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"Expert" Reports in George Zimmerman Case Disclosed

There are new expert reports from the State in the George Zimmerman case on who was screaming in the 911 call to police made by Witness 11. You can read them here. Shorter version:

I scream,
You scream,
We all scream for ice cream

In the first report, despite the cries on the 911 call being deemed "minimum-to-marginal material for identification purposes", the authors picked 6 "screams" to analyze. It concludes Martin likely made the first two screams and Zimmerman the last two screams. [More...]

Based on the many analyses carried out, the undersigned had to conclude that, while there is evidence to suggest that Mr. Martin made the first two calls/cries (Nos. 1 and 8) and that Mr. Zimmerman made those identified as 14 and 16, none of these conclusions reached the criterion for a match. Neither speaker could be identified as being responsible for the others.

...While the evidence suggests that Mr. Martin produced the first two utterances and Mr. Zimmerman made the last two, the confidence level for these relationships is not very robust.

The report also states that the analysis method used, "aural-percerptual" is "somewhat subjective" and subject to errors. Translation: It's not science.

There's also this:

Data for Mr. Martin. The data for Mr. Martin are similar in extent but different in pattern. Of course, the judgments here are even more difficult to make as they were drawn from a telephone call and, unlike those for Mr. Zimmerman, no reenactment samples were available. In judging Figures 4 and 5 (based also on two separate analyses), it can be noted I) that no judgments were possible for call No. 11 , and data for calls No. 13, 14, and 16 quite clearly demonstrate that he did not make them. (my emphasis.)

The report seems worthless. But even if one accepts it, since Martin is excluded as the person screaming in three of the last four screams the logical conclusion is he wasn't the one crying out for help. The inference I take from this is that Martin may have yelled as he started hitting Zimmerman (the first two cries) but Zimmerman was the one crying out in the rest of the screams, which fits with him being punched in the nose and having his head slammed into the ground.

The second report is so absurd I'm wondering if it wasn't a joke. Parts of it are laugh-out-loud funny.

For example, approximately one second after the start of CALL3, Mr. Zimmerman makes a seemingly religious proclamation, "These shall be." His speech is characterized by the low pitch and exaggerated pitch contour reminiscent of an evangelical preacher or carnival barker.

The statement is challenging for the untrained listener to detect as it occurs simultaneously with Trayvon Martin's loud, high-pitched,
distressed, and tremulous "I'm begging you." and the 911 Dispatcher's "Nine-one-one." Many of Mr. Zimmerman's "side-bar" utterances are subject to such multiple-talker masking effects and to low signal levels.

Where did Reich come from? Turns out, the Washington Post retained him to analyze the call back in 2012 (See, "In Martin case, 45 seconds of debate" The Washington Post May 20, 2012 Sunday.)

In an effort to find out what might be discerned from the crucial 911 call, The Washington Post retained Reich, 67, a former University of Washington professor with a doctorate in speech science who has worked for prosecutors and defense attorneys in hundreds of criminal and civil cases over a period of more than 35 years.

Where many people have heard only vague yells on the recording, Reich said that he has found language. Reich also identified two distinct male voices outside, in the background of the recording - one younger, one older - that he concludes are those of Martin, 17, and Zimmerman, 28.

To familiarize himself with Zimmerman's voice, Reich also listened many times to a recorded call that Zimmerman placed to police minutes earlier that night and that has established much of what is known about the moments leading up to those last 45 seconds:

I could not find a single state or federal court opinion mentioning Alan Reich on Lexis. I did find a few news articles -- all very old. In one, his testimony was excluded in a criminal trial as not passing the Frye test. (It was admitted in a later civil trial involving the defendant.) In another, his testimony was excluded for untimely notice under discovery rules.

Some courts allow this stuff, others don't, whether under Frye, Daubert or a relevancy test. Most telling is the number of courts that have rejected claims of ineffective assistance of counsel based on a defense lawyer's failure to retain a voice identification expert. The opinions recount the techniques and say they are not science and would likely not have been admissible even if the lawyer did retain an expert. Examples: United States v. Gomez, 2011 U.S. Dist. LEXIS 48790, 28-30 (S.D. Tex. May 1, 2011); United States v. Drones, 218 F.3d 496, 503 (5th Cir. 2000.) From Drones:

Voice analysis is not an exact science. To date, the Fifth Circuit has not approved the admission of voice identification expert testimony. See United States v. Angleton, 269 F.Supp.2d 892, (S.D. Tex. 2003) (collecting authorities). The state of the law concerning the admissibility of voice analysis is ambiguous.

A relatively recent case excluding it: State v. Cooke, 914 A.2d 1078, 1095-1096 (Del. Super. Ct. 2007):

FBI examiner, Hirotaka Nakasone, compared three different telephone calls from an unknown or questioned voice, one probably being a 911 call made to the Newark Police (which Cooke's girlfriend has said was made by him) to various known samples of Cooke's voice. The findings he made are: An aural examination of specimen K2 revealed that it was recorded using a different recording channel and it is of poor recording quality. Therefore, no comparisons were conducted using specimen K2.

An aural examination of specimen K3, K4, K5, and K6 revealed that they are not verbatim voice samples of the telephone calls on specimen Q1. Therefore, no comparisons were conducted using specimens K3, K4, K5, or K6.

Speaker identification by the spectrographic method requires that the same words and phrases be compared between the unknown and known speakers. Therefore, voice exemplars should contain the same wording and recording channel used by the unknown speaker.

Voice identification by the spectrographic method is not considered a positive means of speaker identification and the results of such examinations are furnished for investigative guidance only.

The analysis of that objection differs from the other discussion of the scientific or technical evidence. First, based on representations made by the State at the November 1st office conference, this is a newer science. Second, it is a less reliable means of comparison. The quoted portions of the report offer partial confirmation, although like circumstances where fingerprints may not be left, circumstances exist for why voice comparisons cannot be made.

