Then something changed.

The prosecution asked the judge for something called a “lesser included offense.”

What does that mean and why are they asking for it?

Under the law in most states, at the end of a trial, the defense or the prosecution may ask that the judge add another, new charge that would be considered a “lesser included” offense.  The rules tell the judge the new charge can only be added if there’s some evidence that would support the jury finding the defendant guilty of something less than the full, original charge.

In Mr. Zimmerman’s case, he’s charged with 2nd degree murder.  The prosecution has asked for and the judge has agreed, that the less serious charge of Manslaughter be added for the jury to consider.  Now, there are three choices for the jury: 2nd Degree Murder, Manslaughter, or acquittal.  Manslaughter is a type of homicide but it’s closer to accidental killing than the 2nd Degree Murder which means the jury must find that Mr. Zimmerman intentionally wanted to kill Trayvon Martin.  To find Mr. Zimmerman guilty of Manslaughter, the jury must find that he killed Mr. Martin but that it was almost an accident, that Mr. Zimmerman didn’t intend to kill the other man.

Why would the prosecution ask for this?

Usually, they’re worried the jury will acquit the defendant on the original charge because of a weak case.  I suspect that’s why the prosecution asked for the lesser included offense here.  They are worried the jury would not convict if given only one offense and Mr. Zimmerman would go free.   That’s supported by the fact the defense fought against the inclusion of the lesser included.  In my experience, they really didn’t have much to argue about.  If the judge thinks there’s some evidence that the jury could use to find Mr. Zimmerman guilty of the less serious charge, the judge almost has to include it.  Which she did.

The defense must have been confident enough that the government’s case was so weak on the 2nd Degree Murder, they were willing to “go for broke” and hope the jury would acquit Mr. Zimmerman.

After the years I’ve defended criminals in trial, it’s almost always a good idea to include something less serious.  I think juries often want to “split the baby” and give a little to both sides.   In Mr. Zimmerman’s case, his lawyers obviously thought differently and were willing to take the risk of all or nothing.

We’ll see what the jury decides.

The post George Zimmerman–Now What’s Going on in his Trial? appeared first on Colin T. Nelson.

The news media has covered this story in great detail and I won’t repeat the many things they’ve discussed.  Let’s focus, instead, on what self defense really means.

The concept of self defense is as old as any law on the books.  It makes sense that this should be the case since we all have an internal, instinctive feeling that we should be able to defend ourselves and our families and homes from aggression.  In the law, it means that even if you kill someone else, if you were acting in self defense, you may be found not guilty.  It doesn’t mean the jury would decide you didn’t kill someone; it means that you’d be excused from liability.

But the self defense statutes are more complicated than what we commonly think of them.

Most self defense laws state that force can be used to protect yourself but only if you feel that your death is imminent.  Even then, you have to use force only to the degree that a reasonable person would use to stop the aggression.  What does that mean?  If someone comes at me with a knife unless I feel he will actually stab and kill me with it, I can’t rely on self defense to excuse me if I shoot him to death.  If the aggressor is using fists, can I respond with a gun?  That’s the question the jury will decide in Florida.  Did Zimmerman feel that he was in imminent threat of death that would allow the use of a gun to protect himself?

There is also the duty to retreat in most self defense statutes which states the defendant has a duty to try and get away before killing the aggressor.  If you are cornered and unable to escape, self defense may be the only choice you have and if you feel your own death is imminent, you are justified in using force to repel the aggressor.

In my experience as a criminal lawyer and having tried dozens of trials, I know that juries take the law of self defense seriously.  It’s one of the strongest defenses available to us as citizens.  But I also caution you to not depend on the media to give you the full story about what’s going on in the case of George Zimmerman.  It’s not that the media mislead us, it’s just that they are confined to certain amount of time and space in their stories and so, leave out many critical details that the jury will hear about self defense.

For instance, early in the case, the media reported that  a witness for the prosecution, Ms. Rachel Jentel, had very damaging testimony against Mr. Zimmerman.  It made him look guilty.  When she actually testified, it revealed that the police had questioned her in the presence of Trayvon’s mother!!  As a former prosecutor, I can tell you this is a huge mistake on the part of the police since it obviously leads the witness to slant their story toward the victim.  Ms. Jentel should have been interviewed by herself in a neutral setting.

