A Random Bit Of Media Criticism

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169 Responses

  1. Greg the Oaf says:

    Slightly off topic, but can the prosecution somehow prove (if that's the right word) that George Zimmerman following Trayvon Martin was an aggressive act in itself, and therefore Trayvon Martin might have had a reasonable fear of HIS life (correctly so, it turns out)? Can you say rightly that George Zimmerman acted in self-defense to aggression that resulted from an act of aggression of his own? I follow you, you punch me, so I'm justified to shoot you sort of thing..?

    I've heard no one talk about this, and the prosecution does not yet seem to be going this route. I'm not a lawyer (obviously), and don't know the soundness, but it's something I've been thinking…

  2. AlphaCentauri says:

    The same thing occurred to me. Why is it self defense when Zimmerman uses a gun, but not when Martin uses his fists?

  3. Caleb says:

    @ Greg

    I'm no expert in FL law, but generally, one is entitled to use force proportionate to their reasonable apprehension of bodily harm. State specific statutory and case-law presumptions apply here, of course. But in general, following someone in a public right of way is not considered threatening by a reasonableness standard. That is, the following person must demonstrate more than mere following to establish a reasonable apprehension of immanent bodily harm.

    That's why the prosecution has not gone this route. It's a dead end.

  4. My impression (based on what will no doubt be revealed as a truly monumental ignorance of legal history) was that the Napoleonic code placed the burden of proof on the accused. Is that my error, or are you making the hidden assumption that France forms no part of civilized history (an assertion that I'll not try to refute)?

    I have also a vague recollection that parts of Roman law–at least as practiced in the provinces–were not particularly concerned about "innocence" or "guilt" so much as "absence of troublemakers." If someone complained about you, you were a troublemaker (or they were, or both) and the magistrate's first concern was to remove the trouble.

  5. David Schwartz says:

    @Greg: That argument would concede that Zimmerman's use of force was in self-defense in every State except California. Someone can follow you, chase you, call you the N word, and do almost anything short of physically assaulting you, and then if you physically provoke them and make them reasonably fear for their life, they can shoot you. If you don't think that's fair, write to your State legislature.

  6. Caleb says:

    @ Alpha

    It would be, if the prosecution had sufficient evidence of a immanent threat of bodily harm from Zimmerman to Martin. They might have such, or they might not, I take no position. But absent such evidence, the prosecution cannot undermine Zimmerman's claim to self defense based on a hypothetical claim to self defense by Martin. That would violate the presumption of innocence, which is what Patrick is getting at.

    Clear?

  7. Ken White says:

    NPR would have a locally-non-exploitatively-cultivated sustainably-bottled wine sprinkled-oaf.

  8. Caleb says:

    @ Stephen Hutcheson

    The Napoleonic Code is indeed seminal in most modern Civil law jurisdictions. The only civil law jurisdiction in the US is Louisiana. Otherwise, you are better served by looking to British common law as your precedential basis when analyzing US law.

  9. Tom says:

    NPR could have dug up a retired Soviet judge from the Brezhnev era to cover this trial, and given him an undergraduate Russian major as a translator, and their listeners would be better informed than they are today.

    Ha! It's funniest when it's true.

    And Ken, If it was a non-white, young reporter, it would have been a Moscato sprinkled oaf.

  10. Allen says:

    As I always told the younger folks I trained, "have someone else who is knowledgeable in the subject read your work first." It really does cut down on your crow intake.

    It would seem that many reporters thrive on that meal these days.

  11. If reporters like this one are eating crow, they sure as hell aren't doing it in public…thee is a major problem right there. When did you last see a journalist or talking head say "oops…that issue I wrote or talked about last month? i was talking nonsense"?

  12. Mark - Lord of the Albino Squirrels says:

    "In actuality, all a defendant needs to do in Florida is to introduce competent evidence that he was confronted by force sufficient to make a reasonable man fear for his safety."

    Granted the NPR coverage was not just ham-fisted, but whole-roast-hog fisted, but is the above quote true *without* invoking Stand Your Ground?

    Without SYG, I thought there was still the Duty to Retreat requirement to be overcome by a defendant arguing self defense.

    Granted, I am picking on the generic use of "a defendant" here. From what I understand of Florida law this probably does not apply to Zimmerman's case specifically. The circumstances there would seem to nullify the Duty to Retreat requirement.

    (Not a lawyer, just an "average citizen… confused by the laws that govern him")

  13. different Jess says:

    …self-defense is an affirmative defense… all a defendant needs to do in Florida is to introduce competent evidence that he was confronted by force sufficient to make a reasonable man fear for his safety.

    Ah-ha! I thought there must be something like this. Having been in a few scrapes, especially as a 5'11" 158-lb. high school weakling, if I'm on the jury there's no way this guy walks. That any situation could have caused this grown-ass man to fear for his life from the fists of a skinny, much smaller high-schooler, defies logic. I'm certainly going to require more than an eyewitness's "yeah he looked pretty scared".

    Of course, this is how juries get filled with middle-aged white ladies. Tabula rasa.

  14. Steven H. says:

    Different Jess :
    " That any situation could have caused this grown-ass man to fear for his life from the fists of a skinny, much smaller high-schooler, defies logic."

    And here I thought the high-schooler was rather larger than the adult in this case.
    Or were you fooled by all the five-six year old pictures of Martin that were attached to every news article about this case?

  15. Roscoe says:

    It isn't just this case. I had the experience of being counsel in a case that had a lot of media attention. The reporters would sit in court all day. Afterwards they would ask me questions that indicated that they had no frigging idea what had been taking place that day.

  16. Delvan Neville says:

    Steven H.: Perhaps you were fooled by http://www.snopes.com/photos/politics/martin.asp ? 5'11" and 158 lbs are what is reported in his autopsy (which I can't link directly without getting caught in the spam filter, but Tampa Bay times reported on it) . Sounds like skinny high-schooler to me.

  17. Black Betty says:

    OMG. I have been watching this case (I observe a variety of cases) and the comments on one site are just astonishing. People actually think that because Zimmerman had a gun, it automatically proves guilt. And many of these people think the prosecution is doing well.

    I have to admit, that when this case first came to light, I had questions about the way it was handled and it seemed that manslaughter might have occurred. At this point, I am disgusted that charges were even brought. The prosecutorial abuse that has occurred in this case is reminiscent of the Duke Lacrosse episode.

    And that the prosecution would interview a witness in the house of the decedent's mother while she was sitting in the room crying, with the family lawyer on the premises is outrageous.

  18. Linus says:

    NPR could have dug up a retired Soviet judge from the Brezhnev era to cover this trial, and given him an undergraduate Russian major as a translator, and their listeners would be better informed than they are today This is actually a FANTASTIC idea. I would pay to watch this program.

  19. a_random_guy says:

    "that the prosecution would interview a witness in the house of the decedent's mother while she was sitting in the room crying, with the family lawyer on the premises is outrageous"

    This seems to be part and parcel of jury trials: If you can't prove the facts, try to sway the jury emotionally. Disgusting tactic, but it has probably always been this way. What may be "modern" is judges allowing it to happen in such an egregious fashion.

  20. James Pollock says:

    Without "stand your ground", normally the aggressor in a confrontation is required to attempt to retreat before using deadly force in self-defense. In other words, if you go looking for a fight, and find more than you expected/can handle, you don't get to proceed to ending the fight with deadly force (the "no fair! He hit me back!" rule).
    I'm amazed that you can pursue someone, provoke a confrontation, and then claim "I was afraid for my life". A guy who was afraid for his life stays in his car, or his home.

  21. Erik says:

    James, I find "provoked a confrontation" to be ambiguous, and you seem to assume that Zimmerman went looking for a fight while being afraid for his life. It's also possible that Zimmerman initiated a conversation, Martin escalated to what I'd call a confrontation, and then Zimmerman became afraid for his life.

  22. Anony Mouse says:

    Seems fleeing for your life is rather difficult when you're on the ground with someone sitting atop you, pounding your head into the ground.

  23. Rob says:

    5'11" and 158 lbs are what is reported in his autopsy (which I can't link directly without getting caught in the spam filter, but Tampa Bay times reported on it) . Sounds like skinny high-schooler to me.

    I had a friend in highschool who was almost the exact same size, and had a similar build (from what I can tell in the photos of TM).

    At 17 I'm willing to bet he could have kicked the ass of just about everyone posting here. Hell, I was much larger than he was at that age (220+) and, on paper, much stronger (I don't think his bench ever got over 205, where I was pushing 260), and he'd have whooped my ass pretty damn good, because I was (and still am) a big damn teddy bear who has never really been in a fight. My friend, on the other hand, was a bit of a scrapper.

    In a street fight, size matters a lot less than most people think. What matters is skill, speed and attitude. Size only comes into it if both fighters are anywhere near each other in terms of competence.

  24. Tarrou says:

    A lot of people seem to have made up their mind prematurely on this one.

    @ Jess…."No way he walks"? Really? There's no evidence that could make you acquit of 2 degree murder? What you are claiming seems to be that no adult male has any right to be scared if an average-sized male a couple years younger straddles his chest and beats the shit out of him. No offense, but somehow I don't think your "scraps" must have amounted to much if that's how you think. Fists kill more people every year than AR15s in this country. Anyone who has been in an actual fight, not just a playground "scrap" can tell you how deadly they can be. And if you don't believe me, I'm 5'11" and not much over 158. Are you going to let me have a free day because you shouldn't be scared of someone my size? It's the most ludicrous argument. Furthermore, self-defense only requires that you fear grievous bodily harm (correct me if I'm wrong?) and having your head smashed open on the sidewalk most certainly counts there.

  25. Caleb says:

    @ Mark

    Granted the NPR coverage was not just ham-fisted, but whole-roast-hog fisted, but is the above quote true *without* invoking Stand Your Ground?

    Yes. The duty to retreat is separate from the standard one must meet for legitimate self-defense. SYG only tells us when self-defense applies, not what the standard for self-defense is.

    @ James

    Without "stand your ground", normally the aggressor in a confrontation is required to attempt to retreat before using deadly force in self-defense.

    Not true. The aggressor always has the duty to retreat, regardless of SYG. SYG only applies to the innocent agresee. But the aggressor may use reasonable force to repel force disproportionate to his original aggression-subject to retreat requirement. This is true regardless of SYG. Basically, SYG is irrelevant here.

  26. Dan Weber says:

    As someone who followed the Duke Lacrosse case, attempts to compare to it are usually overblown. There was absolutely no physical evidence (where there should be lots) that any possible sexual contacts occurred at the frat house, consensual or otherwise. Whatever ethical have been done by the prosecutor here, there is at least a dead body.

  27. The same thing occurred to me. Why is it self defense when Zimmerman uses a gun, but not when Martin uses his fists?

    Because Zimmerman's on trial. Martin is not.

    This post has no opinion on what actually happened that night. This post is about the State's burden of proof, and journalistic malpractice.

  28. Mark - Lord of the Albino Squirrels says:

    @Caleb

    "The duty to retreat is separate from the standard one must meet for legitimate self-defense. SYG only tells us when self-defense applies, not what the standard for self-defense is."

    I think I finally found the relevant statue (copy pasted from Florida's "Online Sunshine" site)

    "Title XLVI
    CRIMES
    Chapter 776
    JUSTIFIABLE USE OF FORCE
    View Entire Chapter
    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."

    I agree that SYG only tells us when self defense applies. That said, I do not see how duty to retreat can be said to be separate from the standard for what legitimate self defense is.

