge granted that and will include it.
Did anyone see or hear this part this morning? Can anyone elaborate?
NEVER FEAR, Professor Jacobson and Lawyer Branca will dice, slice, and analyze the jury instructions and supply a complete forensic analysis for us!
The defense had wanted a jury instruction stating that it was not a crime to follow someone. The concern is that the prosecution will make this argument to the jury in closing and the defense wanted the matter of law to be clearly given to the jury by the court. JDN denied the request.
The poor judge has no choice. There is supposed to be a conviction at the end of this show trial. She was counting on the prosecution to offer evidence to prove that GZ committed a crime. They utterly failed her even though she tried to help them along. Now she has to do whatever it takes to ensure a conviction.
It doesn’t matter if it is reversed on appeal. That will take a couple of years and she will be able to blame it on those reactionary judges on the court of appeals. She just needs to make sure that the media and the race exploitation industry do not blame her for failing to get a conviction.
Rumor: The judge will be checking up on the jury’s deliberation to make sure they come to the “right” verdict.
[…] it’s official; Judge Debra Nelson must keep her Rules of Criminal Procedure hidden in her pouch. The woman runs America’s foremost kangaroo […]
an unsupervised child with thc in blood with a known propensity towards violence, theft, drug use was walking alone in a gated community.
whos the child abuser ???
out in the rain on a winter night.
His father did not file a missing person report until the next day or later, and told the cops that the last time he saw his son was an hour after TM had died.
Plus, a short trot through the Brandi Greene home might send a drug dog into brain seizure.
So what? Prohibition is dying a slow death. They always do after about 50 years – historically.
And yet “conservatives” are wedded to it. I once thought they were smarter than that. I may have to revise my opinion.
Let me add that the ending of alcohol prohibition in 1932 gave FDR a big boost. “Conservatives” were on the wrong side then as well. Evidently they either do not study history or are incapable of learning from it.
IMO, the aggravated child abuse and homocide are merged, barring use of the child abuse as the predicate felony, given that the intentional act of shooting is apparently the basis for both the homocide charge and the child abuse charge.
That’s
Brooks v. State 918 So. 2d 181, 199 (Fla. 2005)
“It makes no difference that Brooks was not charged or convicted of aggravated child abuse because that crime, under these facts, merges with the homicide itself. In the instant matter, the action underlying the aggravated child abuse factor constituted the fatal stab wound that killed Alexis Stuart. Because there is no separate offense of aggravated child abuse, that crime cannot logically serve as the underlying felony in a felony murder charge.”
While I agree with that interpretation of the law, it’s no longer good law in Florida. It was overturned essentially by State v. Sturdivant, 94 So.3d 434 (Fla. 2012).
[…] New post: Breaking – State moves to charge Zimmerman with 3d Degree Murder based on Aggravated Child Abuse […]
I remember writing something about this back when GZ was charged that the only charge they could have was 3rd degree if they found some “child abuse”.
Oh my… I’ll go find it. NSA must have been reading my internet posts and giving them to DOJ to pass to these puppets
827.03 – Abuse, aggravated abuse, and neglect of a child; penalties (1) “Child abuse” means:
(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.
A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) “Aggravated child abuse” occurs when a person:
(a) Commits aggravated battery on a child;
(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or
(c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.
… the prosecutor must be going to 2b since MMA is often in cages.
The judge is not going to instruct the jury on child abuse. No chance. No possibility. Take my prediction to the bank.
Even if the judge committed error by instructing on child abuse, it doesn’t matter. What matters. What this case comes down to. Is self-defense, plain and simple. Either GZ acted in self-defense and, therefore, the jury must return a verdict of not guilty on all charges. Or he didn’t act in self-defense, in which case he will be found guilty of some crime that requires at least a decades-long sentence.
On the self-defense issue, did anyone hear whether or not the judge is going to instruct the jury that TM must have been committing a defined felony on GZ in order for self-defense to apply? Or did the judge rule that GZ simply had to have a reasonable belief that deadly force was necessary to prevent imminent death or great bodily harm? This ruling is CRITICAL!
