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View original postThe issue comes back to Reasonable Doubt ultimately anyway. That's why from a pragmatic perspective the alternate burdens of proof play a lesser known role when people discuss self-defense, etc. There's intentionally no probability attached to these things, except preponderance of evidence which one could say 50%+, at least for only two realistic scenarios. But the 'better 10 guilty... 1 innocent' does attach a vague ballpark to reasonable doubt, 90%+, and that sort of damages 50%+ for two opposing scenarios because in effect you don't need 50%+ that it was self-defense, you need 10%+ of self-defense to establish its no longer 90%+ to be guilty.
View original postAnd that's what it comes down to, we've decided that people don't go to prison or the chair unless it is 90%+ and that's all the defense needs. You may feel self-defense should require a lower bar, a partial shifting of the burden, but its the degree to which someone needs to prove that which really matters. No state has self-defense dialed up so high zero justification beyond the claim is needed, nor any so low that proof by the defendant needs to be beyond a reasonable doubt. What you're essentially arguing is that you object to the 'better 10 men' aspect of things. Nothing wrong there, it is a statement much easier to say as a theoretical then swallow in application since it means swallowing someone you think is 89% likely to be guilty being back out on the streets. And when you throw in recidivism rates, one would have to contemplate that if 1 in 2 murderers will do it again then for every one innocent man in prison for murder we essentially killed 5 people from not putting those 10 behind bars.
View original postThere's no getting around it though, if you feel 'more likely than not' is the proper standard for a self-defense case, you're saying its okay to sentence someone for murder if there's a 49% chance they had self-defense. So again, while self-defense does require an affirmative defense much of the time, the level is essentially whatever is needed to make it reasonable doubt.
View original postI understand the entirety of a jury trial rests on the concept of reasonable doubt. And I do believe that having to prove the guilt of the accused is the state's duty. However, I also believe that if lethal force for self-defense is claimed, it should be on the defendant to justify their claim. I will stand by that rationale, even moreso in light of the Zimmerman trial, because I think the taking of another life is something that should require more thought and effort than simply making a statement to police and refusing to testify at trial. If you or I kill someone fearing for our lives, it should be on us to prove that the situation warranted such a deep fear that deadly force was necessary. I do not think that "I was losing a fight I started" is a good enough reason to use deadly force, except -- as pointed out previously -- in the rare event that the fight flipped sides to the point that there was (a) some effort to try to remove oneself from the conflict
and (b) the other person refuses to allow a retreat.
It is on the defendant to justify SD. I'm not sure how many other ways this can be said. This is the whole source of reasonable doubt in a SD case. In SD, the act itself is a definite, to the point of the highest tier, beyond a shadow of a doubt, or as close is conceivably possible. In SD we know the person did it, reasonable doubt then has to do with why they did it. The defense is trying to prove that the person's reasons for pulling the trigger were not those of a murderer because it was SD, and thus the entirety of the 'doubt' revolves around that. This is very clear, yet you do not argue against it rather you seem to simply ignore it as an inconvenient fact. Once a trial inserts an SD element into it all focus switches to the SD component, because the killer is identified and admitted. Thus they, having admitted to the action, must now provide proof they had cause, in reverse of the norm, but that level of proof only need to rise to whatever degree drops it from 100% Guilty to 'reasonable doubt'.
View original postNow in terms of intentionally murdering someone with self-defense in mind, that's much harder than it sounds like. There's no dispute who did the killing, and a SD claim has to be made pretty early on. So the investigators don't need to jump any hurdles to investigate the accused nor split focus to other scenarios. They will be digging around for everything, internet records of you googling self-defense laws in recent months for instance. Emails or witnesses establishing you knew the man, etc, and had a hostile relationship. They're probably going to find something unless you didn't know the guy or were very careful. In either case it is a hell of a lot easier to kill them and not stick around to claim SD. We don't get a lot of bogus SD claims attached to prolonged preparations for the simple reason that anyone that cautious and dedicated is likely to try a safer route. Upping the burden on the defendant to prove it was self-defense is really very unlikely to cut down on murders.