    From the above, it looks like duty to retreat *is* separate when the act of self defense does not include deadly force, but is definitely not separate when the act of self defense *does* include deadly force. Otherwise, why provide instruction specific circumstances for when duty to retreat is not required?
    Maybe we are talking past each other, but it seems like one could say that duty to retreat is either separate or not separate from defining what legitimate self defense is depending on the exact act of self defense.

    Finally, I should note that according to the site, the section I quoted above is from a 2012 statute so I am not sure if it was the same law that applied in February 2012 when Zimmerman shot Martin.

  29. Chris says:

    If George Zimmerman intended to murder Martin why confront him? Why not just shoot him from 20 feet away?

  30. James Pollock says:

    "It's also possible that Zimmerman initiated a conversation"
    It's possible that Zimmerman wasn't confrontational, but not very likely, based on his conversations with others at the time.

    "Seems fleeing for your life is rather difficult when you're on the ground with someone sitting atop you, pounding your head into the ground."
    So's drawing and using a weapon accurately.

    "What you are claiming seems to be that no adult male has any right to be scared if an average-sized male a couple years younger straddles his chest and beats the shit out of him."
    Depends… are you getting the shit beat out of you because of a fight you started? (i.e., this sequence: I started the fight because I thought I could kick his ass. When it turned out that the butt being kicked was mine, I was afraid, so I had to shoot him.) The legal concept you're looking for is "unclean hands".

    "self-defense only requires that you fear grievous bodily harm (correct me if I'm wrong?) and having your head smashed open on the sidewalk most certainly counts"
    If you start a fight, you accept the risk that you're going to lose it. The legal concept for this one is "coming to the risk".

  31. James Pollock says:

    Consider this analogy.
    Following a traffic dispute of some kind, A follows B home and confronts B in the driveway. The dispute escalates. B demands that A leave his property; A continues to press his side of the dispute. B decides to use force to eject the trespasser, physically pushing A off the driveway into the street. A, fearing for his life, shoots B dead.

    Is the use of a self-defense defense valid because A had reason to fear for his life, or invalid because the use of force against him was righteous? Does it matter whether or not A's original complaint was righeous?

  32. En Passant says:

    James Pollock wrote Jun 29, 2013 @7:08 am:

    The legal concept you're looking for is "unclean hands".

    Unclean hands might be an defense for Martin if Zimmerman were seeking equitable remedies against him in a tort or contract dispute based upon some set of facts that my poor imagination can't even conjure.

    If you start a fight, you accept the risk that you're going to lose it. The legal concept for this one is "coming to the risk".

    This appears to conflate the assumption of risk defense in tort law with the doctrine of coming to the nuisance which prevents equitable relief in some nuisance torts.

    But in the murder case against Zimmerman, the law and the issues are different.

    First, can Zimmerman raise self-defense?

    Second, what burden of proof Zimmerman carries to demonstrate self-defense, or what burden of proof the state carries to disprove self-defense.

    Patrick Non-White has outlined how FL law handles these issues in the OP.

  33. C. S. P. Schofield says:

    "serious press like NPR"

    *snort*

    SERIOUS?!?!?!?

    NPR is a government organ, set up to provide "unbiased" news. As such it is, at its very base, an absurdity and a fraud.

  34. Mike says:

    @ Chris "If George Zimmerman intended to murder Martin why confront him? Why not just shoot him from 20 feet away?"

    Zimmerman isn't charged with first degree murder, he's charged with second degree murder. So no premeditation required.

  35. AlphaCentauri says:

    @C. S. P. Schofield: NPR actually is not a government agency. It is funded mainly from private sponsorships and by the fees paid by local stations that run its programs. Those local stations get about 15% of their income from government programs like Corporation for Public Broadcasting, but it is then up to their local boards which NPR programs they wish to run, or whether they just want to play music. (There are three public radio stations in Philadelphia, for instance, and they all get about 2 minutes of national news from NPR each half-hour. They each provide their own local news coverage. Only one of them runs the other NPR news programs like Morning Edition and All Things Considered — the others are primarily music stations.)

    The content of NPR is going to be influenced by what local stations want, and the local stations are going to be influenced by the interests of people who feel an alternative source of news is something worth paying for.

    In this case, the reporter was Greg Allen, who is a reporter who covers general news in Miami. It probably would have been much better if he'd run it past Nina Totenberg, who has a lot more experience covering legal issues, but may have been busy with the Supreme Court this week.

  36. James Pollock says:

    Would your support for Zimmerman be the same if, instead of following a young black man around the neighborhood, he'd been following a young white woman?

  37. Ben says:

    I have always been curious: for a high enough profile case, how is it possible to find members for a jury that have not encountered media coverage (and any factual errors that might introduce)? When I got called for jury duty they tried to make certain we had no relation to the defendant and had not read anything about the crime or case against him in the media.

    Even if you don't scour the newspaper (or read the newspaper at all) you are still going to have heard someone (who you presumably have some sort of opinion of, positive or negative) discussing/repeating/promulgating that data.

  38. Amiable Dorsai says:

    James Pollock @ 10:26:

    That would depend on whether or not I thought it was credible that the young white woman was attempting to bash Zimmerman's head in with a sidewalk and that Zimmerman could reasonably conclude that she might succeed.

    I don't actually support Zimmerman–for all I know, he started the fight–but I have doubts about his guilt that I consider reasonable. If I were on the jury and had to vote based on what I know right now, I'd have to vote not guilty.

  39. Longcat says:

    I think there's some confusion as to the terminology here. I can start an argument with someone (like asking why they're wandering in my neighborhood, for example) and still maintain my right to self defense if the other person escalates the argument into a fight. The aggressor starts the fight, not the conversation leading to the fight.

    It's almost as though the law thinks that talking should be legal and violence should be illegal.

  40. Not Sure says:

    "I have always been curious: for a high enough profile case, how is it possible to find members for a jury that have not encountered media coverage (and any factual errors that might introduce)?"

    Mark Twain wrote of this 150 years ago:

    I remember one of those sorrowful farces, in Virginia, which we call a jury trial. A noted desperado killed Mr. B., a good citizen, in the most wanton and cold-blooded way. Of course the papers were full of it, and all men capable of reading, read about it. And of course all men not deaf and dumb and idiotic, talked about it. A jury-list was made out, and Mr. B. L., a prominent banker and a valued citizen, was questioned precisely as he would have been questioned in any court in America:

    "Have you heard of this homicide?"
    "Yes."
    "Have you held conversations upon the subject?"
    "Yes."
    "Have you formed or expressed opinions about it?"
    "Yes."
    "Have you read the newspaper accounts of it?"
    "Yes."
    "We do not want you."

    A minister, intelligent, esteemed, and greatly respected; a merchant of high character and known probity; a mining superintendent of intelligence and unblemished reputation; a quartz mill owner of excellent standing, were all questioned in the same way, and all set aside. Each said the public talk and the newspaper reports had not so biased his mind but that sworn testimony would overthrow his previously formed opinions and enable him to render a verdict without prejudice and in accordance with the facts. But of course such men could not be trusted with the case. Ignoramuses alone could mete out unsullied justice.

    When the peremptory challenges were all exhausted, a jury of twelve men was impaneled–a jury who swore they had neither heard, read, talked about nor expressed an opinion concerning a murder which the very cattle in the corrals, the Indians in the sage-brush and the stones in the streets were cognizant of! It was a jury composed of two desperadoes, two low beer-house politicians, three bar-keepers, two ranchmen who could not read, and three dull, stupid, human donkeys! It actually came out afterward, that one of these latter thought that incest and arson were the same thing.

    The verdict rendered by this jury was, Not Guilty. What else could one expect?

    The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury.

    The rest is here… http://www.classicreader.com/book/1407/49/

  41. Caleb says:

    @ Mark

    That said, I do not see how duty to retreat can be said to be separate from the standard for what legitimate self defense is.

    Because "standard" in the legal world refers to an objective measure of the thing governed. In this case, it is a "reasonableness" standard where force can only be met with proportionate force. There are other standards, for example: strict liability.

    This standard can exist independently of the duty to retreat. For example, my action of pulling a gun on someone only verbally threatening me would violate the standard whether or not I have a duty to retreat (and whether or not I fulfilled that duty).

    Self-defense is composed of many parts. The standard is one, duty to retreat another, ect. My point is that they are separate considerations.

    Otherwise, why provide instruction specific circumstances for when duty to retreat is not required?

    Because in common law there is a duty to retreat when using deadly force in self-defense. This is a statutory repudiation of that requirement.

    Maybe we are talking past each other, but it seems like one could say that duty to retreat is either separate or not separate from defining what legitimate self defense is depending on the exact act of self defense.

    Not really. Duty to retreat is a preliminary question. If I have a duty to retreat and do not fulfill that duty, then I cannot access the defense. No matter how reasonable my actions were.

  42. James Pollock says:

    "I can start an argument with someone (like asking why they're wandering in my neighborhood, for example) and still maintain my right to self defense if the other person escalates the argument into a fight."
    If, as a private citizen, you attempt to detain them for questioning, you're liable for false imprisonment tort. Use of force to escape false imprisonment is generally authorized by law. And Mr. Zimmerman's communications immediately prior to the "conversation" with Mr. Martin suggest A) that he was confrontational, and B) that he intended to detain the "suspect" until the police arrived.

  43. Mark - Lord of the Albino Squirrels says:

    @Caleb

    I think we really were talking past each other. Here is what I mean:

    "Self-defense is composed of many parts. The standard is one, duty to retreat another, ect. My point is that they are separate considerations."

    I was using separate in the sense of not connected, where it looks like you are using separate in the sense of separable and distinct. For my sense, the above quote makes no sense (how can something separate from something be part of the same something), but in the separable and distinct sense it does it does make sense.

    I do apologize, I am not a lawyer. Perhaps separate in the legal sense, "separate" usually carries the sense you used and not the sense of disconnected. Now that I know that you intended separable and distinct, I understand what you are saying and agree.

    And thank you for the exposition on the ordering on which DTR, standard, etc. are considered in court. It's useful knowledge to have.

    Consider one average American slightly less confused.

  44. Mark - Lord of the Albino Squirrels says:

    Boy, that was way too much use of the word sense….

  45. Tarrou says:

    @ James Pollock

    Your replies all rely on the assumption that Z "started" the fight. While this is absolutely possible, it is not at all established, and the only person who could have testified to it is dead, as Z is unlikely to incriminate himself like that.

    We just don't know what happened, and I don't think we ever will. Perhaps Z rolled up like a boss, slapped M around a little, provoked a response, then shot him, pulled the corpse on top of himself, and bashed his own head open on the sidewalk after breaking his own nose. I don't think that's the likeliest scenario, but it's possible. In that case, if that could be proved, then sure, you can get to Murder 2.

    Alternate scenario, Z verbally accosts M, M attacks unexpectedly, lands the first shot, lays Z out, climbs aboard for the beat-down (explains his knuckles and Z's injuries), Z pulls his gun and shoots him. In this case, I don't think you can reasonably accuse Z of "starting" a fight, and whatever the poor judgment on Z's part, it's not murder.

    As I said earlier, people have their minds made up and they are looking for a scenario to justify it. Pro-M like the first scenario, pro-Z like the second. My point is that we don't know, so proceeding as if rampant speculation is established fact is a pretty poor way of advancing an argument.

  46. James Pollock says:

    You left out the "second gunman" theories, Tarrou.