The Court believes Cooke's relevance and reliability objections based on D.R.E. 702 and 401 are well taken as to this evidence.

Nakasone was unable to make any voice comparisons. That may have been due, in part, to the poor quality or inadequacies of the recordings given to him. Coupled with that was the State's refreshingly candid statement at the office conference about the status of this developing science. All of this means even evidence of even seeking voice comparison or identification is inadmissable in this trial. The Court is not ruling on voice identification evidence beyond this trial.

The jurors can listen to the tape and decide for themselves if it was Zimmerman on the tape. Lay witnesses who are familiar with Zimmerman and Martin's voice can probably give their opinion. The first state report is equivocal and a guesstimate. The second is a joke. The court should exclude these expert reports.

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  • An attacker can call for help (5.00 / 1) (#48)
    by SuzieTampa on Tue May 14, 2013 at 09:57:24 PM EST
    The assumption seems to be that the person calling for help was the one being attacked. But that's not necessarily true. TM could have been on top of GZ and still have called for help, if he thought GZ was in the wrong.

    Can Someone Explain... (5.00 / 1) (#69)
    by ScottW714 on Wed May 15, 2013 at 11:58:12 AM EST
    ...what the screams prove.

    To me an attacker could scream just as easily as the person being attacked.  Just seems like they are wasting a lot of time on a piece of evidence that doesn't really prove anything.

    Why would an attacker scream? (none / 0) (#85)
    by jbindc on Wed May 15, 2013 at 02:33:01 PM EST
    Especially (and I haven't listened to it, so I am just speculating) if it is a scream of fright and / or of being attacked?

    Parent
    I don't Know... (5.00 / 1) (#94)
    by ScottW714 on Wed May 15, 2013 at 04:08:42 PM EST
    ...why do arm wrestlers, weightlifters, football players scream in time of great physical exertion.  It's primordial and not not just done when one fears for their life.

    Seems to me that when two people are wrestling for what could be their lives, the scream could come from either party and even if it was strictly from fear, that still doesn't prove anything other than someone was really scared.

    The implication here is if it was GZ, he was in fear for his life, so it validates his story.  And if it was TM he was in fear for his life, which validates what happened.  And it's both, well I don't know, that would pretty much validate my theory.

    Parent

    Your theory makes sense (5.00 / 1) (#98)
    by NYShooter on Wed May 15, 2013 at 04:46:36 PM EST
    I've felt all along that the so-called "screams" could have emanated from either individual (or both) and, for many different reasons. The problem here is that people, based on their wishes, construct a self-serving theory in their minds and then defend it ferociously as if it were fact.


    Parent
    My opinion is fact. (none / 0) (#102)
    by magster on Wed May 15, 2013 at 05:28:35 PM EST
    Always has been. Always will be. Now if people would just freaking pay attention to me.

    Parent
    On the issue of "reasonable doubt" (none / 0) (#87)
    by magster on Wed May 15, 2013 at 03:09:06 PM EST
    the defense has a real gem if it can imply those screams were GZ, and the prosecution needs these experts to try to take it away. The "scream" tapes are huge.

    Parent
    Riddick is in time out (5.00 / 1) (#95)
    by Jeralyn on Wed May 15, 2013 at 04:33:56 PM EST
    Two comments have been deleted for false information and character attacks on Zimmerman. He will be banned if he continues to post.

    FBI (none / 0) (#1)
    by Cylinder on Tue May 14, 2013 at 04:34:20 PM EST
    Nakasone is the same FBI Examiner that analyzed the 911 call in the current case.

    To be fair to the state (none / 0) (#2)
    by cboldt on Tue May 14, 2013 at 04:40:36 PM EST
    I don't think we know that the state planned or intended to call Reich.  What is submitted here is open book discovery - they hired the expert, and they got a report.

    I mention that because the state must know that disclosure of Reich's report puts the state at some significant risk of being ridiculed.  Maybe the state is indifferent to that, and is willing to defend Reich's report in its entirety.  And, if that is the case, then the state deserves all of the ridicule it gets for seriously proffering this garbage.

    The problem for the state (none / 0) (#4)
    by ackbarsays on Tue May 14, 2013 at 04:49:15 PM EST
    is that Reich is the best they've got.  There has simply been a serious lack of evidence in this case that has been markedly favorable to the prosecution.  They're certainly not going to get anywhere with the other voice expert report which is wholly inconclusive, and they're going to have to overcome the FBI, which said that the 911 calls weren't of sufficient quality to make any kind of meaningful analysis.  Add to that the problems with Witness 8 and her lack of credibility, and Tracy Martin's obvious problem regarding his voice identification of his son, and the state has very little to move forward with.

    Parent
    I'm just reserving my fire (none / 0) (#6)
    by cboldt on Tue May 14, 2013 at 04:57:34 PM EST
    I agree, the state is in a jam with the experts, but they could see that coming a year ago, as you point out with the FBI report.

    My caution is based on a presumption that the state didn't tell Reich what to write.  It might have picked him because it suspected he would be favorable, but the words in the report are Reich's, not the state's.  If the state never moves to introduce his report, or if the state doesn't defend the report, then it's hard for me to blame the state for what Reich wrote.

    OTOH, if Bernardo shows up at the hearing and says he fully intends to introduce Reich, and "let's have that hearing, because it's coming in unless Nelson excludes it," well, then I say pile the ridicule on deep - because, as Jeralyn says, Reich's report is a joke.  If Bernardo doesn't see that, then his defense (of Reich) just makes him a bigger fool.

    Parent

    Old News (none / 0) (#5)
    by nomatter0nevermind on Tue May 14, 2013 at 04:53:31 PM EST
    It's not as if the report could be surprising to the prosecution. As Jeralyn pointed out in the post, and AJ on the forum, much of its content is previously published.