View original postI would argue that, if the investigators perform a thorough investigation into the claims and fully collect all forensic data and statements at the time of the commission of the crime, a self-defense claim should be fairly easy to justify. I know you do not want to revisit the Zimmerman case, but I will use it as an example of how
not to investigate a crime, because the police never checked Martin's phone record to see if he was on his mobile at the time of the altercation. It took the person Martin was speaking to to come forward before anyone realized there was another witness to the crime. If the police investigators cannot do their job in a thorough manner, then they are basically conceding that there is little they can do to determine the guilt or innocence of the accused and are simply taking him/her at their word that their version is not only accurate but truthful enough to warrant no further action.
View original postThe police are only human, but in the investigation phase, if there is any hint of a possible crime committed there should be a thorough investigation completed to determine if charges should be filed. Most seem to agree it was not done in this specific case, and in many other cases there are plenty of defendants who are either wrongly accused or wrongly convicted because of a botched or corrupt investigation. I don't think the human element can ever be removed, but I also don't think a crime as severe as a potential murder should be swept under the rug simply because the defendant gave a statement that claims lethal self-defense was necessary.
You may argue all day long that if the investigators do their jobs a SD claim should be easy to justify. However, there is a problem with that argument. One must rely on the investigators to do their jobs, as you note, they aren't perfect. Like many arguments made in the heat of passion on one specific case it sets you up for heartache down the road. Big black man with lots of priors shoots a white girl, cops show up, figure he's guilty as hell, haul him off, do minimal investigation till its too late. He clams up completely, he doesn't trust police, evidence all tainted by the time his lawyer, an overworked public defender, gets the story out of him. Self-Defense, he says, the girl was a doper, no money and desperate for a fix, he sells, she tried to rob him and pulled a gun. He grabbed it and they struggled, he shot her. Forensics half-assed it and fucked up, happens all the time, CSI and the like are about as realistic as Star Trek. Open and shut, man's a drug dealer, he wasn't talking, he did it, and hell even if he didn't he deserve to fry. Now by your logic, laws changed now, his SD claim requires serious positive proof from forensics, so he's fucked.
View original postYou should try it some time, I've had to help draft a lot of ordinance and such over the recent years, especially of late, and its changed my perspective a lot. It hammers home that law often requires specificity and that criticism of law is best done the same.
View original postI once took a summer workshop when I was in high school which put us in the positions of pretending to be state legislators. I'd much rather watch paint dry, thanks.
I do know how the creation of laws works and the issue of unintended consequences. However, the claim I was trying to make still stands: when a verdict is perceived to be unjustly reached through a fair process, the laws which created the outcome should be revisited and rewritten so that a person who commits a crime can be properly brought to justice rather than simply acquitted because the law as written does not fit the crime they are accused of. I strongly believe that we should not be putting innocents in prison, but at the same time I also strongly believe that when the evidence points to a criminal conviction, that conviction should be able to be reached without confusion by the jury.
I am not ever going to endorse any policy that's based on the public perceiving a verdict just or not. They are welcome to revisit the laws though, that is very definitely the publics' right. They need no other reason then that they think the law is incorrect.
I also believe that if the evidence points to guilt it should result in a criminal conviction, if it pointed beyond a reasonable doubt. I should imagine, or hope, that all feel that way. Oft times though people seem to forget that it is jury, not them, that need swaying, and that this is not an accident. You have seen evidence that they did not, I've heard people rattle on about Zimmerman's past and Martin's past and so on, do you not think, do you not realize that such things as you see but the jury did not are usually removed from their sight for good reasons? Even if you think some should not have been, if even one thing about the case was banned by the judge that you think was right to be banned, but you know of it, you are tainted? Biased? Prejudiced? No longer suited to the subject, anymore than a patient in a medical test who knows they're on placebos?
View original postView original postAlso you're bringing up Zimmerman/Martin again, I'm not just telling you that you shouldn't need to, I'm telling you that it damages your entire argument to rely on that. You're essentially announcing in 40-foot high flaming letters that you want the law to have resulted in a guilty conviction in this case rather than really considering the law in general terms. And when law gets written up that way it usually results in even greater unfairness to others down the road.