    All we know for certain is that one guy brought a bag of Skittles to a gun fight.

    The prosecution has to prove that Zimmerman intentionally shot Martin, and Martin died as a result. I think they can do that. Zimmerman's defense team has to prove that Martin attacked Zimmerman without provocation, that it was reasonable for Zimmerman to have shot him to protect himself. I don't think they can do this.

  47. gramps says:

    Since Twain has been opened, here is one quite to Patrick's point:
    "If you do not read the newspspers you ar uninformed; if you do read the you are Misinformed". Some things just never change.

    These comments are sound evidence that many actually believe what they are told by the MSM– ABC, NBC, CBS, NPR, etc…

    It is so easy to find a blog or other source where you can actually see the witness testimony… live, or via stored video. It only takes such viewing of direct information and comparing it to the broadcast news to see how things got the way they are. This misinformation is not limited to coverage of murder trials….

  48. gramps says:

    Mr Pollock: both of your points have been established; by Zimmerman. What is now in dispute are the circumstances surrounding the event. Not all killings are murder, regardless of degree.

    You really should familiarize yourself with the law (LAW) involved with killings, murder, self-defense, etc. State-of-mind of the participants is very significant in these matters. Yesterday a witness named Good described what he saw, and a witness, medical person who treated Zimmerman's injuries, described them and their severity. Go back and watch that testimony… not the MSM distillation of it, the actual video.

  49. James Pollock says:

    "You really should familiarize yourself with the law (LAW) involved with killings, murder, self-defense, etc."
    Would passing the bar exam be sufficient evidence for you that I have done such familiarization with the law (LAW)?

  50. RB says:

    "…serious press like NPR…"

    Surely, words uttered by no one at no time.

  51. Delvan Neville says:

    And remember, law (LAW) is the law (LAW).

  52. Grifter says:

    James Pollock:

    "Zimmerman's defense team has to prove that Martin attacked Zimmerman without provocation"

    I believe that is not the case. In fact, I believe it is the prosecution's burden to establish that Z provoked M.

    As Patrick said,

    "In actuality, all a defendant needs to do in Florida is to introduce competent evidence that he was confronted by force sufficient to make a reasonable man fear for his safety. Then the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant did not act in self-defense."

  53. wumpus says:

    "Second, and more importantly, the reason George Zimmerman does not need to prove that he did not murder Trayvon Martin is because ALL CIVILIZED JUSTICE SYSTEMS FROM AT LEAST THE TIME OF ROME have placed the burden of proof on the prosecution"

    While this is certainly true, Zimmerman was found over the victim with a smoking gun in his hand. I'm sure I would have heard if the defense suggested some unknown assailant had gunned down Martin and Zimmerman's shots were directed toward this second gunman.

    I'd be more interested in understanding why the burden of proving self defense still lies in an armed man confronting an unarmed victim.

  54. wumpus says:

    Two quick questions that gets lost in all the Zimmerman noise:

    1. In high profile cases, is there any chance that the side (especially if that means the legal counsel) that talks the media the most actually winning? My simple rule is to look to see if anyone has a big mouth, and assume that side is losing.

    2. I've assumed that this was the defense in this case (although it may have been mostly involving the money raising shenanigans).

  55. James Pollock says:

    "My simple rule is to look to see if anyone has a big mouth, and assume that side is losing."
    I don't know if this is true. For example, as election time approaches, there is an increased likelihood that a person who is, or may be, in a contested electoral position will take any opportunity to talk to media. I can also see where a defense lawyer would want to avoid the "you got off on a technicality" outcome, where the public believes the defendant was guilty and acts accordingly even after an acquittal (See, e.g., Simpson, Orenthal James or Anthony, Casey Marie)

  56. James Pollock says:

    "I believe that is not the case. In fact, I believe it is the prosecution's burden to establish that Z provoked M."
    Could be. One of the challenges in evaluating the case is the fact that Florida altered the common-law rules concerning self-defense defenses, and the questions raised might not be settled until an appeals court identifies and articulates the rules.

    Typically, however, self-defense is not available, as a matter of law, to the aggressor in a confrontation. Since the defense has the burden of establishing that it is entitled to the affirmative defense, establishing that the defendant is not the aggressor would be a burden on the defense. I'll freely admit that I haven't done any research to see if "stand your ground" has procedural effects as well as substantive ones, in Florida or elsewhere.

  57. I can't read "stand your ground" without hearing it in the voice of the gatekeeper in The Princess Bride.

  58. Hayden says:

    @Graham

    When did you last see a journalist or talking head say "oops…that issue I wrote or talked about last month? i was talking nonsense"?

    The most recent instance that comes to my mind is the following.

    http://www.thisamericanlife.org/blog/2012/03/retracting-mr-daisey-and-the-apple-factory

    Not only did they retract their earlier story, they went back and did a show about journalistic integrity and how they failed at it. If you think NPR's report was inaccurate, contact them about it. Let them know what their error was and see how they respond.

  59. T says:

    Mr. Pollock,

    I am not a lawyer and all the standard disclaimers that go with that, but my understanding of the law is different from yours. While it is true that self defense is not always available to the aggressor as a defense, it is not universally true (for example, see Florida statute 776.041). Even were it e case, my understanding is that all the defense needs to do to use the affirmative defense of "self defense" is to establish that the conditions were such that a reasonable person in the same situation would have feared for their life. It is still the states responsibility to prove that while such conditions existed, the defender was the aggressor and that their aggression does not allow them to claim self defense.

    Broken down, my understanding of this is as follows:

    There is a dead body, state brings charges against Person A asserting that they killed person B unlawfully. At this point the states burden of proof is to prove that A killed B.

    A claims self defense. In doing so, A has to admit to the killing of B (is is the affirmative part of the defense, affirming the prosecutions charge, and the prosecution no longer has to prove that A did it in the first place) and then has to provide evidence that a reasonable person in A's scenario would have been afraid for their life.

    At this point, A is still presumed innocent until proven guilty, which means the state now has to prove, rather than that A killed B, that A did not act lawfully within the bounds of self defense. Any of you real lawyers feel free to correct me, but this was always my understanding of how this works.

    My understanding is also that the aggressor can change. For example, while one might argue that Zimmerman chasing after Martin was an aggressive act, it is clear from the original non emergency call that Martin had escaped, thus removing the aggression and threat. This is why it's important who initiated the physical confrontation, because if as Zimmerman claims, Martin came back, then Martin is now the aggressor. This is also a reason why any self defense instructor worth their salt will tell you the best thing to do, even if you're legally allowed to defend yourself is to try to get the heck out of dodge, because self defense is murky as hell and in addition to the physical danger, it's legally dangerous to defend yourself, even when you're right.

  60. Robert says:

    This whole case is disgusting, and Mr. Martin's family and supporters are the worst kind of disgusting, and the media reporting on all this is disgusting.

    I also don't know why the items Mr. Martin had on his person–including digital data on his phone and his electronic communications from that day aren't relevant to determining his mental state.

  61. James Pollock says:

    " Mr. Martin's family … are the worst kind of disgusting"
    Their son was killed and you're mad at THEM?

  62. Shane says:

    I will probably be beaten senseless for this, but just to help non gun owners understand why physical confrontations are dangerous for gun owners.

    When you carry a gun concealed if you get into any sort of physical confrontation your previously concealed weapon will certainly be revealed. This changes the fight immediately and dramatically. If you as a gun owner lose your senses or even your consciousness then you now likely face your own gun, which will very possibly be life threatening.

    I will address two common responses. I know there are many but these are the thinking mans responses usually.

    1) If you didn't have a gun it wouldn't have been and issue. Correct, but the problem with low probability events is that if you are not prepared for them then you will be in trouble. Think of it this way, many police officers leave their body armor in their cruisers, and they say if they need it they will get it (from the trunk of their cars) … right. I don't disable my airbags (not that I can but if I could), cause truth be told I don't know when I might have an accident. On a side note just because I have airbags in my car doesn't mean I drive like an asshole and look to have accidents.

    2) You are armed and the person is unarmed. The problem with this one is called historical bias. When we look back at the events we assume that we could have known all of the factors. I do not know if another person is armed (armed with gun, knife billy club brass knuckles etc …). And if that person is coming at me fast for w/e reason, am I to wait to try to determine their level of armedness? In violent conflict people will only attack under two conditions one, they are cornered or feel cornered, two they feel that they have superior force. If you have not cornered someone and they are about to attack you can be assured that they feel that they can beat you and not just beat you but do it without being hurt themselves.

    Hope this helps a little.

  63. Dan Weber says:

    Almost all of this case revolves around the law.

    It's been super hard to actually understand the law. I might have understood it at one point, but the amount of bull-chaff that has filled the air has completely destroyed that.

  64. Out of curiosity: assuming (for the sake of argument) that it could be established whether Z pulled his gun before or after M attacked, would it make any difference to the case?

    Somewhat related: what baffles me slightly about SYG is that it *sounds* as if, given a hypothetical case with undisputed facts that could be consistent with what we know about the Z case, neither party could be in the wrong but one or both could wind up dead. I strongly suspect that this is because I'm misunderstanding SYG. :-)

    I'm removed enough from the case to still be more baffled than outraged in either direction. I do think it's sad that Z didn't stay on the phone to the police, and that M didn't call the police. It seems to me that this would have made escalation less likely, and even if it didn't, at least we'd have a complete audio recording.

  65. @Shane: I'll just add a third, for the record: if you neither had *nor needed* a gun, it wouldn't have been an issue. Granted, this isn't in general something you have control over as an individual, but it's a consideration that might be taken into account when discussing gun control.

  66. James Pollock says:

    "In violent conflict people will only attack under two conditions one, they are cornered or feel cornered, two they feel that they have superior force."
    People also attack if they are enraged enough to not be thinking clearly. Adrenaline will make you stronger, faster, and able to react faster, but it completely blows away your ability to plan or reason. This is why soldiers, policemen, firefighters, and others who might be expected to act in a high-adrenaline situation train, train, and train some more… when adrenaline starts to affect their higher brain function, the repetitive drill will take over. This is one of the reasons policemen and firefighters prefer that the untrained and inexperienced not attempt to do their jobs… not because they're inherently hard to do, but because they're hard to do under the influence of adrenaline.

    Adrenaline PLUS a deadly weapon is a very dangerous combination. I think it, plus bad judgment from the start, is the cause of this tragedy.

  67. Grifter says:

    @James Pollock:

    Were you disagreeing with Patrick, or were you saying I might be misinterpreting him?

  68. Tarrou says:

    @ James Pollock

    I'm confused by what you seem to be assuming as "starting" a fight. Legally speaking, I was not aware that any interaction which leads to a fight obviates a self-defense claim. For instance, to make a ludicrous situation, if I say to a random person "do you have any gum?" and he thinks I said "I shagged your mum" and attacks me, have I started a fight, with no right to defense? Or is it a stage thing, whereby whoever initiates physical violence is the "starter"? Or am I just off base?

  69. marco73 says:

    Not media criticism, but media commentary.
    The local urban Tampa newspapers, generally with a readership that tends towards inner city minorities, is covering this trial from a minority perspective.
    Amazingly, they've been pretty fair in their coverage, noting how some of the witnesses for the prosecution have been backing up Zimmerman's side of the story. "Stand your ground" isn't even on their radar: that whole line was dismissed months ago. Inner city folk are armed, and totally ready to defend themselves and their property.
    Some of the editorials still write about Trayvon as a "child", and they've been pretty harsh in their criticism of the cross-examination of "Sister" Dee Dee.
    White on black crime is pretty rare here, so that's why the case over in Orlando has gotten so much attention. Now black on black crime, that's the real story missing from the press. The inside of the urban press contains story after story of beatings, rapes, and robberies that, if they happened with such frequency in a white neighborhood, would warrant bringing in the National Guard.