    Parent
    Not saying the state is honest (none / 0) (#8)
    by cboldt on Tue May 14, 2013 at 05:08:24 PM EST
    The state provided Reich with data he did not have to work with when he composed his original report.  A good (honest, clinically objective) expert will have qualified or conditioned or limited his first opinion so that new data might modify it.  I don't think Reich's fist opinion, in the WaPo, had that quality, but there is always a possibility that new data results in a different and sometimes opposite conclusion.

    With that general principle, Reich could have taken Martin's voice exemplar and said "this changes my conclusion."

    Off on a bit of a tangent, it's good practice for an expert to refuse to be retained (named in court filings) as counsel's expert until he has a chance to review the evidence.  It may be that the evidence produces a conclusion that counsel does not want to present at trial.  Lawyers make book on experts, and inconsistent or shoddy application of scientific principles will be found out.

    Parent

    Expert (none / 0) (#10)
    by nomatter0nevermind on Tue May 14, 2013 at 05:27:08 PM EST
    My point is that they knew what kind of 'expert' Reich is.

    Parent
    zimmerman (none / 0) (#117)
    by morphic on Sun May 19, 2013 at 02:18:34 PM EST
      Apparently he can take three different indistinct voices layered on top of each other, and make an accurate diagnosis of what's being said. Either that, or he"s delusional.

    Parent
    Interesting (none / 0) (#3)
    by ackbarsays on Tue May 14, 2013 at 04:44:17 PM EST
    ...that Reich, after performing nearly a year of careful analysis using voice exemplars from both Trayvon Martin and George Zimmerman, came to the same conclusion that he did in May of 2012 when he didn't have the Martin exemplars, only now, he hears things that nobody else does - and they're things that nobody would say.  "These shall be?" Really?  

    What a quack.  Bernie de la Rionda should be ashamed of himself if that's the best he can do.

    I continue to be amazed that... (none / 0) (#7)
    by Cashmere on Tue May 14, 2013 at 04:57:49 PM EST
    this is even going to trial.  From the initial affidavit of probable cause to discovery such as this.  Not to mention all the questions surrounding W#8's testimony.  Unless the state has much more than we have seen, I do not see how Zimmerman can be found guilty of anything.

    there is also one point to consider (3.00 / 2) (#12)
    by nyjets on Tue May 14, 2013 at 05:36:20 PM EST
    Would anyone have been killed if Zimmerman had not followed the victim. I would think that the jury will have that to chew on.

    Parent
    Pretty weak point. (5.00 / 1) (#13)
    by redwolf on Tue May 14, 2013 at 05:54:58 PM EST
    Travon would have been just as alive if he hadn't continued beating Zimmerman after a witness told him to stop and that he was calling 911.  

    Parent
    Zimmerman did nothing illegal in following (5.00 / 1) (#15)
    by Cashmere on Tue May 14, 2013 at 06:19:08 PM EST
    for the jury to "chew on".  

    Parent
    It doesn't have to be "illegal," ... (3.00 / 2) (#17)
    by Donald from Hawaii on Tue May 14, 2013 at 06:24:56 PM EST
    ... any more than it was illegal for Zimmerman to be carrying a gun that night. The prosecution is simply using those facts to establish the defendant's culpability in initiating the subsequent chain of events that led to the shooting.

    Parent
    If the state cannot prove.. (5.00 / 1) (#23)
    by Cashmere on Tue May 14, 2013 at 06:46:54 PM EST
    that Zimmerman killed Martin for a reason other than self-defense, then your culpability issue is moot.

    Parent
    I depends upon what the judge ... (none / 0) (#26)
    by Donald from Hawaii on Tue May 14, 2013 at 06:59:31 PM EST
    ... allows the jury to consider during deliberations. If the jury can consider a lesser charge, then his culpability in initiating the chain of events is definitely a factor.

    but if the jury is only allowed to deliberate on the charge of second degree murder, well, I've already articulated my reasons why I think Zimmerman's not guilty of that charge.

    Aloha.

    Parent

    Lesser Includeds (none / 0) (#28)
    by nomatter0nevermind on Tue May 14, 2013 at 07:11:08 PM EST
    In Florida, lesser includeds are automatic, and manslaughter is a lesser included for murder. IOW, the judge does not have discretion over whether the jury is allowed to consider manslaughter.

    I don't know if reckless endangerment is a lesser included. I would be surprised if it is.

    Parent

    Even if (none / 0) (#43)
    by ackbarsays on Tue May 14, 2013 at 09:05:24 PM EST
    the jury is allowed to deliberate on manslaughter in addition to 2nd degree murder, the fact remains that the burden is completely on the state - not just to prove George's guilt beyond a reasonable doubt, but to DISPROVE beyond a reasonable doubt that he was in reasonable fear for his life. The jury will be given self-defense instructions that specify this.  Even if one assumes that George initiated the confrontation (though the state's "star" witness says that Trayvon initiated it), then when the altercation reaches a point where Trayvon was exercising such unequal force that George had a reasonable fear that he was in danger of suffering death or great bodily harm and had no ability to retreat, he was legally authorized to use deadly force to defend himself.  

    Now, that doesn't mean the jury won't decide to go their own way, but if they follow the law, there is simply no possible way George can be convicted.  ALL of the evidence points to Trayvon administering a major beatdown on George.  He defended himself within his rights under the law, regardless of whatever the circumstances were that led to the start of the confrontation.

    Parent

    If GZ was defending his life (5.00 / 1) (#56)
    by TeresaInPa on Wed May 15, 2013 at 07:25:25 AM EST
    his following Martin has nothing to do with nothing.  Following someone is not illegal.