This judge does not seem to rule according to reasonable expectations.
I think if we take this to the bank, we will find that the judge has ruled our account at a zero balance.
Reasonable belief only.
This is outrageous. Surely a defendant has to be informed of what he is being charged with before the trial begins.
Yes. There would be a serious federal constitutional right to due process (notice and an opportunity to be heard) and fair trial error if the judge allowed the prosecution to spring their absurd “child abuse” theory on the defense at the last moment. The judge will realize this during the recess, and will not instruct on “child abuse.”
At what age can the State charge a minor as an adult?
Any age, at least in Florida. This same State Attorney, Angela Corey, insisted on charging an abused and neglected 12-year-old kid, who ended up killing his half-brother, as an adult: http://www.foxnews.com/us/2011/10/19/boy-12-charged-with-murder-as-adult-in-florida/
Florida is notorious for charging children as adults, and sends more juveniles into the adult prison population than any other state.
NOTE WELL: That child was Hispanic. Corey hates Hispanics based upon how she charges them and tries to put innocent people away for life.
In the Fernandez case, I do think that there was a case for negligent homicide because he pushed his brother into the bookcase. Again, intent is important, and she charged a child of 12 as an adult… disgusting.
In murder cases, it is my understanding that minors at least as low as 12 years old have been charged as adults.
Amy said what I was about to say except for one thing. Angela Corey got a lot of heat for Fernandez from the left wing.
It is that case that is the main reason for this trial, so she can clean up her record a bit.
It wasn’t just the left wing who was unhappy about that one, Mouse. I know several libertarian-ish conservatives who were appalled. I myself signed a petition to get her to drop it, and I was a registered Republican at the time.
How can she clean up her reputation when in both cases the defendants are Hispanic?
Sybrina Fulton’s brother is a big ‘community relations organizer’ (a branch of the DOJ) in Miami. He was the one who got the race industry ball rolling.
It was the CR branch of the DoJ that has sponsored and organized the Trayvon rallies, etc.
Sybrina also got funds from the State of FL victims fund.
A question for the lawyers: The premise of the 3rd degree murder charge is that it results from the commission of a felony during which someone died. In this case the state is alleging that felony was aggravated child abuse. In order to make the charge of 3rd degree murder though, doesn’t the state have to make the charge of the underlying felony? In other words, to get a 3rd degree murder charge wouldn’t they first have to charge GZ with aggravated child abuse? I did not hear a discussion of any attempt to charge GZ with aggravated child abuse. In addition, since aggravated child abuse is a class 1 felony wouldn’t it have to be charged by the grand jury and not be an included charge of murder?
There is no way in HELL that an Aggravated Child Abuse Murder in the 3rd Degree conviction stands up on appeal.
NONE.
This is a DESPERATE attempt by the state to pull something out of their ass.
I’m not a lawyer, but I do have a JD. (Every post I make here, in fact, represents time I should have spent studying for the bar exam.) But, yes, generally the state must prove each element of the underlying offense in order to convict on this kind of charge. The state is guilty of being full of shit in the first degree.
This case is more obviously an attempted political lynching by the minute, the state isn’t interested in justice, it just wants to lynch someone to placate the mob.
No, no. The State doesn’t want to just lynch “someone” to placate the mob. It wants to lynch GZ. How dare he kill the boy whom Obama’s son, if he had one, would’ve looked like? The State wants GZ to pay for having just cause for doing a job that lots of young black males do all over America without cause and with the least bit of provocation.
EXCLUSIVE: Gov. Scott: State ‘In Contact With Law Enforcement Throughout Florida’
http://www.breitbart.com/Big-Government/2013/07/10/Scott-Florida-Trayvon
Rick Scott is to a great extent responsible for this mess, he didn’t have the courage to stop it before it got going.
Scott, Bondi, and Corey should all be put on trial. This should never happen in America.
At the minimum, their citizenship should be revoked and they be exiled for the rest of their natural lives.
As a consolation prize, they each get an iPod filled with BDLR speeches and arguments.