View original postI agree with you on the greater point that writing laws specifically to address one instance of a criminal case is terrible policy. It results in policies like having to take shoes off at the airport because one person tried to smuggle explosives in their shoe, but yet -- thankfully -- underwear is still ok to have
under one's clothes rather than stripping naked to board an airplane after someone tried to smuggle explosives in their underwear. Still, the trial is useful to illustrate the point of why I think the law should be altered but I will do my best to try to speak in general terms.
View original postView original postThat's actually fairly irrelevant of course, you objected to Florida law on SD before you read it, basically nuking the notion that you found the law in of itself flawed but rather just objected to the law based on the outcome of the case differing from what you wanted. Not a point for objectivity, especially when you were, and remain, unable to really put into words your objection to the letter of the law.
View original postI will try to make this the last reference to the case in our legal discussion, because I really want to make this point:
View original postFrom the beginning I have objected to the interpretation of self-defense as offered by the jury in the Zimmerman case because the jury seems to have never considered that both men had a right to self-defense. The fact that I did not initially research the letter of the law is beside the point, because my main concern is that the law was never applied fairly. I realize that Trayvon Martin was not on trial and can never be on trial since he is dead, but this specific case had "manslaughter" written all over it from the beginning. But now that the jury has spoken, I am trying to come to terms with the fact that a series of botched legal processes has resulted in a guilty (as I see it) man walking free. This is the way the jury process works, but it does not make it any easier to reconcile with how I perceive justice to be served.
The jury has no reason to contemplate a dead person's right to self-defense, it is irrelevant, they are not on trial. As I've repeatedly said, multiple self-defense claims can exist without being contradictory. It wouldn't matter in the least if the victim had no harmful intent and was attacking in clear self-defense. Though admittedly a jury might swing on that, and the defendant if we still had hangings. What matters is if the defendant believed their life was in peril and if that was reasonable. Again, two guys here cries for help, here a dangerous madman with a gun has run into that abandoned warehouse, both run in, both turn a corner, both see a man with a gun, both had self-defense rights and neither was acting with any criminal intent, at the survivors trial all that matters is his right to self-defense. You seem to almost consciously avoid this line of reasoning.
View original postPart of my interest in the trial was my fervent hope that a young black man could be seen as a person with every right to be walking home from the store without being thought of as a thug or criminal,
There's your first big mistake, criminal trials don't exist to satisfy your hopes, fervent or not. It's an understandable reaction but it still an emotional reaction that is beyond the scope of the trial. The trial is not about making sure black's are treated equitably when killed or Hispanics equitably when accused of murder, it was about whether or not that specific man was guilty of that specific crime. No more, no less. That specific defendant and that specific crime might hinge on race in some fashion, but otherwise it is irrelevant and even if it is there it only matters in terms of that single case.
with his own right to defend himself against an aggressor who has actively pursued him for no good reason.
That's an opinion, the jury disagreed with it, or did not find it proven beyond a reasonable doubt.
What I got instead was a sloppy police investigation and a prosecution which failed to bring the salient points of the conflict and instead relied upon the how instead of the why. Nothing in the written law can change a terrible prosecuting attorney from failing at trial, but I think as a non-lawyer I probably could have come up with a better series of witnesses and arguments to get a conviction than the prosecution did.
The Prosecution's mistakes, or perceived mistakes, are not the defendant's problem, proof of guilt, or legitimate grounds for political wrangling unless its to get them fired. Problem here is most people have never really seen a trial before. They've seen TV dramas and they've seen these circuses. Another reason why people shouldn't make overarching commentary on criminal justice based of these abominations, they get queer notions about criminal law. I don't really blame people for being jaded about justice when their exposure to it what it mostly is, anecdotal stories from biased friends about how the law fucked them that bare no relation to the truth most times, TV dramas, Political grandstanding, and the occasional circus act. People get angry, they take sides like it was a sporting event, they demand change! but they've no idea what should change and all the legal experts stare at the laws and nod and say 'well I might tweak X', 'I disagree' because the laws are fairly decent. Of course sometimes they demand change very loudly, and they get it, and a couple years down the road they look at what they've got. It usually ain't too pretty. Law's named after people, or laws where the politicians wax on about it being a 'true constituent driven change' are usually the ones you want to stare at. Tougher on crime, hey, who doesn't want that right?