    Parent
    Provocation (none / 0) (#57)
    by Yman on Wed May 15, 2013 at 07:33:31 AM EST
    Acts don't have to be illegal in order to be considered relevant to the issue of provocation.

    Parent
    SYG states that as long as the individual (none / 0) (#59)
    by leftwig on Wed May 15, 2013 at 08:17:13 AM EST
    has not done anything illegal, then they may invoke SYG.  I don't see similar language in the the standard self defense statute so I imagine its open to interpretation.

    Parent
    I don't have access to ... (none / 0) (#60)
    by Yman on Wed May 15, 2013 at 08:53:17 AM EST
    ... (nor the interest in researching) Florida case law, but - assuming for the sake or argument that the issue of anticipatory/preemptive use of force is "open to interpretation", the issue of GZ following TM certainly is certainly relevant.

    Parent
    It may be relevant to Martins first action (none / 0) (#61)
    by leftwig on Wed May 15, 2013 at 09:13:19 AM EST
    but in regards to Zimmermans criminal liability, the SYG law is pretty clear.  

    A person who is not engaged in an unlawful activity, and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.  

    Parent

    If it was "clear"... (5.00 / 1) (#63)
    by Yman on Wed May 15, 2013 at 09:23:09 AM EST
    ... that GZ's following of TM was irrelevant, there would be no evidence or testimony on this issue allowed into evidence.

    I'll be more that happy to take that bet.

    Parent

    I didn't say GZ following TM would be (none / 0) (#65)
    by leftwig on Wed May 15, 2013 at 09:52:10 AM EST
    irrelevant, just that its not illegal nor does it preclude him from invoking a SYG defense.  If there is evidence that GZ did follow TM right up until the confrontation took place, it would be very relevant to the case because it would contradict GZ's statements and destroy his credibility.  I do however believe the law is clear that the prosecution needs to come up with more than GZ followed TM which is why they included in the APC that GZ confronted TM.  Confronting him wouldn't be illegal either and if GZ asked TM what he was doing around there, he would be well within his rights to do so.  

    Parent
    My point ... (5.00 / 1) (#66)
    by Yman on Wed May 15, 2013 at 10:52:29 AM EST
    ... (as I clearly indicated) was that GZ's following of TM was relevant to the issue of provocation, and the fact that his act was legal does not make it irrelevant - as TeresainPa claimed.  It sounds like you're in agreement, although it was a very roundabout way of getting there, and discussing other things which are irrelevant to my point.

    Parent
    We are not in agreement (5.00 / 1) (#70)
    by leftwig on Wed May 15, 2013 at 12:04:46 PM EST
    I say GZ's following and confronting (if it can be proven to have occurred) would be relevant to impeach his statement and ruin his credibility, which makes it relevant to the case, but doesn't reach a conclusion of guilt on its own.  I can't rule out that TM's first action of hitting GZ was justified if he was in fear and felt trapped by GZ.  IS there any evidence the prosecution has that this occurred?  Does where the arguing began, in an open area in sight of GZ's truck and at the location TM ran from roughly 3.5 minutes earlier, indicate that his involvement in the confrontation was involuntary?

    As far as GZ being guilty of a crime, the statute for SYG clearly says he can be granted immunity from prosecution as long as he wasn't doing anything illegal prior to the fight starting.  The prosecution has to be able to prove more than following and confronting to overcome an immunity claim.  It could be that TM was justified in initially striking GZ (he had fear even though GZ did nothing illegal), but that GZ also has immunity from prosecution via his self defense claim.


    Parent

    It could be (5.00 / 1) (#77)
    by Yman on Wed May 15, 2013 at 01:09:39 PM EST
    It could be that TM was justified in initially striking GZ (he had fear even though GZ did nothing illegal), but that GZ also has immunity from prosecution via his self defense claim.

    None of which is relevant to my point, which is that GZ's following of TM - despite being legal - is also clearly relevant to the issue of provocation.  Moreover, the issue of "confronting" is independent and was not included in the point I was making.

    Parent

    One or the other was doing something illegal (5.00 / 1) (#80)
    by cboldt on Wed May 15, 2013 at 01:43:27 PM EST
    -- It could be that TM was justified in initially striking GZ (he had fear even though GZ did nothing illegal) --

    Not possible under the law.  The threat of force or use of force are both criminal acts, and having fear (without more) is insufficient basis for using force.  In order for TM to be justified in his use of force, any fear that TM might have had, had to be caused by Zimmerman first threatening or using force.  Put in terms of the criminal code, any fear that TM might have had, had to be caused by Zimmerman first committing assault or battery.

    FS 784.011 Assault.--

       (1) An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

    FS 784.03 Battery; felony battery.--

       (1)(a) The offense of battery occurs when a person:
       1. Actually and intentionally touches or strikes another person against the will of the other

    Parent

    Cboldt (none / 0) (#82)
    by ackbarsays on Wed May 15, 2013 at 02:16:47 PM EST
    I'm not sure that your interpretation is entirely correct.  I believe it's quite possible that when Trayvon confronted George, and George reached for his phone, Trayvon could have thought that George was going for a weapon.  That could create a "well-founded fear" in Trayvon that George was about to commit some act of violence against him.  I'm not saying it DID happen that way, just that I can't exclude that from the realm of possibilities.  The key thing is that - even IF it happened that way, a scenario in which TM would have been perhaps justified in striking GZ, then when it reached a point where GZ reasonably feared that he was going to suffer death or great bodily injury, GZ was justified in using deadly force to repel TM.

    Parent
    That's not the question (5.00 / 1) (#92)
    by MJW on Wed May 15, 2013 at 03:55:41 PM EST
    The question isn't whether TM might have been able to claim self-defense because he had a well-founded fear. Inspiring well-founded but mistaken fear is not provocation.