  70. Wow, tell me what you really think. Love your post and so much of what you say is true and to the point. Our media and TV distort and misstate the law constantly. Thanks for the honesty and breath of fresh air.

  71. VMS says:

    I am not an expert on Florida law, but in the jurisdictions that I am familiar with, self defense (a subspecies of justification) is NOT an affirmative defense, but rather a defense. I suspect Florida law is the same on this issue. Affirmative defenses must be proved by the accused by a preponderance of evidence. So, if a defendant claims lack of mental capacity (an affirmative defense), he must prove that by a preponderance of the evidence. On the other hand, the prosecution must prove each element of the crimes charged AND the absence of the defense of justification beyond a reasonable doubt.

  72. Nate says:

    @Shane: As to gun presence- what responsibility do you bear, as the gun owner, for immediately escalating the life-threateningness of a situation through the presence of your weapon? It seems rather unfair to say that you can shoot me in any altercation we were to get into because YOUR life was threatened because YOU had a gun present. (It does seem reasonable to me to fear for your life knowing a fight over a gun could occur.) I am not a lawyer so I have no idea where the law would stand on this.

  73. Shane says:

    @Nate I always assume that the person that I am dealing with is armed. Honestly you should too. That way things don't escalate out of control.

  74. Mike says:

    One thing to keep in mind – from a legal standpoint, the gun is not special. Using it is a threat of lethal violence, but so are many other things – including bashing someone's head into the sidewalk.

    Put another way, pretty much any time where you would be legally justified in using a gun to defend yourself, you would be legally justified in bashing someone's head open with a rock, stabbing them, or running them over with a car.

    But, any situation where your life is *not* in danger is legally similar as well, and can only be responded to with appropriate levels of force. In general, bare fists in a roughly equal matchup (ie, two men) is not considered lethal force. If, in this particular case, M had simply punched Z, Z would not generally have rights to shoot M. He would have a right to punch him back, spray him with pepper spray, etc.

    The switch to lethal force occurred (assuming something similar to Z's version of events for simplicity) when M bashed his head against the concrete, pinned him and did not desist on cries to stop, and (possibly) started to reach for Z's gun. Two of these in an altercation is certainly cause for lethal force – all three is a clear standard.

    It is all based on escalation. You are allowed to respond to words with words, punches with punches, and lethal force with lethal force. You are not allowed to escalate any of those levels yourself or you generally forfeit your right to self defense.

    One thing to keep in mind – even in states with a "duty to retreat", at the time of the shooting Z was physically unable to retreat, and therefore that standard would not apply. That issue applies more to someone threatening you at a distance with a knife, for example, and you charge or shoot rather than try to run.

  75. AlphaCentauri says:

    @Nate, in the magical world of the NRA, all the good guys have guns and shoot the bad guys who threaten them. None of the good guys ever confronts any other good guy and makes them feel threatened. See how simple it is? If only us stupid liberals would just go buy our guns and pay our NRA dues, crime would stop.

  76. different Jess says:

    @Tarrou: Come at me, bro. I'm not a "fighter", but neither am I afraid of 99% of 5'11" 158-pounders. I know that the 1% is out there lurking in wait for me, but that's part of the reason I typically avoid violent confrontations, whether I'm armed or not. In fact I consider that carrying a firearm imparts an additional responsibility to avoid violence. This is a reason that actual "Neighborhood Watch" volunteers are discouraged from arming themselves. It's true that some "dirty" (I know, there's no such thing) physical attacks can incapacitate much larger opponents, in certain cases. That fact does not alter the responsibility one incurs by arming oneself, or by hassling random members of the general public.

    It isn't reasonable to consider small people to be deadly dangerous, even though an infinitesimal fraction of them have studied kung-fu with Pai-Mei. If Martin were the Florida state pound-for-pound champion of supreme cage match fighting, we might consider him a reasonable threat to a larger grown man's life. However, in this case we have seen no evidence to show he was anything but an average high-schooler. If I were on the jury, I wouldn't find it reasonable to speculate about Martin's hypothetical super pugilistic powers until I saw some evidence for them.

    (Note: I'm aware that many people feel Martin's race is evidence of something, but those people are stupid racists. I'm not responding to them.)

    And no, an eyewitness's "he was getting his ass kicked" testimony is not such evidence. In a fistfight, punches are thrown. The presence of so many eyewitnesses is actually evidence for the proposition that Zimmerman was not in mortal danger: if he had ever lost consciousness and Martin continued to attack, all the eyewitnesses could simply have pulled him off. (I know at this point you'll respond with "maybe they wouldn't have!" but this makes your argument look even sillier. Read on.)

    This sort of "well he could have been a 5th-degree black-belt " pretense at justification did not used to be the American way, although in recent years that has unfortunately changed. That's why we smart-bomb an entire wedding party in Afghanistan: it could have been a meeting of nothing but AQ top brass. That's why most police departments have SWAT programs: the North Hollywood shooters might be reincarnated in Podunk, Indiana. That's why schoolyard fistfights now result in criminal records for all parties: little Jimmy's parents could sue the school for his broken nose. It is at the root a basic preference for unjust certainty over righteous, serendipitous, random life. The pioneers would not be impressed.

    If one picks a fight, or pesters a law-abiding citizen until he hits one (which is the same thing), and then one gets his ass kicked, one deserved to get his ass kicked, and one should appreciate it. If we legalize the shooting of unarmed teenagers by adult bullies with poor impulse control (I mean, besides police), we can expect to get more such shootings.

  77. Xenocles says:

    @Jess-

    I'm confused. We're supposed to take your assumptions about what a person of a given gender, height, and weight can do as established truth and discard the testimony of people at the scene? I know that eyewitness testimony is often unreliable, but I would think that prejudiced assumptions are even more so.

    You seem to be tapping into the same sort of fallacy that I often see in armed self-defense discussions: the idea that an imbalance of force means that the person who begins the situation with an advantage is never justified in using it. The argument often goes something like: "He had a gun and the other guy was unarmed, so there was never any reason to fear for his life." This is a paradox. If being armed means that you can never use your weapon against an unarmed attacker, the advantage from the weapon is nullified. Likewise with being bigger. I'm 5'7" and 135 pounds soaking wet. How long can I wail on a big guy before he's justified in using force to get me to stop? Do I have to demonstrate that I can throw effective strikes to vulnerable areas (which of course would render him unable to retaliate)? I would say no, my willingness to attack in the first place is all the evidence anyone needs of my dangerous nature. You don't lose the right to self-defense because you have an advantage. You lose it through going on the offensive.

    Maybe all the eyewitnesses could have intervened, but we seem to know with certainty that they did not intervene. Even waiting until unconsciousness to intervene is not really helpful; being knocked unconscious is usually indicative that a traumatic brain injury has occurred. So even if that would have inspired someone to stop the fight with no further injury we're looking at a risk of brain damage or death. But at the end of the day you're saying that the presence of people who showed no sign of intervening proves that there was no danger because they could have intervened. I don't get it.

    By the way, how much pestering justifies throwing a punch? I could see being justifiably angry, but responding with physical force to anything other than actually threatening speech (which may have happened, but there doesn't seem to be any direct evidence of it) is really beyond the pale in my opinion.

  78. AuBricker says:

    Zimmerman is claiming self-defense. It's been a long time, but isn't self-defense an affirmative defense resulting in the burden of proof being shifted to the defendant?

  79. James Pollock says:

    "If, in this particular case, M had simply punched Z, Z would not generally have rights to shoot M. He would have a right to punch him back, spray him with pepper spray"

    Not necessarily. In cases where force is legally authorized, it does not necessarily authorize use of force in response. For example, use of force is authorized to eject a trespasser, but the trespasser doesn't have a right to use of force to remain. The same also for false imprisonment… use of force is authorized to escape, but the captor is not authorized to use force to continue the imprisonment.

    Also, while "bashing the head on the sidewalk" may create justification for use of deadly force, that justification ends when the bashing ends.

  80. James Pollock says:

    "I would say no, my willingness to attack in the first place is all the evidence anyone needs of my dangerous nature."
    So all those America's Funniest Videos of a three-year-old whacking a grown man in the nuts justified a lethal response?

  81. James Pollock says:

    "If one picks a fight, or pesters a law-abiding citizen until he hits one (which is the same thing), and then one gets his ass kicked, one deserved to get his ass kicked"
    True, but incomplete, unless "pesters" means "unlawfully detains".

  82. James Pollock says:

    "The switch to lethal force occurred (assuming something similar to Z's version of events for simplicity) when M bashed his head against the concrete, pinned him and did not desist on cries to stop, and (possibly) started to reach for Z's gun."
    I dispute two of your three. First, getting your head smacked justifies use of deadly force to stop the smacking, it does not justify use of deadly force after the smacking has stopped. Second, "reaching for the gun" does not justify use of deadly force, period. Disarming a foe is NOT the same thing as attempting to use a deadly weapon, and at the point of "reaching", you can't tell them apart.

  83. James Pollock says:

    "I'm confused by what you seem to be assuming as "starting" a fight. Legally speaking, I was not aware that any interaction which leads to a fight obviates a self-defense claim."
    Rhetorically speaking, I was not aware that I had made any such claim.

    Assume a mens rea requirement. Which seems more likely… Martin walking down the street, thinking "I'm going to find a neighborhood watch dude and bash his head on the sidewalk" or Zimmerman saying "I'm going to catch that dude in the hoodie and keep him from getting away before the cops get here"?

    Now, if one of two people has a confrontational intent before an interaction, that suggests to me who "started" the fight that resulted.
    (You can start a fight by throwing a punch, and that's probably the more common way by far, but you can also start a fight by trying to detain someone).

  84. Xenocles says:

    Yes James, you can stretch any simplification to breaking. The fact that you went to such an extreme really just supports my actual point, that one apparently able-bodied adult attacking you is all the justification you need to use all the force necessary and available (though perhaps no more than that) to stop him immediately. If his initial attack puts you in a position where deadly force is all you can access, then that means deadly force is what you use.

  85. James Pollock says:

    "my actual point, that one apparently able-bodied adult attacking you is all the justification you need to use all the force necessary and available (though perhaps no more than that)"
    Aside from the point that you can't use more force than is available, there's still the problem that an adult attacking you does NOT justify use of deadly force. An adult attacking you justifies proportionate force (and, in most jurisdictions, requires at least an attempt to retreat first).
    "If his initial attack puts you in a position where deadly force is all you can access, then that means deadly force is what you use."
    Why, Zimmerman could have used perfectly proportionate force. The same weapon used against him (the sidewalk) was available for him to use against Martin. OK, that's specious. How about this one… if an adult throws a rock at me, and I don't have a rock, but I do have a pistol, I guess you'd say that since deadly force is all I can access, that's what I use. Wait, I can do better. His arm is stronger than mine is, so he's able to stand far enough away that although he can throw rocks far enough to hit me, I can't throw them far enough to hit him. But I do have this rifle…

  86. Xenocles says:

    James-

    The first punch might not (probably does not) justify deadly force, but that's not when the defendant claims he used it. If you are on your back with someone straddling you throwing punches at your head then you decidedly do not have the same ability to return proportional force. If you're in that situation you reach for any leverage you can, which includes a gun or knife if that's what you have. You stop the attack with the minimum force required that you can actually deliver. I'm not going to make it more rigorous than that for a blog comment. You know what I mean.