Unbelievable! Doing this because their case floundered. And, not just destructive with evidence, where the State DELETED text messages from Trayvon’s phone. Also delayed turning over testimony, so the defense wouldn’t have time to prepare!
BEYOND THE PALE. Professionals may call courtrooms da’ place where da’ bar is. But I think of it now as a saloon. And, all that needs to be added is a red light. Over the whore. In the black bathrobe. (Who uses Horn … the legal system’s Cliff Notes, to challenge defense on laws that support the defense. Even the OJ trial didn’t have this nonsense in it.
Child abuse? Seriously? A 6-foot-tall 17-year-old football player is a child?
And this from Angela Corey, the same gal whose last fling with the spotlight was when she insisted on charging a 12-year-old kid with first degree murder … as an adult?
Fun fact: Florida sends more juveniles into the adult prison population than any other state.
This sudden, new-found sensitivity about he’s just a chiiiiild! is kind of a weird look.
By statutory law (pretty much anywhere) the “Child Abuse” laws apply to anyone under the age of 18. It’s part of the hammer that DAs and other prosecutors like to use (sometimes wrongfully) to force an accused to make bad cases stick when the prosecution, or the Child Protective Services organization really has nothing to go on.
They’re written that way because for the purposes of removal and parental rights termination in a “Child Abuse” case, the burden is that of a CIVIL TRIAL (aka preponderance) rather than that of a Criminal Trial (proof beyond a reasonable doubt).
Jeralyn has a great summary of this show trial:
“Now that the evidence has been presented, my previously expressed opinions on this case have only become more solidified. Looking to the future, and the legacy of this case, here is what I see. Keep in mind this is only my opinion.
Whether George Zimmerman is acquitted or convicted, and I am not making any predictions before hearing closing arguments and reading the jury instructions, the legacy of this case will be that the media never gets it right, and worse, that a group of lawyers, with the aid of a public relations team, who had a financial stake in the outcome of pending and anticipated civil litigation, were allowed to commandeer control of Florida’s criminal justice system, in pursuit of a divisive, personal agenda.
Their transformation of a tragic but spontaneous shooting into the crime of the century, and their relentless demonization of the person they deemed responsible, not for a tragic killing, but for “cold-blooded murder,” has called into question the political motives and ethics of the officials serving in the Executive branch of Florida’s government, ruined the career of other public officials, turned the lives of the Zimmerman family, who are as innocent as their grieving clients, into a nightmare, and along the way, set back any chance of a rational discussion of the very cause they were promoting, probably for years.
The problems of racial disparity and arbitrary enforcement of our criminal laws are real, systemic and need to be addressed. Criminal defense lawyers see it and fight to correct it every day. From charging decisions to plea offers to sentences, the system is not fair and everybody knows it.
But this case has never been representative of those problems. And perhaps most unfortunate of all, as a result of the false narrative created by the lawyers for grieving parents who tragically lost their son — a narrative perpetuated by a complicit and ratings-hungry media — any attempt at meaningful reform is likely to fall on deaf ears for years to come.”
Link?
I knew that I forgot something. Here’s the link.
Thanks!
The summary can be found here:
http://www.talkleft.com/story/2013/7/11/22341/3139/crimenews/Benjamin-Crump-Who-Screamed-Doesn-t-Matter
On the self-defense issue, the judge refused to define what constitutes “great bodily harm.” Remember, that GZ must have had a reasonable belief that TM was about to inflict “great bodily harm” on him at the moment he pulled the trigger, in order for self-defense to apply. I could easily see the jurors during deliberations asking the court what constitutes “great bodily harm.” The Florida self-defense jury instructions do not define “great bodily harm.” (Many states do define this term, including California.) This might become a pivotal issue in the case. Be aware of it rearing its ugly head during deliberations.
In Florida, if you are committed aggravated battery on someone (which TM most certainly was), there is no requirement to be in fear for your life or great bodily harm. You may shoot the batterer for the simple act of battery.
Of course I doubt seriously THIS judge would give THAT instruction.