    Suppose a well-known violent criminal tells a bartender that he's going out to his car to get his gun so he can shoot the unfortunate individual. Then suppose just after the criminal walks out, I walk in holding a cell phone, and I happen to look just like the criminal, and I'm dressed similarly. If the bartender attacks me, he may certainly have a self-defense claim. Does his reasonable but mistaken fear deprive me of a right to to defend myself?

    Parent

    Should have said "reasonable" (none / 0) (#97)
    by MJW on Wed May 15, 2013 at 04:40:14 PM EST
    Instead of "well-founded," I probaly should have said "reasonable."

    Parent
    Now I see why ... (none / 0) (#99)
    by MJW on Wed May 15, 2013 at 04:47:36 PM EST
    I see I used "well-founded" in response to the comment I replied to, but I don't think "well-founded" is correct to describe any fear TM may have had when GZ reached for his cell phone. If -- and I think it's not all that likely -- TM punch GZ because he believed GZ was reaching for a weapon, his fear may have been reasonable, but it wasn't well-founded.

    Parent
    zimmerman (none / 0) (#103)
    by morphic on Thu May 16, 2013 at 08:32:22 AM EST
      If Trayvon had a fear, and a cellphone, why didn't he use it to  call for assistance?

    Parent
    I see your point (none / 0) (#84)
    by cboldt on Wed May 15, 2013 at 02:31:29 PM EST
    And it would probably be a close call, assuming Martin limited his return of force, whether or not Martin's first blow was justified self defense.

    776.012 - 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.

    You can see the similarity in language between the assault statute and the justification to use force statute.  Martin would be justified in use of force on reasonable belief such use was necessary to defend against imminent use of unlawful force by Zimmerman.

    Parent

    Ack's reply is exactly what I was getting at. (none / 0) (#88)
    by leftwig on Wed May 15, 2013 at 03:33:39 PM EST
    I can think of scenarios just like this (person being followed, confronts the guy following him and fears he's going for a weapon).  Following is not illegal, nor is confronting, or reaching into your pocket yet one could be justified in their action in a preemptive defense if they believed the threat was credible.  

    Again, whether TM thought GZ was a threat isn't relevant to GZ's right to defend himself against TM. Whats relevant is whether GZ did anything illegal to provoke TM's actions.  There are many things that are provoking but not illegal, hence the need for a standard.  What would be relevant to the GZ criminal case would be whether he did anything to provoke TM that was illegal.

    Parent

    The Prosecution Can Suggest (none / 0) (#71)
    by RickyJim on Wed May 15, 2013 at 12:19:20 PM EST
    That Zimmerman made an illegal attempt to detain Martin and cite getting out of the car while armed, not wanting the a***e to get away, his bad track record at catching suspects, etc, as circumstantial evidence.  How they can prove it beyond a reasonable doubt is beyond me.

    Parent
    That scenario (none / 0) (#81)
    by ackbarsays on Wed May 15, 2013 at 01:46:52 PM EST
    doesn't exist without someone engaging in pure speculation as to what happened after George hung up the phone with the dispatcher - speculation that would contradict both George's statements to police AND the testimony of witness 8.

    Parent
    The many levels "provoke" (none / 0) (#78)
    by cboldt on Wed May 15, 2013 at 01:31:34 PM EST
    A good definition of "provoke" for purposes of a provocation that justifies the use of force, is found in Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001).  Hat tip to MJW for pointing this out elsewhere.

    In order for "following" to meet the threshold for being a provocation under the law, the following has to be at least a threat of force.   The jury instruction that would have cured the error by the trial judge was:

    The use of force not likely to cause death or great bodily harm is not justified if you find Joelle Gibbs initially provoked the use of force against herself, by force or the threat of force.
    (emphasis in the original, and is a modification of the standard jury instruction)

    Parent
    Whichmightbe relevant ... (5.00 / 1) (#86)
    by Yman on Wed May 15, 2013 at 03:03:43 PM EST
    ... if I was arguing that the following, per se, was legal provocation.

    I'm not.

    Parent

    Two things ... (none / 0) (#89)
    by cboldt on Wed May 15, 2013 at 03:38:38 PM EST
    I understood that you were arguing relevance.

    I wasn't responding to your remarks.

    Parent

    they have to be more than annoying (none / 0) (#110)
    by TeresaInPa on Thu May 16, 2013 at 08:29:35 PM EST
    to provoke physical assault to the degree that the person fears for his or her life. Some one watching you from a distance, keeping you in view is not threatening to the point of

    Parent
    to the point of (none / 0) (#111)
    by TeresaInPa on Thu May 16, 2013 at 08:31:05 PM EST
    needing to beat them on the ground.  I think calling the police on your cell phone would be a better choice if you are truly scared.

    Parent
    True (5.00 / 1) (#113)
    by Yman on Fri May 17, 2013 at 08:29:43 AM EST
    Of course, we don't know that's actually what happened.

    Either way, the following is most certainly relevant to the issue of provocation, regardless of the fact that following someone is legal.

    Parent

    You cannot deny that there is actual (none / 0) (#115)
    by Cashmere on Fri May 17, 2013 at 10:35:00 AM EST
    physical evidence that Zimmerman was being attacked by Martin.  Your provocation argument requires speculation about what "really happened".  

    Parent
    Read it again (none / 0) (#116)
    by Yman on Fri May 17, 2013 at 11:50:37 AM EST
    That's not what I denied.  Whether there was a "physical assault to the degree that the person fears for his or her life" (particularly reasonably fears) and whether he was "beaten on the ground" are issues of fact which need to be decided by the jury.  Moreover, the jury is certainly entitled to draw an inference - based on all of the circumstances and W8's testimony as opposed to "speculation" - as to why TM ran from GZ.