  87. Dan Weber says:

    The questions of fact revolve heavily around what Zimmerman thought.

    A lot of the law works on state of mind. If I take your car intending at the time to keep it from you, it's different if I take your car intending to give it back.

    People who don't encounter the law until Nancy Grace explains it to them may be surprised by this.

  88. James Pollock says:

    "I'm not going to make it more rigorous than that for a blog comment."
    Just as well, because it's still wrong. Use of force, but not deadly force, is authorized to defend a person against a simple assault. Use of deadly force is authorized to protect yourself from deadly force, which being punched in the face is not.
    See Florida statutes 776.012 generally, and 776.041(2).

  89. En Passant says:

    James Pollock wrote Jul 1, 2013 @1:05 pm:

    Use of deadly force is authorized to protect yourself from deadly force, which being punched in the face is not.
    See Florida statutes 776.012 generally, and 776.041(2).

    So, is being punched in the face hard enough to break your nose by someone straddling you and pounding your head into the sidewalk a force deadly enough to justify use of deadly force?

    Or, to put it in terms of the FL statute Sect. 776.041(2)(a), could a person subjected to such force reasonably believe that "he or she is in imminent danger of death or great bodily harm"?

    If not, then please describe the force necessary to make that belief reasonable.

    And would a person subjected to that force have any other "reasonable means to escape such danger"?

    If so, please describe those reasonable means available to escape the danger.

    People need to know these things if they ever visit Florida.

  90. different Jess says:

    @Xenocles: If being armed means that you can never use your weapon against an unarmed attacker, the advantage from the weapon is nullified.

    Here it is, the basic ignorance of law and morality that underlies much of this discussion, in all its glory. It is neither ethical nor lawful to use deadly force except in response to the threat of deadly force. (There are corner cases like preventing kidnapping, but when viewed through the right lens kidnapping is also a crime of deadly force.) Citizens are not police, so they don't carry firearms as "an advantage". They carry firearms so that when they or others are threatened by crimes of deadly force, they can effectively prevent those crimes. When judging whether circumstances meet that requirement, citizens use reason, not fear and not convenience.

    I sympathize with your fear of fisticuffs. In fact, I share it. However, I also realize that shooting an unarmed man is not an ethical response to that fear. Just as escalating a verbal confrontation to a physical one is usually "assault", escalating a physical confrontation to a mortal one is usually "murder". (I could see an argument for manslaughter or the like: to me the real prosecutorial error was in not charging anything, until the stench of that indifference had wafted across the nation.) I'm not claiming that Martin was correct in striking Zimmerman, if that is in fact what happened. He probably should have simply run away, which is often the best response even if one is armed. If Martin had lived, I can certainly imagine him being charged with a crime in connection to this incident: after all he was wearing a hoodie. It is actually quite common for multiple parties to a deadly incident to be in the wrong. We prosecute the survivors. (Actually, many comments here seem to think it's OK for all parties to a deadly incident to be completely innocent: I submit that would be evidence of some gaps in the criminal code.)

    The claim most people seem to be making, which I find highly implausible without additional evidence of Martin's streetfighting prowess, is that Martin's unarmed actions could have amounted to a reasonable threat of deadly force. Since I've actually had a fair number of concussions (shocking, I know) I know that life goes on after one's head has been struck. Since I know the average middle-aged white woman has not had a fair number of concussions, has never been in a fight, has never considered the inaccuracy of eyewitnesses, and watches copious amounts of fear-mongering cable news, I made a snide remark about the jury pool for this case. I don't care if you "take my assumptions". My initial statement was simply that if I were on the jury, I would assume certain facts that are self-evident to me. If this means I'm not giving proper weight to certain testimony to bizarre propositions like "this man was in reasonable fear for his life from a combination of fists and sidewalk, yet he didn't actually have any wounds the next day", then call it jury nullification. As I said, it's the reason that our juries have the memberships they do. If you're capable of independent thought, neither side wants you around.

  91. James Pollock says:

    "So, is being punched in the face hard enough to break your nose by someone straddling you and pounding your head into the sidewalk a force deadly enough to justify use of deadly force?
    Or, to put it in terms of the FL statute Sect. 776.041(2)(a), could a person subjected to such force reasonably believe that "he or she is in imminent danger of death or great bodily harm"?"

    Could they possibly, ever, in the infinite range of all possible occurrences? Yes. But…
    How many people have been killed in fistfights with unarmed persons? (not zero, but not very high)
    And we're back to the point I made earlier, about how adrenaline destroys capacity for higher thought.
    And, again, if you are the agressor, you have to make an attempt to withdraw and communicate that attempt before self-defense is available as a defense (even in Florida).

    "People need to know these things if they ever visit Florida."
    Oh, I'd avoid visiting Florida. Apparently, a substantial portion of the residents believe that they have a right to shoot people they feel don't belong to defend their neighborhoods.

  92. En Passant says:

    James Pollock wrote Jul 1, 2013 @3:08 pm:

    [En Passant asked:]
    Or, to put it in terms of the FL statute Sect. 776.041(2)(a), could a person subjected to such force reasonably believe that "he or she is in imminent danger of death or great bodily harm"?"

    Could they possibly, ever, in the infinite range of all possible occurrences? Yes. But…
    How many people have been killed in fistfights with unarmed persons? (not zero, but not very high)
    And we're back to the point I made earlier, about how adrenaline destroys capacity for higher thought.

    The statute specifies "imminent danger of death or great bodily harm".

    Is a broken nose and anticipation of a fractured skull while having one's head pounded on the sidewalk sufficiently imminent danger of great bodily harm to justify such force?

  93. James Pollock says:

    I couldn't find a definition of "great bodily harm" in a quick Googling of the Florida statutes. However, 784.041(1)b seems to suggest it is roughy as grave an injury as one that causes permanent disability or permanent disfigurement. The same trilogy appears in 827.03(1)a3.

    I found the decision detailing the jury instructions to be given, which also decline to define "great bodily injury".
    http://www.floridasupremecourt.org/decisions/2006/sc05-1621.pdf

    If you use this definition, which I found at lawyers.com (Black's was useless)
    "physical injury suffered by the victim of a violent crime that causes a substantial risk of death, extended loss or impairment of a body part or function, or permanent disfigurement
    : physical injury that is more serious than that ordinarily suffered in a battery"
    Then no, being punched in the face, while still a predicament to be avoided, is not a "great bodily injury".

  94. Xenocles says:

    Well, having known someone who was beaten to death one-on-one in a barfight, I guess I have a different perspective on how fistfights can go and of the propensity of bystanders to intervene after unconsciousness (the attacker, likely high on cocaine at the time, repeatedly kicked him in the head after knocking him out). I'm glad you weathered your injuries well enough, Jess, but I'd give the benefit of the doubt to someone who, when put in the position, objected forcefully to playing the odds – even if he did so more forcefully than the legislature thought he should have.

  95. AlphaCentauri says:

    Has Zimmerman's medical exam been released? If he shot a guy who was straddling him, there's no reason to assume the fact that he was covered with blood means that he was seriously injured.

  96. James Pollock says:

    "Well, having known someone who was beaten to death one-on-one in a barfight, I guess I have a different perspective on how fistfights can go"
    Well, having been in literally hundreds of fistfights (during my formative youth, "Polack jokes" were popular… not that that's an excuse) I can say while some fistfights can be life-threatening, it is probably not reasonable to assume that any one in particular is going to be. Millions of people have been involved in a fistfight; dozens have been killed or maimed as a result.
    I would NOT want to entrust a person under adrenaline-rush to make the assessment of whether or not a a fistfight is likely to be life-threatening.
    The best way to avoid dying (or suffering great bodily injury) in a fistfight remains to avoid being in a fistfight in the first place.

  97. Xenocles says:

    "I would NOT want to entrust a person under adrenaline-rush to make the assessment of whether or not a a fistfight is likely to be life-threatening."

    And yet that is exactly the person who must make the decision every time. That is also the person with the most skin in the game, so to speak. If there were someone who could counsel him in situ it would, by virtue of being able to process reasoned arguments, be not life-threatening.

  98. En Passant says:

    James Pollock wrote Jul 1, 2013 @5:53 pm:

    I couldn't find a definition of "great bodily harm" in a quick Googling of the Florida statutes. However, 784.041(1)b seems to suggest it is roughy as grave an injury as one that causes permanent disability or permanent disfigurement. …
    Then no, being punched in the face, while still a predicament to be avoided, is not a "great bodily injury".

    Except I didn't ask whether being punched in the face constitutes GBI.

    I asked: Is a broken nose and anticipation of a fractured skull while having one's head pounded on the sidewalk sufficiently imminent danger of great bodily harm to justify such force?

    The issue is not whether "being punched in the face" constitutes GBI. The issue is whether a person whose nose has just been broken, and whose head is being pounded into the sidewalk can reasonably believe that he is in imminent danger of GBI.

    If a person reasonably believes he is in imminent danger of GBI, and he "has exhausted every reasonable means to escape such danger", then the statute section you cited, Section 776.041, justifies the use of deadly force.

  99. James Pollock says:

    "Except I didn't ask whether being punched in the face constitutes GBI."

    Except you did.

    "So, is being punched in the face hard enough to break your nose by someone straddling you and pounding your head into the sidewalk a force deadly enough to justify use of deadly force?"

    "The issue is whether a person whose nose has just been broken, and whose head is being pounded into the sidewalk can reasonably believe that he is in imminent danger of GBI."
    And, absent extraordinary circumstances not known to be present here, I think no, it is not reasonable to believe that. That's the question I answered above, in fact. Losing a fistfight almost never results in death or GBI, therefore, it generally isn't reasonable to believe that losing a fistfight will result in death or GBI. Fear of losing the fistfight is entirely reasonable when you are losing a fistfight. Believing that death or maiming will result is unreasonable.

    "If a person reasonably believes he is in imminent danger of GBI, and he "has exhausted every reasonable means to escape such danger", then the statute section you cited, Section 776.041, justifies the use of deadly force."
    And if they don't have a reasonable belief, then it does not. And that's even without pointing out (again) that the defense fails for the aggressor unless there is withdrawal. We generally intend the defense of self-defense to be available only to people who are attacked without provocation; if you went looking for a fight, found one, and then discovered it was more of a fight than you could handle…

  100. James Pollock says:

    (I don't want people under the influence of adrenaline to make decisions about use of deadly force)
    "And yet that is exactly the person who must make the decision every time."
    Not at all. In ideal situations, a trained professional makes that call. In boxing, MMA, etc., decisions about rules are made by neutral referees. In many fights, a decision to escalate to deadly force doesn't arise because it isn't available, so even though all participants are adrenalized, they aren't making decisions about deadly force… although I'm sure a significant portion (above 50%) have at least a moment or two in which they might fantasize about ending the fight with deadly force. When it's cops making the call, they've drilled and drilled to reduce the impact of adrenaline on their decision-making.
    Plus, you can make the decision to avoid making complicated decisions about application of force… avoid conflict by diplomacy or flight, or just don't bring a deadly weapon to a fistfight.

    "That is also the person with the most skin in the game, so to speak."
    I would argue this point, as well. The person with the most skin in the game is the person in whom the bullet(s) become lodged, whether combatant or bystander, not the person pulling the trigger (holding the knife, operating the combat bodysuit, etc.).