Look at the standard Florida jury instruction 3.6(f). Is the court giving the language under 782.02 (which requires defining what felony TM was committing when GZ shot him) OR is she giving the language under 776.012 (which does NOT require that TM was committing any felony or any crime when GZ shot him)? This is CRITICAL to GZ’s defense!
Where does Great Bodily Harm enter into the Statutes. The self defense statutes state:
The FL Statutes state
782.02 Justifiable use of deadly force.—The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which such person shall be
and
776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.
and finally why doesn’t this Statute Control additional charges?
782.11 Unnecessary killing to prevent unlawful act.—Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084
[…] Breaking – State moves to charge Zimmerman with 3d Degree Murder based on Aggravated Child Abuse […]
For this lesser, wouldn’t the State be required to show that Zimmerman was aware that the 5′ 11” TM was a minor?
If I read the Florida Statute correctly, Murder Three is the unlawful killing of a human being, “when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than” various listed offenses, including aggravated child abuse (Fla. Stat. §783.04(4)(h). So it seems that if Zimmerman was committing aggravated child abuse, Murder Three is expressly ruled out. The state must instead go for Murder One, which is defined to include the unlawful killing of a human being, “[w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any . . . [a]ggravated child abuse.”
The penalty for aggravated child abuse is separately stated under 821.03 under section (2)(c) as:
“A person who commits aggravated child abuse commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
I’m reading it the same way. Felony murder with child abuse is specifically exempted from Murder Three and specifically included in Murder One.
Well, it wouldn’t be reasonable to expect the state to actually read these things, now would it?
I read the statute the same way you do.
So isn’t it great for the Judge to give the defense a whole like 2 hours to research case law regarding the 3rd degree murder/child abuse charge that the prosecution has obviously been preparing for at least weeks.
Doesn’t there have to be an underlying offense of child abuse? IOW, it’s it really possible to be charged with two separate crimes for the exact same act? Because the only possible child abuse in this case is the actually shooting.
This seems illogical to me. If the contention was that GZ first abused TM then killed him, I could see it. But to say that the act of shooting him was BOTH child abuse and murder seems unfair and illogical.
I think the Floriduh Inquisition™ stated that the 3rd deg felony murder charge is predicated on an “un-enumerated” felony, and that means that it doesn’t have to be charged, or specified.
They further conclude that the underlying un-enumerated felony that triggers the 3rd deg charge is the killing of TM.
How you can charge on something requiring a predicate, and use the charge itself as the foundation has yet to be explained to me.
The state should not leave out the fact that George might have parked his truck in a no-standing zone after he was instructed by the dispatcher to let him know if Trayvon did anything else. Let’s put Zimmerman in jail for 10-20-life for not parking his car correctly.
VERY IMPORTANT QUESTION: Did the judge indicate how she will define self-defense? Will she require that TM was committing a specific felony on GZ in order for self-defense to apply? Or did she rule that self-defense does not require evidence that TM was committing a specific felony on GZ?
The answer to this question is CRITICAL to GZ!
I would wire around that by using a poster-board with the self-defense statute(s) on closing.
I know the State might try to object. Screw that. If the jury can’t be confronted with the law, well…
True enough, however, your premise is based on the judge wanting justice to receive it’s proper due.
Nothing I’ve read, seen or heard thus far inclines me to believe that is the driving force in this sham of a trial.
This judge has already been overturned by the DCA for not giving proper instructions relating to self-defense. If she is as dumb as I think she is, then she will not give the proper instruction again.
Florida wants to convict Zimmerman of something, anything any way they can do it. Well, they could convict him of littering. Leaving trash on public property.
Agreed, what you say is true. However, what the State really wants is a very long prison sentence for George and they are willing to get really dirty to achieve that!
I’ve heard people arguing (apparently with a straight face) that Zimmerman stalked Martin, within the meaning of the Florida stalking law. I’m surprised the state didn’t tack that on as an additional charge.
Do not give them ideas.
This move is straight from Holder’s DOJ. These prosecutors were not smart enough to dream it up.