    Parent
    It would have more relevance if we were (none / 0) (#118)
    by leftwig on Sun May 19, 2013 at 02:29:04 PM EST
    talking about TM being on trial for assault.  Since following isn't illegal, its mostly irrelevant to GZ's claim of self defense.  The only relevance to his case is if it can be shown (through GPS or ping logs) that GZ followed a path different from the one he has made statements to.  IF GZ went south to somewhere near BG's place and circled back around to the 'T' where the fight began, it would hurt his case because it contradicts his statements.  

    Whether TM felt provoked by GZ's legal actions or not doesn't matter to GZ's self defense claim.

    Parent

    Of course it does (none / 0) (#119)
    by Yman on Sun May 19, 2013 at 02:53:43 PM EST
    Whether TM felt provoked by GZ's legal actions or not doesn't matter to GZ's self defense claim.

    If you actually believe this, you don't understand FL self-defense law.

    Parent

    Then please explain it to me. (none / 0) (#120)
    by leftwig on Sun May 19, 2013 at 09:03:37 PM EST
    IF GZ didn't do anything illegal prior to TM attacking him, he has a valid claim to self defense.  IT doesn't matter whether TM had a perception of a threat from GZ if GZ didn't do anything illegal.  GZ has the same right to defend himself from an attack whether the attacker felt GZ was a legitimate threat or not.

    What you are offering is a potential explanation for how TM's initial action could have been within the law and would be a potential defense for his action were he on trial.  It might matter if TM was on trial, but whether TM's action was legally justified or not doesn't matter for GZ's self defense claim.  What matters for GZ's self defense claim is whether he did anything illegal to provoke TM.

    Parent

    Then the question becomes, (5.00 / 1) (#121)
    by NYShooter on Mon May 20, 2013 at 01:34:52 AM EST
    when does "provocation" become an "illegal act?"

    I'm sure you could conceive of many possible scenarios. Here's one potential theory:

    a. TM is already apprehensive, or fearful, due to being followed, or "perceived" being stalked.

    b. GZ, without identifying himself,  talks to TM in a "perceived" threatening and/or disrespectful manner.

    c. Following some trash talk GZ tells TM, "you better watch your mouth, boy, I'm "carrying," or words to that effect.

    d. brawl breaks out.

    I believe, in this speculative scenario, GZ's provocation would (or could) be found to be illegal, and, I think it would make a SYG defense moot.

    Obviously, I'm not an attorney, and would welcome any input vis-à-vis this (or similar) possibility.


    Parent

    I agree that there are provocations that would (none / 0) (#122)
    by leftwig on Mon May 20, 2013 at 07:43:28 AM EST
    be considered an illegal act.  Yman has started with the premise that GZ did nothing illegal to provoke TM and that TM's response was a result of something he perceived, not a result of any illegal act that GZ performed.  What I am contending is that whether TM perceived GZ as a threat or not is mostly irrelevant to GZ's criminal case.  ITs whether GZ's actions were an illegal provocation or not that matters.

    I can think of scenarios where GZ could have done something illegal to provoke TM.  As for this particular case, I haven't seen any evidence supporting any of those scenarios.  

    Parent

    Faulty premise (5.00 / 1) (#123)
    by Yman on Mon May 20, 2013 at 07:56:01 AM EST
    IF GZ didn't do anything illegal prior to TM attacking him, he has a valid claim to self defense.

    That's my whole point.  There is no law/case which indicates that an action must be illegal to constitute provocation for self defense purposes.  Actions can be legal and still be considered provocation.  If - as the prosecution alleges - Zimmerman provoked the confrontation by following Martin, then he may be barred from an SYG or even a standard self-defense claim.  OTOH - if Martin went beyond striking Zimmerman and wrestling on the ground with him and actually did what Zimmerman alleges (punching him 2 dozen times in the face, smashing his head against the concrete while saying he was going to kill him and reaching for his gun, etc.), then Zimmerman would have regained the right to self defense due to the excessive force used by Martin.  Only then does the issue of provocation become moot, due to the purported use of excessive force.

    If you find Zimmerman's story credible.

    Here's a good summary on FL case law on the subject of provocation, as well as a brief summary of what the author believes will be the prosecution's theory.  Based on the pleadings and evidence so far, the summary sounds accurate.

    Parent

    Faulty Argument (none / 0) (#124)
    by RickyJim on Mon May 20, 2013 at 08:18:51 AM EST
    From that "good summary" you reference:
    There is no credible evidence that Zimmerman either tried to escape from Martin or that he withdrew and clearly indicated his intent to withdraw from the altercation. Accordingly, under 776.014, Zimmerman may not claim that he acted in self-defense.

    What a load of cr**.  It is the prosecution's burden to prove that Zimmerman didn't try to escape.  Witness #6's testimony and the screams (the last two of which a prosecution report said most likely came from Zimmerman) show that the prosecution has no chance of establishing that.

    Parent
    Faulty point (5.00 / 1) (#126)
    by Yman on Mon May 20, 2013 at 10:04:17 AM EST
    I wasn't making that claim - merely pointing to what the author indicated the prosecution was likely to argue.  Moreover, the author was indicating the prosecution's argument would be that there is "no credible evidence that Zimmerman either tried to escape from Martin or that he withdrew."  You're citing that report as evidence that (in your mind) clearly contradicts that premise ("What a load of cr@p"), so you find that report to be "credible evidence", now?  As far as Witness 6's testimony, Witness 6 testified that someone cried "Help" but doesn't know who - as opposed to testifying that Zimmerman was trying to escape.

    In terms of your opinion of what the prosecution has "no chance of establishing" - if all of your opinions on this issue were so clear, this case would have been summarily disposed by motion long ago.  Either way, Zimmerman's actions (whether legal or not) are clearly relevant to the issue of provocation, which (along with the reasonableness of force used) will be a central issue in the trial.