    "If there were someone who could counsel him in situ it would, by virtue of being able to process reasoned arguments, be not life-threatening."
    I MOSTLY agree with this one, but… people have been killed in bloodsport, and at least in theory the referee is capable of making reasoned arguments and directing the combatants. Of course, there ARE cases of a fighter being so addled they attacked the ref trying to stop the fight. It doesn't even have to be bloodsport… officials have been attacked breaking up fights in baseball and football (I believe refs in hockey usually wait until the fight is breaking up on its own before stepping (skating?) in to avoid this very problem.) If a person in personal combat can't be reliable counted to to identify the foe from the official(s), how reliably can they apply reasoned legal judgment?

  101. Xenocles says:

    You have got to be shitting me. Please tell me you understand the difference between a street fight and an organized sporting event.

  102. AlphaCentauri says:

    Hockey officials have a policy of not intervening in a fight until there are at least officials present. If one guy tries, he'll either end up bludgeoned himself, or else he'll be in the position of restraining one player while the other keeps whaling on him.

  103. AlphaCentauri says:

    oops, "at least two officials present"

  104. Delvan Neville says:

    There was no pitfighter here, to my understanding. It's very impressive that you have such a bragworthy number of street fights under your belt, but waving the flag about your extensive experience, in my opinion, disqualifies your conclusions about perceptions of danger in a streetfight as being a reasonable conclusion by individuals who lack that experience.

  105. James Pollock says:

    "You have got to be shitting me. Please tell me you understand the difference between a street fight and an organized sporting event."

    Absolutely. In the organized sporting event, you have to check your firearms before beginning. Also, they play the national anthem.

  106. James Pollock says:

    "waving the flag about your extensive experience, in my opinion, disqualifies your conclusions about perceptions of danger in a streetfight as being a reasonable conclusion by individuals who lack that experience."

    Fine, pick anyone you want. The relevant questions are "how many people do you know who've ever been in a fistfight" and "OK, how many of them died or were maimed as a result of the fistfight?"

    With a sufficient sample size, I predict that the answer to the first will average out to several dozen, and the second will hover near zero. While it IS certainly possible to kill someone with your bare hands, this is usually achieved by strangulation.

  107. En Passant says:

    James Pollock wrote Jul 1, 2013 @9:40 pm:

    And, absent extraordinary circumstances not known to be present here, I think no, it is not reasonable to believe that. That's the question I answered above, in fact. Losing a fistfight almost never results in death or GBI, therefore, it generally isn't reasonable to believe that losing a fistfight will result in death or GBI. Fear of losing the fistfight is entirely reasonable when you are losing a fistfight. Believing that death or maiming will result is unreasonable.

    I think that Florida lead State Prosecutor Bernard de la Rionda could use your help as a trial consultant, or perhaps as an expert witness.

  108. James Pollock says:

    "I think that Florida lead State Prosecutor Bernard de la Rionda could use your help as a trial consultant, or perhaps as an expert witness."

    Or we could settle the matter privately. I'd have to ask that you leave your deadly weapons behind, though. I'm pretty sure I wouldn't appreciate your decisions on whether or not their use was justified.

  109. different Jess says:

    Imagine a trial about a fatal car crash allegedly stemming from negligence, in which none of the jurors had ever driven an automobile. Also imagine that none of the Popehat commentariat had ever driven.

    I submit that we'd be reading similar propositions: "Zimmerman reasonably felt that since he had his blinker on he was entitled to swerve into the occupied lane!" "How do you know the dead pedestrian hadn't done something to frighten Zimmerman?" "How can you ignore the eyewitness reports that it was dark that night?"

    Peace.

  110. Arlight says:

    Something I'd like to point out. Everyone keeps calling Martin "an average high school kid" at 5'11", 158 lbs. Zimmerman is/was 5'8", 194lbs. As a comparison, I'm 5'10" and about 195, my 18 yr old is about 5'9" and 150. And my kid is stronger, faster, works out more, hits harder and could take me down if his mind was set to it. He's not a fighter with MMA training, he's an 18 year old kid in good shape that works out sometimes while I'm a 41 yr old computer tech that is out of shape with a bad back. Martin was not some helpless child fighting for his life. In a fistfight, he had a clear advantage over the smaller, fatter, older Zimmerman. This doesn't mean Zimmerman was necessarily justified in shooting him, I'm just tired of the narrative that Martin wasn't a serious threat.

  111. TomB says:

    "With a sufficient sample size, I predict that the answer to the first will average out to several dozen, and the second will hover near zero. While it IS certainly possible to kill someone with your bare hands, this is usually achieved by strangulation."

    Actually the number was 726 in 2011 (FBI UCR). But that included feet also. But the point stands, the number doesn't "hover near zero".

  112. James Pollock says:

    Tom, I question your math skills. If you start with the sample size of EVERYONE IN THE U.S., that's around 300 million (we have to do that if you want to use national figures). If there were 726 people killed in a fistfight, how many people knew each of those 726 people. Let's say 1000 each, and to keep the math simple, let's say that each of those people knew only one of the slain. So 726,000 knew somebody who was killed in a fistfight. 726,000 people who knew someone killed in a fistfight in a population of 300,000,000 gives us an average of 0.0000242. I'd consider that to be "hovering near zero".
    Which of my simplistic assumptions do you think is so wrong as to require recalculation?
    Or are you suggesting that there are a substantial number of people who knew most or even many of the 726?

  113. James Pollock says:

    Wait… was 726 and annual total? Then our number would be bigger. Let's say that our sample size carries 50 years worth of memories, and the 726 is the same for each of those 50 years. That gives us an average of 0.00121. Still hovering.

  114. Shane says:

    @James
    In the organized sporting event, you have to check your firearms before beginning.

    I am thinking your fighting experience comes in the ring not on the street. Is this is the most important difference that you can see? I understand that you may have been trying to shorten for brevity and effect, but that there are no known weapons is probably the least important of differences.

    If any are interested in the difference between the street and the ring, or even how violence happens then this is an excellent site.

  115. TomB says:

    "population of 300,000,000"

    So we are including infants, the elderly and professional baseball players in your "sufficient sample size"? I guess when you're desperate enough, anybody will do.

    BTW, you might want to get in touch with Congress, they're doing much more with "assault rifles" with a lot fewer deaths.

  116. Xenocles says:

    "While it IS certainly possible to kill someone with your bare hands, this is usually achieved by strangulation."

    Yes, if by that you mean the exact opposite. Per the FBI homicide numbers for 2011:
    Personal weapons (hands, feet, pushing, etc.): 728
    Strangulation: 85
    Asphyxiation: 89

    So even if we assume that every asphyxiation is close enough to what you might call a strangulation being beaten or pushed to death is still far more common. That said, either method could result from a fistfight, so this unfounded assertion really adds nothing to your case.

  117. AlphaCentauri says:

    Okay, I'm speaking from complete ignorance, never having shot anyone/anything. But the photos from the time of Zimmerman's arrest show a bloody nose, scratches on the back of his head, and a jacket and shirt that are quite clean in front. If Martin were astride him with his arms reaching forward to punch, and Zimmerman shot him in a part of his body that caused him to die without having a chance to be transported to a hospital, shouldn't there be splattered blood, or even a large stain, on Zimmerman's clothes? I understand that most of the excitement from a gunshot wound is happening at the exit wound, but again, if Martin is on top, the splattering and flowing blood is dripping/raining down, and Zimmerman has to move to body off him to get up off the ground, how does the front of his jacket stay so clean?

  118. Delvan Neville says:

    You figure there are 300 million street fights annually?

    Averaging samples is meaningless. Zimmerman, being one person, has one sample to use, there's nothing to average. Further, we're talking about a specific scenario, you're averaging from every street fight regardless of the situation. How many people does he know that were repeatedly brained with or on concrete? How many of them came out of that without great bodily injury or death? I have serious doubts any of us non-super-street-fighters know enough people to think our estimate of the rate based on only those we know about is statistically significant. Case in point, I know of only one person to be forceably brained on concrete repeatedly, and he came out with permanent brain damage. Would you contend that my estimate of 100% is any more reasonably certain than a 0% from someone else who has only witnessed one instance?

    Of course we're still talking about the scenario that Zimmerman describes, which doesn't jive with witnesses or Alpha's excellent point regarding M's blood, but don't let that stop this firey debate since its certainly still relevant whether Z's own description of the situation justifies shooting who he describes as the aggressor.

  119. Delvan Neville says:

    Oh, and Alpha, there was no exit wound according to the autopsy, the fragments of the round stopped inside M's body.

  120. James Pollock says:

    "So we are including infants, the elderly and professional baseball players in your "sufficient sample size"?"
    I did say "pick anyone you want".

    "I guess when you're desperate enough, anybody will do."
    Did I go to national numbers, or was that you?

  121. James Pollock says:

    "So even if we assume that every asphyxiation is close enough to what you might call a strangulation being beaten or pushed to death is still far more common"
    Yes, I see that I wrote "kill" when I probably should have written "murder". I suspect that the majority of the "hands feet" number of homicides were manslaughters rather than intentional murder. Unfortunately, I've no idea where you got your numbers and insufficient interest in looking for reliable numbers myself, seeing as this is a trivial side topic. You win this point. Hollow victory, though, as this subtracts nothing from my case.

  122. James Pollock says:

    "You figure there are 300 million street fights annually?"
    No. Do you?

    "Averaging samples is meaningless."
    I see. So, my experience is meaningless in determining what is reasonable because I have too darn much of it. Polling is meaningless. Your solution to determine if it's reasonable for Zimmerman to believe he was a risk of death or GBI is to jast ask Zimmerman, and take whatever he says is reasonable?
    That will certainly simplify the trial process for shootings!
    Prosecutor: "Did you shoot him?
    Defendant: "Sure did!"
    Prosecutor: "Why did you shoot him?"
    Defendant: "I was afraid for my life, or possibly great bodily injury."
    Prosecutor: "Do you think that fear was reasonable?"
    Defendant: "I sure do"
    Prosecutor: "Your Honor, motion to dismiss"
    The COURT: "Motion Granted. Next case, and hurry up… for some reason I've got like 100 of these on my docket.
    -fin-

  123. James Pollock says:

    Alpha, bullet wounds don't necessarily bleed as much as Hollywood would have you believe.

  124. Delvan Neville says:

    My argument is I think it is unreasonable to expect someone currently getting repeatedly brained with concrete to have the encyclopedic knowledge of their likelihood of death from a fist fight you argue for, and for them to ignore the specifics of the fight and assume, regardless of circumstances, that they should apply the fatality rate from all kinds of fist fights.

  125. Delvan Neville says:

    I suppose our whole argument is moot anyways. A jury of randomly selected peers is a better measure of what a reasonable perception of danger would be, and either the prosecution or the defense would have kicked veto'd both of us :)

  126. James Pollock says:

    Let me tell you a story about sidewalks impacting heads. Last summer, I was in the bed of my truck, tripped, stumbled over the tailgate, and fell onto the driveway headfirst. I started about 4 feet up, and I'm about 5' 8", so my head came down about 9 feet and had the full weight of my body behind it. Knocked myself out good. Scalp wound left a bloody smear about the size of a tennis ball.

    I wound up going to the emergency room… 3 days later… because my back hurt and wasn't getting better. Moral: Whacking your head on the sidewalk hurts. It can even knock you out. It probably isn't going to kill you. If someone dies on a sidewalk, it's far more likely they were hit with a motor vehicle.