State’s proposed jury instruction: “You are instructed that if a creepy ass cracker is following you it is sufficient provocation to give him a good beat down.”
For the child abuse case to be shown wouldn’t the state have to prove that GZ was using his face to beat on TM’s hands?
Is the proper argument against the bogus 3rd degree murder charge the double jeopardy clause of the 5th Amendment?
[…] As you will read (in case you wish to), the prosecutors cited extensive case law, indicating that they’ve been planning this ambush for a significant period of time. The defense, on the other hand, was given (by a judge who has never bothered to hide her bias in favor of the state’s prosecutors) until 1:00 p.m. to prepare their arguments against this outrageous breach of normal legal procedure. […]
If I was a woman juror and was suddenly asked to make a decision about child abuse of a 6 ft “little” kid….especially after hearing the neighbor’s chilling account of hiding in a locked room, 17 year old teenager shaking doorknob…..Not Guilty
.
I’m guessing defense is now regretting not bringing up THC matter. Nelson’s ruling on cellphone pics and texts proves to be more devastating than thought.
I was wondering about that myself. If a rape victim shoots a violent rapist in self-defense, only the prosecutor doesn’t reckon she had enough blood, bruises and broken bones to “justify” that self-defense, and then it turns out her six-foot-tall football-playing rapist was only a wee babe of seventeen…
Is she facing life in prison for child abuse?
Hell, given this prosecution team, they’d probably move to put her on the pedophile registry to boot!
SMH.
Why didn’t the defense enter into evidence TM’s can of 24 ounce Arizona iced tea as a deadly weapon? The state entered into evidence GZ’s flashlight as a deadly weapon. Should they have or am I reaching?
One very big problem here: it was a can of Watermelon juice, not ice tea.
FINALLY!!! George’s family is in the courtroom.
Right now the judge has someone looking for a way to hitch a 25-year firearm enhancement to a loitering infraction.
Obviously an attempt to overwhelm the jury with options so as to give them ‘lesser’ crimes to convict upon so they seem ‘fair’.
Just like charging Zimmerman with Murder Two was an attempt to overcharge to get him to plead out to something, call it a victory, and get the civil lawsuits going.
They want to throw this man in jail, by hook or by crook – the truth or the facts of the case be damned.
They really want to avoid the riots. It speaks VOLUMES about what they think about GZ – and what they think about the “community” behind Little Thug Wannabe Trayvon.
Again: only kangaroo courts and dictatorships do this.
Holy crap! She ruled in favor of the defense! At least she understood the prosecution’s desperate attempt to give the jury some excuse to hang a guilty verdict on GZ.
Judge Nelson;
NO 3rd degree murder or child abuse!!!
Thank you for following common sense and the LAW!!!!
There goes Mantei’s chance to be the legal star that he imagines himself to be.
I don’t get it. Why did she not go along with whatever the prosecution wanted, just as she has done so often? And this isn’t the first time she’s thrown a bone to the defense; why? It’s not as if there’s not been enough reversible error already. Surely she knows that if this ever goes to an honest appeals court they will rip her to shreds anyway; it’s too late to avoid that. So why not go all the way and help the side she’s so blatantly on?
Remember the old saying “rather several guilty persons go free than one innocent person lose their liberty”
.
forget it
No, no, no.
Lose the auto-play video please :-/
It seems to me, as one unfamiliar with the laws of Florida, that the jury has been hearing evidence based upon a charge of 2nd degree murder and possible manslaughter. If the charge becomes child abuse and 3rd degree murder, there is another whole set of facts and circumstances that need to be prosecuted and defended in a separate court case after a decision has been rendered by the jury in this case.
And the legal eagles say … ???
If this gambit fails, as the prosecution must believe that the 2nd degree charge has failed, we will likely see the honorable General Holder step in with a charge of violating TM’s civil rights.
It seems to me, as one unfamiliar with the laws of Florida, that the jury has been hearing evidence based upon a charge of 2nd degree murder and possible manslaughter. If the charge becomes child abuse and 3rd degree murder, there is another whole set of facts and circumstances that need to be prosecuted and defended in a separate court case after a decision has been rendered by the jury in this case.