    Parent

    What's So Complicated? (none / 0) (#131)
    by RickyJim on Mon May 20, 2013 at 01:27:13 PM EST
    First of all, Witness #6 gave reasons for believing both that Zimmerman was the one crying to help, even though he couldn't see his mouth move.  Second, I will admit that Zimmerman can be found guilty, at least, of manslaughter if the prosecution succeeds in establishing either 1 or 2 below.

    1. Beyond a reasonable doubt, Zimmerman was committing a crime at the time he and Martin started fighting.

    2.Beyond a reasonable doubt, Zimmerman provoked the original conflict and beyond a reasonable doubt he could have safely terminated it but he didn't.

    Is there a third way?  I find the article you cited, a sophistic attempt to shift the burden of proof.

    Parent

    "Reasons" - heh (5.00 / 1) (#132)
    by Yman on Mon May 20, 2013 at 01:51:57 PM EST
    First of all, the "reasons" W6 gave for his belief that Zimmerman was crying for help was his the fact that he assumed it - nothing more, nothing less.

    Second, there are other - much more plausible - ways Zimmerman can be found guilty of either manslaughter or Second Degree Murder, but that's another subject.

    Third, that article was written by Wilson Huhn, a professor of law, graduate (cum laude) of Yale and Cornell Law (law review).  I'm sure he would be very upset to hear that you find the article "a sophistic attempt to shift the burden of proof".

    Heh.

    Parent

    Read the case (none / 0) (#125)
    by cboldt on Mon May 20, 2013 at 08:56:45 AM EST
    Mixon v. State, 59 So.2d 38 (Fl 1952)

    The fact pattern preceding the final altercation is distinguishable in many ways, from the fact pattern supported by state's evidence in the Zimmerman case.  Plus, the fact pattern of defendant's action in Mixon (the state's version) includes more than "pursuit."

    In the Mixon case, there was a finding of a brandished handgun, and the shooter was found to have made an effort to come in contact with the victim.

    The article has a good list of cases.  But the cases don't necessarily stand for the propositions asserted in the summaries presented in the article.

    On rethinking whether one or the other had to have committed a crime (before the shot was fired), I've changed my mind slightly.  The crime of assault requires an intent to use or threaten force.  It is possible for a person to move in such a way that is (reasonably) perceived as an immediate threat of force, when the person moving does not intend to use or threaten force.  From the jury's point of view, the finding of assault also includes (besides intent) whether or not it is reasonable to take the moves as a credible, immediate threat of force.

    Zimmerman would have had to have committed assault in every sense except that of having an intent to threaten or use force, in order for Martin to have been justified in using force.

    Parent

    Whether the provocation was legal or not (none / 0) (#127)
    by leftwig on Mon May 20, 2013 at 10:13:58 AM EST
    is written directly into the law.  Statute 776.013 section (3):

    A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

    Following someone or asking what someone was doing around there (if GZ did indeed say that) could be perceived as provoking (I'm sure TM did) , yet unless there was something illegal in the way GZ was following or asking the question, he is covered under the above statute.  The state needs to show more than TM being provoked by GZ, they need to show that he was illegally provoked.  

    The first two cases in the link provided are in no way similar to GZ's.  The third case has a few similarities, though in the third, the defendant had an altercation with the person, went home and got his gun then tracked him down again and had another altercation.  Also, the event occurred before the current self defense and SYG statutes were written.  The conclusions in the piece offer no precedent that is applicable to the GZ case.  The new SYG law makes it clear the provocation must be an unlawful act.  

    Parent

    You would be wrong (none / 0) (#128)
    by Yman on Mon May 20, 2013 at 10:48:50 AM EST
    Following someone or asking what someone was doing around there (if GZ did indeed say that) could be perceived as provoking (I'm sure TM did) , yet unless there was something illegal in the way GZ was following or asking the question, he is covered under the above statute.  The state needs to show more than TM being provoked by GZ, they need to show that he was illegally provoked.

    The new SYG law makes it clear the provocation must be an unlawful act.

    Provocation can negate either a "traditional" or an SYG defense, and there is no basis for the the claim that provocation must be an illegal act.  Assuming (for the sake of argument) that GZ's actions were not illegal but were provocation, he is not protected by the SYG statute.  Section 776.041 overrides 776.013 (SYG) and explicitly states that the rules of self-defense that are "described in the preceding sections of this chapter" (including SYG) do not apply if the defendant was attempting to commit a forcible felony OR if the defendant initially provoked the attack against him.  The statute does not define provocation and there is no case law in FL indicating that an act must be illegal to constitute provocation.

    Parent

    So you are relying on GZ being the agressor, not (none / 0) (#129)
    by leftwig on Mon May 20, 2013 at 12:14:20 PM EST
    simply a provocateur.  Following could be considered provocative, its not an act of aggression.  Asking what one is doing in the neighborhood could be provocative, but its not in an of itself an aggressive act (could be depending on wording and how it was asked).  The 776.041 statute is clearly talking about an aggressor who is provoking, not simply any action that could be perceived as provocative.  IF this were the case, I could kick the crap out of anybody who says something I don't like.

    This conversation went down this path because the statement was made that if TM perceived GZ's actions as provocative, it would be relevant to the case and I disagreed to the level of relevance.  If your initial statement would have pertained to TM responding toward an act of aggression instead of any perceived provocative act, this conversation would have never taken place or at least would have centered on what aggressive acts can be proven.  I can think of many provocative actions that aren't aggressive, starting with the ones above and they most certainly would not override the SYG statute.  The term aggressor is vague and I don't believe that every aggressive act is necessarily illegal, though I can't think of examples off of the top of my head of ones that wouldn't be.  

    Parent

    Keep spinning (5.00 / 1) (#130)
    by Yman on Mon May 20, 2013 at 12:43:18 PM EST
    So you are relying on GZ being the agressor, not simply a provocateur.