View original postIt comes out today that the jury instructions of the state of Florida has a line which reads "an aggressor cannot claim self-defense and that a person who aggressively follows another person is an aggressor." The defense successfully argued that this language should not be included with the jury instructions, and the judge allowed their argument to stand. That one line is the entirety of the prosecution's argument against Zimmerman -- that he actively pursued Martin and caused his death. That was the whole reason for the outrage against the verdict, because it was obvious to everyone involved that Zimmerman made choices which resulted in him being the aggressor. An aggressor, by law, cannot claim self-defense. This is why I argue that the definition of "aggressor" needs to be made more clear, but I do not have the time or inclination to rewrite Florida's laws for them, so I suppose the entire exercise is moot...
What's missing here is the transcript of that argument and the judge saying why it wasn't to be included. I googled it, and the only hits were for Democratic Underground and Daily Kos, all multiple hours old. I'm happy to review the transcript but beyond those not exactly being great sources to quote to a Republican I'll tell you what I tell everyone else when I see things that aren't brand spanking new and only being mentioned on a handful of sites not known as giants of news. "If there was much of a story there, someone would probably have run with it by now."
You may well be right, it does sound weird, weird enough that my reaction is skepticism. Considering the sheer amount of Pro/anti coverage on this, if it wasn't a very solid and reasonable judgment we would have heard it trumpeted from the walls by now. Still, show me the transcript, it is on line I'm sure, without even needing lexis-nexis probably.
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View original postEverybody lies, and people often say untrue things they believe are true even when they clearly contradict other things they're claiming. Perjury is - with good reason - tricky to prove. Eye witnesses to events, especially ones involved in them, routinely not only remember things inaccurately but remember things they want to be true, and the more they replay it the less accurate that memory becomes. This is very true of traumatic events and especially of ones where your own actions are under judgment. I've known people who shot enemies in blatant justified circumstances but before long were sick with grief and uncertainty over it and rapidly had their own version of events mutate from what others witnessed to be more guilty. I've known others who totally fucked up in a battle and before long had rewritten events to include things that justified it that didn't happen but which they truly believed did and hell I've seen others involved rewrite their own memories to be truly convinced it did. People make lousy witnesses, especially for almost any occasion we need good ones.
View original postOn any criminal matter he said she said generally results in a not guilty if that's all there is. It doesn't matter what the crime was, shoplifting or rape or murder. Now you keep talking about justification but you seem to keep ignoring that the need to justify a killing is not under discussion, its already there quite firmly. Once it has been established you've killed someone you must explain why, if you can. Inability to do so, at all or insufficiently doesn't conclude the matter though. This is why I've advised you to keep to hypotheticals.
View original postExample: Two men are found, one dead, the other unconscious clutching a gun. He reports to have no memory of the event, but all evidence conclusively demonstrates he shot the other man.
View original postNow this man can't really claim self-defense and justify it because he remembers nothing, but the case is not over, the state must still prove beyond a reasonable doubt that it was a murder. Again, this is the hazy nature of affirmative defense, it implies a burden of proof but it still ultimately comes back to the beyond a reasonable doubt burden on the prosecution. Yet the defense can offer nothing, the defendant remembers nothing, the defendant does not recognize the man. Now based on your prior remarks you think this person is well setup to escape justice, but not so. Motive, means, and opportunity. The last two are established, the prosecutor needs to come up with the first, if he can show the defendant did know the man, well that's pretty solid - though not definite - proof he's lying but that lie does not necessarily mean he's a murderer. He may well have met the man in passing, in his memory, but blanked out the altercation they had at the bar that led to the fight and killing, and been afraid to admit he knew him at all, or later remembered him but been afraid to change his story. From what you've been saying in this and recent posts, that act of not apparently not telling the truth should result in a conviction. But this is where we get into the practical, because that bar altercation is going to have been witnessed, forensic evidence may exist indicating who started the tussle, and so on, and it has to convince a jury beyond a reasonable doubt. Its not that rare or impossible, most murders that make it to and through a grand jury do result in convictions.