And the legal eagles say – since the phrase “child abuse” has not ever been been mentioned to the jurors?
If this gambit fails, as the prosecution must believe that the 2nd degree charge has failed, we will likely see the honorable General Holder step in with a charge of violating TM’s civil rights.
As I commented elsewhere, the “Child Abuse” laws are written in a ridiculously broad form, in order to make just about anything stick.
For child abuse purposes, the victim must have been under the age of 18 and that the “perpetrator” must have willfully or intentionally committed his act or known that it was highly likely from his intended actions, and from that act the child victim suffered death or great bodily injury.
All of those elements were already presented to the Jury. But, if that is the case, they Prosecution SHOULD have brought it up at the initial presentation.
Now the BIG QUESTION:
Was the “Child Abuse” charge a big, red herring in order to try to get the Manslaughter charge slipped in by throwing off the Defense by forcing the defense to have to make the argument against the ridiculous suggestion.
Don West was rightfully outraged. The instructions were BURIED with the intent to slip them by the Defense, which in and of itself should be grounds for disbarment of BDLR and the Prosecution team, on the grounds that as officers of the court, they have a duty to not mislead the “public” or act in an unethical manner which might harm the public (of which Zimmerman is a member).
No. Under Florida law, manslaughter is a required lesser offense. It would be an exception to the law to exclude it from the jury instructions. It’s allowable, but not the norm.
That was my point.
West probably came bear with a toothpick on trying to get the “manslaughter” charge blocked as a jury instruction, but having to make the argument against the Child Abuse charge (as ridiculous is it was) would let Judge Nelson look “reasonable” by blocking the Child Abuse charge, but letting in the Manslaughter charge.
While it’s out of the norm to not include a manslaughter charge in murder cases, in this case it would have been highly appropriate to not give it, given the “self-defense” nature of the case.
gad-fly | July 11, 2013 at 1:16 pm
“If this gambit fails, as the prosecution must believe that the 2nd degree charge has failed, we will likely see the honorable General Holder step in with a charge of violating TM’s civil rights.”
In that case, I would once again raise the issue of this happening in an HOA common area of a gated community, and not city streets.
This case confirms what Lysander Spooner wrote:
I wonder if West will retire in disgust after this trial and all the legal issues surrounding it are finally resolved?
One thing is for sure. It will be a cold day in hell before I ever set foot in the state of Florida. They’ve lost me forever.
The second sentence of the prosecution’s closing was a blatant lie.
I can’t listen. Who’s closing…???
BDLR.
Good news!
Not for those of us having to listen to him. 🙁
God, BDLR’s voice is irritating.
So why are all the prosecution lawyers rude and snarky, and the defense lawyers are respectful and calm?
NOW he wants to thank them? That should have been the first thing out of his mouth.
BDLR Trayvon is dead because Zim made assumptions.
Yep. He assumed he was being beaten.
Yeah, she truthfully testified that she had perjured herself. Nice one, Bernie. I’m sure MOM won’t find any way to use THAT in his closing.
Moron.
Skeevy Uncle Bernie. I’m sorry, something about that man just makes my skin crawl.
I had to turn it off. I just couldn’t listen any more.
From what I get from the Twitter feed, he is doing as crappy a job as I would predict.
Not to down any prosecutors, but there could be a reason this guy works for the State….
You never get laid off.
Am I wrong to hope for a conviction, just so that an appeals court will get a crack at the case, and a chance to comment on the blatant judicial and prosecutorial misconduct? Because if he’s acquitted then all that becomes moot, and her rulings stand as precedent!
[…] This is all dependent, of course, on Zimmerman not getting a ‘consolation prize’ conviction for SOMETHING, as the prosecution is now desperately hoping. […]
[…] should be driven by the likes of Al Sharpton and co. Trayvon was no child. As I read this post, George Zimmerman | Child Abuse | Jury Instructions, I thought about this comment. Shame on us for allowing this pestilence to invade the halls of […]