    YMMV.

  127. Delvan Neville says:

    How many times did your head hit the sidewalk? I'm reading once.

  128. Manatee says:

    I hate to derail a man when he's got his self-righteousness on, but as a Floridian myself, I have to say he's only half-right. "Stand Your Ground," referring to the general movement among the states to remove the duty to retreat, isn't the central issue of the case.

    However, many Floridians use the term "Stand Your Ground" to refer to the Protection of Persons/Use of Force Bill of 2005–largely, I think, because many people promoting the bill referred to it as SYG. Just to give you some background, before 2005 we had some serious issues in our self-defense laws. There had been two or three high profile cases where people used deadly force against burglars who broke in at night in the previous years and were convicted of murder. People were rightly upset at a system that would convict a septuagenarian retiree of murder because he used a gun against two burglars who broke into his house late at night, and demanded change to the laws. The Protection of Persons/Use of Force Bill was the solution, and some feel, an over correction.

    The obvious reason we referred to the bill as Stand Your Ground (other than being catchier than The Protection of Persons/Use of Force Bill) is because the bill amended Florida's murder statute to eliminate the duty to retreat. However, the bill made a few other important changes. It made the Castle Doctrine more clear in Florida, establishing a presumption that anyone illegally entering is a threat (probably prompted by the cases I mentioned earlier.)

    Most relevant to the Zimmerman case, the Bill also eliminated criminal and civil penalties for people who used deadly force in legitimate self-defense. This is a great goal. After all, it's kind of unjust if you can shoot an armed robber, but his family can win a wrongful death suit against you afterwards. What some people oppose is how the Bill changed the standard of proof.

    Before The Protection of Persons/Use of Force Bill, Florida was closer to the "wrong" statement Patrick attributed to the NPR reporter: burden on government to prove murder beyond a reasonable doubt, burden on defendant to prove the affirmative defense of self-defense (by the preponderance of the evidence or by clear and convincing evidence, I think.) After the Bill, things shifted. Technically the law called for a hearing where the defendant who could present competent evidence of self-defense could stop any civil or criminal prosecution from ever going to trial.

    In the strictest sense, the NPR journalist seems to be guilty of lazy journalism for calling the law "Stand Your Ground" and not "the amendment of Florida's murder statute in 2005 by The Protection of Persons/Use of Force Bill" (I can't judge for sure since I couldn't find the link to the offending story, and I don't listen to non-Car Talk programs on NPR that much). However, he is absolutely correct that the controversy around the Zimmerman shooting and trial has absolutely everything to do with the changes made by The Protection of Persons/Use of Force Bill. Beyond the statutory changes I mentioned (and several I don't remember as well), the Bill had language basically telling law enforcement agencies to halt investigations once there is competent evidence of self-defense that had a profound effect on the exercise of prosecutorial discretion. Prosecutors became more timid about charging any sympathetic suspect who turned himself in claiming self-defense instead of trying to escape justice. Pre-2005-Bill, Zimmerman would be facing an uphill battle. Post-2005-Bill, I think there's a great argument that the prosecution is violating the law by even bringing the case to trial. So no, Patrick, it has nothing to do with the lack of DTR in Florida. However, it has everything to do with with "Stand Your Ground," what we Floridians perhaps wrongly call the 2005 Bill.

    Many of my friends feel this is great because it applies to everyone the same use of force standards as the police. On the other hand, many of my friends feel that this is horrible because it applies to everyone the same use of force standards as the police.

  129. Manatee says:

    @Delvan,

    That's probably why they have lesser degrees of murder and manslaughter, and why in states other than mine, they apply those charges when, for example
    1) someone subjectively believed he was in danger of grievous bodily harm or death, but no reasonable person would objectively believe the same in the same situation
    2) someone initiated non-lethal force against an innocent defendant, and that defendant unlawfully escalated to lethal force

    I remember from the nice safe abstractions of law school that if you attack someone without provocation with non-lethal force, and he illegally escalates to lethal force, you can then claim self-defense if you use lethal force as well and kill him, meaning you are guilty of nothing more than the original battery/assault. This has never sit well with me to be honest. I don't know if there are any jurisdictions where self-defense is only an incomplete defense (reducing murder to manslaughter.)

    Also, while James Pollock's use of the term unclean hands is misapplying civil common law, as someone else pointed out, I don't think the principle is misapplied. I vaguely remember some self-defense laws being worded to specifically bar use by defendants who were engaged in other criminal activity.

  130. James Pollock says:

    Jury service.
    I lived in Corvallis for 5 years, never got called. My ex-wife got called once for municipal court, and twice to circuit court. I'm thinking about it, and I don't even remember where the courthouse is. I went nearly by whole life without even being summoned to jury service, much less seated.

    It finally happened, and I was called to Washington County Court in Hillsboro. Me and 150 of my closest strangers are there. The clerk comes in, and tells us that we still have to watch the video, but most of us will be sent home, because the county's DA's were all at a conference in another county, and so the circuit court had no trials scheduled. But, there was this one case with a municipal prosecutor… anyone not called for voir dire in that case would be sent home. My number was the first one called, I wound up seated, and then the case went into extra innings because the jury was deadlocked. We didn't get a verdict until very late that night; it was weird being escorted through the mostly-dark building as the deputy unlocked and opened doors to get us out.

    Anyways, not a month after that, I got called for federal jury service in Portland. I went, and this time they didn't even finish playing the "jury service is your civic responsibility and it's totally important and stuff" video. They cut it off midstream, and the judge (in shirtsleeves) told us that the parties had reached a last-minute settlement and the trial was cancelled. I wasn't even late for work.

    And nothing since.

  131. James Pollock says:

    "How many times did your head hit the sidewalk? I'm reading once."
    Probably twice…. once from the initial drop, and then another one of 4-6 inches or so from the bounce, while the rest of my body was on the ground.

  132. Delvan Neville says:

    Still, ouch :(

  133. Manatee says:

    Delvan, I meant to address your point more directly but I derailed myself talking about the Bill 436 (kind of my personal pet peeve when people misuse it or accuse other people of misusing it.)

    Any fist fight is potentially fatal. There is a spot near the heart (I want to say the vagus nerve, but I have minimal textbook anatomy knowledge) that can cause an arrhythmia when struck with enough force. Some Chinese martial arts teach it as a specific target for that very purpose (giving the Five Point Exploding Heart Technique a VERY tenuous basis in reality.) In MMA terms, its a very low percentage technique at best, but it's a real enough risk that preteens playfighting have killed each other that way. There are many more reliable ways to kill someone in unarmed combat, and countless more can cause what I personally consider serious bodily harm. Depending on circumstances, relative size of combatants, environment, and relative position, those risks can go way up or drop to almost nothing. That's probably why I've never been entirely comfortable with the bright line between non-lethal and lethal force.

    We can all agree that a gun pointed at you within range poses a substantial threat of death. It's harder to draw the line when both parties are unarmed. A bouncer twice your weight standing behind you can easily put you into a hold. Whether he intends to murder you or just to restrain you until he calms down can be very hard to tell from the chokee's standpoint until its too late.

    What I find most troubling is the legal fiction that when two people are in a steadily escalating unarmed fight, one of them can suddenly cross the lethal line making it legal for the other guy to draw a knife and stab him. I understand that much like the age of consent, the line must be drawn somewhere, and people can argue ad infinitum that "This non-lethal force is barely any different from this lethal-force" to adjust the line up or down. My issue in this case is both parties can be slowly moving all the way up the force/threat spectrum, only one party is alive to tell how things went down, and the jury then has to not only determine where the line is exactly, but which party crossed that line first, in order to decide whether the survivor goes to jail for murder. To add in more confusion, some states throw in an objective standard: The jury doesn't just have to decide whether Bernie Goetz was in fear for his life, they also need to decide whether a reasonable person should fear imminent death when a bunch of hoodlums who may or may not be concealing shivs asks for money on the subway.

    I firmly believe in the right to legitimate self-defense, and I understand the problems inherent in prosecuting a case that would be "he said, she said," except that she's dead. However, I feel that proving beyond a reasonable doubt that self-defense did not occur is an impossibly high hurdle. In Florida right now, you can tell the judge "He tackled me and could have killed me, and I have this nasty bruise to prove it, and him tackling me had nothing to do with me drawing my gun on him first in order to mug him, which I absolutely did not do," at a pretrial hearing. You can assert self-defense without the you, the sole witness, ever testifying at the trial and subjecting your story to cross-examination, while expecting the prosecution to demonstrate beyond a reasonable doubt that their narrative is right and your narrative didn't happen.

  134. AlphaCentauri says:

    Jury service in Philadelphia is frequent, as in, "Don't complain if it's been at least a year since the last time you were called and that trial didn't last over 3 days." But at least it's one day/one trial, so you don't have to stay more than a day if you're someone attorneys don't want on their jury.

    They used to excuse people who were unlikely to be chosen because of their background or who had jobs in health care that would be considered too "critical" for them to be absent from work. They've stopped that, and since healthcare is one of the biggest industries in Philadelphia, it's radically changed the jury pools. I got called last year and the trial was a malpractice case. The poor plaintiff's attorney was faced with sixty people, most of whom were employed in healthcare or had family members who were, half a dozen of whom felt competent to read MRIs, and none of whom felt they couldn't be impartial and none of whom were trying to be weasel out of being chosen. The next time I got called, we all sat in the room about an hour, then the judge came in and said that when the lawyers had seen the jury pool, they had settled without even seeing who might get seated.

    I suspect they still don't call lawyers, though.

  135. Manatee says:

    I don't understand. Does Philly have a particularly high rate of jury trials or exceptionally large juries, or is the jury pool particularly small (drawing from voter registration instead of drivers' licenses perhaps?)

  136. AlphaCentauri says:

    They have a lot of trials. They send 40 potential jurors to courtrooms when they don't expect difficulty seating a jury, and 60 if they do.

  137. different Jess says:

    How often do they call people for jury duty? Around here it's monthly. I can imagine that if it were every business day, one would be called more often.

  138. Xenocles says:

    @James-

    I see. When you pulled that non-fact from your ass you thought it was significant enough to raise because it helped you, but now that it's been shown to be utterly false it's suddenly a trivial side point. Carry on, then.

  139. Shane says:

    @Alpha

    A gun shot is not as it appears in movies, think more along the lines of being punched by a guy with an ice pick. If the ice pick hits a large vein or artery then there will be lots of blood. If as in the case of T it was a heart shot, then the amount of blood will be minimal.

  140. En Passant says:

    It's not to late to note this. Veteran attorney Andrew Branca, author of Law of Self Defense, has been blogging daily analyses of the Zimmerman trial, including videos of testimony, at the Legal Insurrection blog.

  141. James Pollock says:

    Xenocles, thank you for providing a link to that table. Now I can point out that "blunt objects" account for murders than "personal weapons", so we can finally stop hearing about "bashed on the sidewalk" since that was actually a smaller danger to him than being punched in the face!

    Now, go on to tell me how less than 800 incidents per year out of however many millions of fistfights there are per year indicates that it's reasonable to assume that a fistfight will cause a fatality?

    Then, gee, unknown weapon or weapon not stated accounts for more than "hands, feet, etc.", so if it's reasonable to assume that the fistfight would be fatal, it's even more reasonable to assume the Martin could have killed Zimmerman with his bag of Skittles, right?

  142. Delvan Neville says:

    All fist fights are not created equal.