View original postI know everyone lies to one degree or another. I also know that when someone is a habitual liar, and provably so, their word should not count for much at their trial if their lying habit is exposed publicly. Once a jury believes their credibility, there is not much that can be done about the outcome, and that is where the conclusion of this particular trial has left us.
That sounds like an opinion again, people are often very free with the word liar. I'm quite sure if there was strong evidence the defendant was a habitual liar, especially if it was in statement's he made included to the case, the jury would know about it and have been told so by the prosecutor fifteen jillion times, most prosecutors will seize on any even mild lie or possible lie to bang that drum to the jury. Presumably the jury didn't find it as persuasive as you.
View original postLook, we can argue hypothetical situations until the cows come home. It does not change the fact that the application of the law in Florida leaves much to be desired. If it is possible for someone to initiate contact and start a chain of events which results in the other person's death and they are not an aggressor, then we need to question what it means to act aggressively. If I shout insults at you until you get angry enough to strike back and I shoot you dead, I am apparently justified in claiming self-defense, even if you only get close enough to give me a bruise. Probably not even then, as long as you "look menacing" such that I can convince a jury that you are a fearful character. Am I being aggressive by provoking you to action? If I follow you and, without identifying myself or my intentions, try to chase you down simply for walking home from the store, am I acting aggressively? If the two men in your scenario were involved in an altercation that many witnesses can prove was a mutual escalation then a self-defense claim is more probable as "heat of passion" is an excuse for an accidental killing. If one definitively provokes the other, the one provoking the fight should not get to claim self-defense without a pretty high justification for acting with deadly force.
Well we can argue hypothetical all day, typically its the best approach to crafting decent law. Now as to 'fact', you've tossed that term out again above and frankly you might be best to consult a dictionary before using it again.
Opinion: The application of the law in Florida leaves much to be desired.
Fact: Jay Sherman has said he believes that the application of the law in Florida leaves much to be desired.
I don't normally jump all over people for that sort of thing but it seems proper here. Now without really knowing the case its often hard for me to judge what you say, but you often have spoken with great confidence about something that is clearly open to interpretation, and even then your interpretation if correct is over-simplified, under thought out.
Example: If I follow you and, without identifying myself or my intentions, try to chase you down simply for walking home from the store, am I acting aggressively?
The answer is: It depends, depends on a lot of things, and since it does, the answer can be no or yes. It will depend on the individual being approached, the approaching person's manner, where and when we are, and many other factors. One big one, I wouldn't assume someone was chasing me down simply for walking home from a store unless they had been tailing me since I left the store.
In general though, me personally, I am quite used to being approached by people I don't know, often because they remember me but not I them, but sometimes because they want a dollar, or they would like to sell me something, or because they need a handing jacking up their car, etc. Typically I sidestep slightly and turn to see if they are clearly heading towards me or just in my direction, and attempt to look at their face. To see if I recognize them or if their expression indicates they recognize me or for any other telltales as to intent that 30+ years of interacting with other humans might suggest to me. If it is night time, I will usually choose to pause in the light of a streetlamp and make such visible signs of a person pausing for good reason. In my case, stepping to a place to light a cigarette out of the wind where I can look at them without it being blatantly obvious and also be out of their immediate arm reach if the continue on a straight path. That's pretty much the extent of it, sometimes they passby, sometimes they toss off a nod or hello, I smile, nod, and reply, sometimes they stop to bum a cigarette or ask for money. I'm not a small guy and I don't look like a victim, were that not so perhaps some of these interactions would have turned out differently. I believe that is more or less my behavior as a younger man too, but the interceding years have made me more wary and relaxed at the same time, and more experienced, and my time in warzones left a decided edge of mild paranoia about the good will of strangers in me. Still that seems a fairly reasonable action many would take to an impression someone is pursuing them. Again it depends on the person(s) and the specific events. Pursuit is not often going to be automatically aggressive though, there need to be reasonable indicators.