My point is that the evidence the jury hears is often much different than the news information we hear through the media.  Let’s wait and see what the jury decides.

The post George Zimmerman and Self Defense appeared first on Colin T. Nelson.

Assuming the news from the media is accurate, it sure looks like George Zimmerman should be charged with some level of homicide.  However, as a former prosecutor, I can tell you it’s a lot tougher than the media makes it look.

The easy part is to charge him.  The tough part will be to convince twelve jurors (if Mr. Zimmerman demands a trial) beyond a reasonable doubt that he’s guilty.  Why?  There are some major hurdles for the prosecutor in this case:

1.  There are no witnesses except Mr. Zimmerman.  Any good defense lawyer will insist that Mr. Zimmerman not say anything about the incident.  And he can never be forced to talk about what happened.  Since he’s been charged with a crime, he has a 5th amendment right to remain silent.  (Even as a suspect, he retained that constitutional right).  How will the prosecutor prove exactly what happened if there are not witnesses?  Even Trayvon Martin yelling for help, doesn’t prove that Mr. Zimmerman intentionally murdered him.

2.  If Mr. Zimmerman chooses to go to trial, he may testify in his own behalf and claim self defense.  The jury will only hear his side of what happened.

3..  The stand your ground law in Florida gives Mr. Zimmerman a tremendous legal advantage that the prosecution must over come.  Unlike most other states, Florida law allows a person to decided to defend themselves if they, the defendant, feel threatened.  In Minnesota, for instance, the actions of Mr. Zimmerman would be weighed by the jury by looking at what a reasonable person would do in similar circumstances.  Florida, in contrast, gives the jury the job of viewing the situation from Mr. Zimmerman’s perspective–i.e. did he feel threatened and therefore could kill someone in self defense.

These problems will be tough for the prosecution to overcome.  Unless they have more evidence that hasn’t been released to the media and public, I think it’ll be very difficult.

So why did they charge the case?

I think the combination of pressure from the public and media forced the authorities to do something.  Although a prosecutor has an ethical duty to only charge cases that they think they can prove, the pressure from all sides pushed this prosecutor to act.

It’ll be interesting to see what develops…  Earlier in the week it appeared that Mr. Zimmerman had fired his lawyers and was anxious to talk to the media.  If this is true and he does talk…who knows what he’ll say and how it may affect his defense.

It’s a tragic situation that is a result, in my opinion, of too many guns in the hands of untrained people backed by state laws that give them the idea that they can “shoot first and ask questions later.”

Do you agree?

The post Zimmerman Charged with Murder appeared first on Colin T. Nelson.

1.  “Walking While Black.”  This is close to Driving While Black that many of my African-American friends tell me about.  As a middle-aged, white male with silver hair who often dresses in suits and ties, I’m never stopped for anything–which goes to show that this concern by people of color is true.  Certainly, we all have to be careful for our safety, but for this profiling to still be a problem in America is sad and frustrating.

2.  Gun Groups.  Although they express sorrow at the death of Trayvon Martin, they still insist that it’s the individual, not the law, that is the problem.  The stand your ground law in many states simply tries to even the playing field between criminals and innocent people–giving the innocent person legal protection if they shoot to kill.

3.  Anti-gun Groups.  These people disagree and say the new laws give legal cover to the fringe of crazy people who are intent on harming others.  Under previous law, there certainly was a right to self-defense.  However, you couldn’t use more force against the attacker than he used against you.  For instance, if you were attacked by an unarmed person who wanted to punch you, it would probably not be self defense if you pulled out a gun and shot him.  That would be using force out of proportion to the threat.  The new stand your ground laws throw the idea of equal force out the window.  Now, by simply saying that you acted in self defense, you escape legal liability.

During the research for my new novel, Fallout, I studied some of these fringe groups, vigilantes, and armed militias in the U.S.  If you think they were scary before the stand your ground laws, this gives all these nuts legal cover to act on their fears of rampant criminal activity and intrusive governments.  I think we’re in for scary times…

What do you think?

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