  143. Delvan Neville says:

    Wait, you're suggesting they would report a curb-stump as "blunt object"? I suppose we can't count fist fights involving shoes or gloves either.

  144. James Pollock says:

    "Wait, you're suggesting they would report a curb-stump as "blunt object"?"
    Admittedly, this comes from TV. They find the dead guy, examine his injuries, and work backwards from there. Having your head bashed in in blunt instrument trauma, whether done by Louisville Slugger or pounding on the ground.

    That brings up another thing, though. Apparently MLB baseball is making things MORE dangerous by insisting that a batter charging the mound drop the bat along the way.

  145. James Pollock says:

    Continuing…

    Although charging the mound is justifiable, as people HAVE been killed by being struck by thrown baseballs, therefore it's reasonable to charge the mound and kill the pitcher to keep him from throwing at you again.

  146. Delvan Neville says:

    Again with the organized sport scenario. You recognize on the street. His friends grab you and pin you to the wall, you can't wrestle your way out nor are you able to dodge his barrage. He proceeds to throw 100+ mph baseballs at your skull. Would you use a weapon to escape if you had one, or simply submit and accept your fate?

  147. Delvan Neville says:

    Oh, right, recognized that as html. That was [insert well known MLB pitcher] on the street.

  148. James Pollock says:

    "you can't wrestle your way out nor are you able to dodge his barrage. He proceeds to throw 100+ mph baseballs at your skull. Would you use a weapon to escape if you had one, or simply submit and accept your fate?"
    I think you made this more complex than you meant to. Use a weapon against whom?
    Against the persons holding me? They're committing a felony (FL Statute 787.02 and use of deadly force to prevent or abate a felony is authorized.
    However, I suspect it's moot, because after I've taken even one fastball from [well-known MLB pitcher] to the noggin, I'm probably out cold.

  149. Delvan Neville says:

    Don't think we're going to get anywhere on this. Have a nice day!

  150. @Delvan, @James, anyone else interested: while understandable in the context of this blog, I'm curious (as a foreigner) that most or all of the debate I've seen here and elsewhere is related the trial itself – applicable law, discussion of the evidence, and so on. There seems to be little discussion about what might be done to reduce the risk of a similar event (or even an event similar to however the person framing the hypothetical discussion thinks happened!) from happening again. For example: Should permit-to-carry licenses require training? If carrying, but not trained, should there be a duty not to place yourself at risk? Should surveillance cameras be reconsidered, given that if they didn't prevent the incident they would have at least reduced uncertainty afterward?

    There was also a particularly scary comment (in an earlier PopeHat thread, IIRC) to the effect that the incident wouldn't have even made the news if it hadn't been picked up by media and others pushing an agenda. However you look at it, there was either a murder/manslaughter (by Z) or an attempted murder (by M) and where I live that couldn't *not* be news.

    Am I just missing out on those discussions, or did they really not happen? If not, shouldn't they have, if only to help reduce/mitigate anger at a probably "not guilty" outcome? Or am I just totally not getting US culture?

  151. @AlphaCentauri: would you ping me please (email available on my blog, linked) if you don't mind discussing this comment of yours from way back when? No big deal, I just find it interesting how differently US and British/NZ culture interpret certain things.

  152. Delvan Neville says:

    Harry: see 2nd amendment, US Constitution. Not a lot of room for productive discussions about the government preventing citizens from keeping or bearing arms, and a lot of controversy around just about every bill that does slip through that adds further restrictions. We're rather touchy about trampling on the Constitution, some more-so than others. Our resolution to firearm-related issues like this are on the law that applies to the situation and when the appropriate use applies rather than attempting to legislatively stop people from having legal firearms.

  153. @Delvan: I can see that requiring training to get a permit-to-carry could be construed to violate the second amendment (although I can't quite imagine that this is what the writers intended, since it makes no sense, but let's not get into that) but I don't see that a duty not to place yourself at risk does? And there must be other possible approaches, the ones I mentioned were just those I came up with after five minutes thought.

    You've also given me the perfect opening to ask another too darned obvious question: why don't gun control proponents ever take the bull by the horns and propose that the constitutional be amended? I mean, if the 18th amendment can be repealed, why not the 2nd? Proposing (and sometimes passing) more and more laws that are blatantly unconstitutional does not seem like a sensible approach, though I'll admit it seems to have been surprisingly successful in some parts of the country.

  154. Delvan Neville says:

    Most states do have required training if you want to carry concealed, actually, though it's not what I'd consider anything especially stellar depending on the state. I don't think Z was open carrying (which is like walking around town in your karate gi), so I'm sure he's been through the FL version.

    As far as bull-by-the-horns: because that will alienate them from the majority of the nation, or what appears to me to be the majority. Politicians don't like to do that. Repealing the 18th is also one appended well after the formation of the nation, whereas the 2nd is within the Bill of Rights: even those poorly educated about the contents of the Constitution consider those to be at the core of our national identity. Case in point when we enlist in the military, we swear to "uphold and defend the Constitution of the United States" rather than to uphold and defend the United States.

    IMO, we're too deep in gun ownership for any attempt to repeal the 2nd to benefit us. Our per-capita firearm numbers are huge, and nothing short of a police state runs any chance of getting the number of firearms present here significantly low enough for a net benefit in violent deaths. There's also a very large portion of our nation that would likely take UP arms against our government were they to attempt to repeal that (I would be conflicted on my own oath to support and defend the Constitution in such a case but would seek non-violent solutions rather than literally jumping the gun)… I don't think it's in our best interest to light that fuse even if there were a majority that would support repealing the 2nd. Our founding fathers were pretty blunt that the 2nd amendment was put there in good part to keep our government in line lest we experience the terms of the previous government they had been through.

  155. Delvan Neville says:

    For Florida's requirements, see Section 790.06(2)(h), Florida Statutes.

  156. Thanks, I thought about saying "more training" or "different training" but guessed (incorrectly, as it turns out!) that there probably wasn't any per se. If the training is already required, though, it makes the question of whether it was appropriate and effective and what changes could or should be made even less controversial.

    I agree (FWIW) with your analysis that even if the 2nd amendment could be repealed such a change would probably be impossible to implement to any good purpose. (I would probably put it as "you can't get there from here".) Outside of the US the subject is still of interest, because of course other nations could adopt the US approach and occasionally it is suggested as desirable.

    I'm not sure about the "majority" question, though your opinion is certainly more likely to be right than mine. What puzzles me is how so many people can be in favour both of gun restrictions and the second amendment at the same time. I probably shouldn't be; the ability of the human mind to hold contradictory opinions simultaneously is well-documented. :-)

  157. Delvan Neville says:

    Based on how its done in Oregon and Arizona, I'd say with some certainty that his actions were already in opposition to his training: no one was in immediate danger, he was on the line with emergency services and ignored them to continue pursuit. But indeed, in the case that he actually didn't do anything against the FL training, that should probably be changed. I highly doubt training was Z's downfall, it was (regardless of how the fight started, which witness testimony is closest to reality) looking for trouble by following M, and beyond the decision to pursue him, doing so close enough to get into a physical engagement.

  158. AlphaCentauri says:

    @Harry Johnson — the most recent data on the Centers for Disease Control website are 2010:
    Assaults involving emergency room care: 2 million
    Murders: 16,259
    Murders by firearm: 11,078
    Successful suicides by firearm (yes, people do have unsuccessful attempts to shoot themselves in the head, mostly by aiming for the temple and blowing out their eyes, or putting the gun under their chins and blowing off their lower jaws): 19,392

    That would have been equivalent to 2,311 murders in one year in New Zealand.

    This one made the national news due to the fact that both parties thought they were acting in self-defense against an aggressive stranger (and possibly a sexual predator, if "creepy" implies the same thing in Florida that it does where I live). It's a situation that any Black person could have found themselves in, and it's a situation that probably never would have happened if Zimmerman didn't know he had a gun in case Martin turned out to really be dangerous.

    But if every murder in the US made the national news, there wouldn't be time for any other news. It's bad enough that most of the local news is about local murders.

  159. James Pollock says:

    I'm not so sure the 2nd amendment is so firm. After all, the 1st amendment starts out "CONGRESS SHALL MAKE NO LAW", which has been found to mean "unless…" in a number of areas. I don't see any reason the 2nd should be less susceptible to time, place and manner restrictions.
    As for amending the constitution to adjust the problem, well… it's really, really hard to do that. A majority of Americans favor some controls on firearms, but not a supermajority, and a majority of Americans ALSO believe that responsible adults should have access to personal weapons. It only take 13 states to block a consitutional amendment, and I'm fairly sure there are at least 13 where a majority of citizens would oppose any reduction in access to weapons.

    That leaves us back where we are. People have a constitutionally-guaranteed right to carry a weapon, but they don't have a right to use them, except in specific circumstances. And people disagree on exactly what circumstances justify use.

    My biggest fear from a not-guilty verdict is not so much the rioting in the streets (I'm far enough away) but the precedent. Joe Stalker is following Susie Exgirlfriend around. When Susie confronts him on it, why, poor Joe is fearful for his safety, so he HAS to shoot her.

  160. @AlphaCentauri: we had 97 homicides in 2010, and admittedly I don't know that they all made the national news – certainly not as headline news. But I'm fairly sure any involving a teenager would have. Obviously national news in a nation the size of the US has to be more selective, that's just a matter of scale. But the guy from the earlier thread made it sound like it shouldn't even have made the city news, which I found more than a little disconcerting.

  161. AlphaCentauri says:

    It depends on who is getting shot and by whom. Killings of prepubertal children and pregnant women are going to get covered. Dead or missing blonde white women are going to get covered. "Black on Black" crime, whether adult, teen or women, is only going to get covered if there is something to make it unusual or some compelling video to show on the news. This killing was only widely covered because every Black parent of a law-abiding teen said, "That could have been my kid," and also because the police did not seem to find any problem with Zimmerman stalking and eventually killing a teen who was minding his own business.

    When I was in grad school, a friend of mine witnessed a fellow emptying a gun into another fellow lying on the sidewalk. My friend was too fearful to come forward as a witness. (This was before cell phones, where he might have felt a responsibility to call the police or an ambulance; he was nowhere near a phone.) The killing didn't even get a one-line mention in the city papers.

  162. AlphaCentauri says:

    Actually, for that matter, the fellow who ran into our quiet, middle-class neighborhood, who was overtaken by a car driven by a man who calmly got out and emptied a gun into him in broad daylight, never got any mention in the press, despite witnesses coming forward and city council people living within a few blocks.

  163. James Pollock says:

    There was a time, probably around two decades ago, that the city I lived in had a real problem with car prowls. It was so severe at its height that police wouldn't even come out to take a report of a car prowl; they faxed you (yeah, that long ago) the form and you filled it out and sent it back in.
    The problem was so bad that one guy interrupted a car prowl, the thief ran away, and the car's owner shot him in the back as he ran. Public opinion ran at least 50:1 in one's guys favor, and it wasn't the dead guy.
    I live in the suburbs now.

  164. AlphaCentauri says:

    I've got family in the suburbs. They've got a ton of problems with burglaries, because the bu

  165. AlphaCentauri says:

    I've got family in the suburbs. They've got a ton of problems with burglaries, because the burglars can get such a nice haul of furs, coin collections, guns, electronics etc. And they actually had some drive-by shootings a few years back when some skin heads drove through gunning for Jews and Asians. The cops told me they don't go into the woods in the park except armed and in groups. It's like the Sherlock Holmes quote about how crime in less populated areas can go on unnoticed.

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