    No.  I said that "acts don't have to be illegal in order to be considered relevant to the issue of provocation."  I never used the word "aggressor", although in the context of a claim of self defense acts that are "provocative" are often acts that can be perceived as threatening or aggressive - although not necessarily.

    But good luck trying to redefine my very clear point.

    This conversation went down this path because the statement was made that if TM perceived GZ's actions as provocative, it would be relevant to the case and I disagreed to the level of relevance.

    Disagreed with what "level" of relevance?  I said they were Zimmerman's actions were not irrelevant, but were "relevant" and "certainly relevant".  That's not a "degree" of relevance - it's just stating the fact that his actions - legal or not - are relevant to the issue of provocation.

    You then claimed that it was "mostly irrelevant" to GZ's self defense claim:

    1.  unless it could be shown that GZ took a path different than he claimed (goes to GZ's credibility), or

    2.  "IT doesn't matter whether TM had a perception of a threat from GZ if GZ didn't do anything illegal."

    My point is that GZ's actions are clearly relevant to the issue of provocation, whether his actions were entirely legal or not.  The SYG provision specifically exempts an SYG defense for someone engaged in illegal activity.  But the self defense law itself exempts an SYG claim or a traditional self defense claim if the defendant initially provoked the attack against him.  The key word is "provoked" - not "aggressor" - which I never used.  Moreover, there is absolutely no case law to support the idea that actions must be illegal in order to be considered provocation.  If you provoke an attack you can't claim self-defense, unless:

    (a)  Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

    (b)  In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

    Either way, the issue of GZ's actions as they relate to the issue of provocation - legal or not - are relevant to his self defense claim, and will be a central focus of any trial and/or SYG hearing.


    I can think of many provocative actions that aren't aggressive, starting with the ones above and they most certainly would not override the SYG statute.  The term aggressor is vague and I don't believe that every aggressive act is necessarily illegal, though I can't think of examples off of the top of my head of ones that wouldn't be.

    Good for you.  Let me know if you win that argument with yourself.

    Parent

    You didn't use the word aggressor initially, but (none / 0) (#133)
    by leftwig on Mon May 20, 2013 at 03:39:18 PM EST
    the statute you cite to back your position does specifically use that reference.  It states that one who is an aggressor and provokes cannot use SYG or standard self defense for initial acts (could reclaim a right to standard self defense later).  

    YOu are correct that my statement should more correctly say that it doesn't matter if GZ did anything to provoke TM as long as the action wasn't as an aggressor.  I can't think of any act of aggression that wouldn't also be deemed illegal (feel free to provide one), but given the way the statutes are written, using the language "as an aggressor" is more correct.

    You cited a link to an article referencing several cases to back your claim.  In all cases, the defendant was the initial aggressor, either pulling a man from his truck and beating him, or going and getting a gun and chasing him down in his vehicle or going after the victim after an initial altercation.  There isn't any similar case where a person was deemed an aggressor for following or asking what the person was doing (conceding these points for this discussion even though the prosecution doesn't seem to have any evidence in support).  Provocation is not nearly enough, it must be provocation as an aggressor.  

     

    Parent

    Congratulations (none / 0) (#134)
    by Yman on Mon May 20, 2013 at 08:36:20 PM EST
    Provocation is not nearly enough, it must be provocation as an aggressor.

    On inventing an entirely new legal standard!

    Or not.

    In reality, there is no such standard.  Provocation is the standard under FL law - the phrase "Use of force by aggressor" is a descriptive header/title of the statute section (776.041) which applies a provocation exception to both "traditional" self defense claims and SYG claims.  But at least we've moved beyond the prior imaginary requirement that GZ's actions must be illegal in order to be considered provocation.

    There isn't any similar case where a person was deemed an aggressor for following or asking what the person was doing (conceding these points for this discussion even though the prosecution doesn't seem to have any evidence in support).

    Not surprising there is no case with the exact same fact pattern, although it is surprising to learn the "prosecution doesn't seem to have any evidence in support" of following or "asking what a person was doing", considering GZ's own words and W8's testimony.

    You cited a link to an article referencing several cases to back your claim.  In all cases, the defendant was the initial aggressor, either pulling a man from his truck and beating him, or going and getting a gun and chasing him down in his vehicle or going after the victim after an initial altercation.

    Those would only be two of the cases cited.  Most of the case summaries don't give specific facts as to what constituted "provocation", but the applicable legal standard is whether the defendant "provoked" the use of force.

    Once again, there is no requirement that someone's acts be illegal in order to constitute provocation.  Those acts may or may not be viewed as "aggressive", but "provocation" can and does include behaviors that could be considered "aggressive" - but be perfectly legal.

    Zimmerman's actions - whether legal or not - are entirely relevant to the issue of provocation, as opposed to the imaginary standard of "provocation as the aggressor".

    Parent

    When is the provokee entitled to use force? (none / 0) (#135)
    by cboldt on Tue May 21, 2013 at 05:40:02 AM EST
    Assuming for the sake of argument that a legal act (meaning the act is not within the ambit of assault) can constitute provocation under 776.041, the consequences are to the provoker, who may not claim immunity unless he recedes and the fight continues, etc.  The fact that Zimmerman was the provoker (using a legal act) does not give Martin justification to use force.

    776.012 - 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.

    Now, it may be that the reasonable belief was a false belief, in fact a mistake.  I mentioned this above in distinguishing assault (which includes the element of intent) from provocation (which is all the elements of assault as perceived by the provokee, minus the element of intent).

    I haven't seen a case where a lawful act constituted provocation, or where a person who had no intention to use force was deprived of self defense immunity.

    Parent

    A little difficult to follow ... (5.00 / 1) (#139)
    by Yman on Tue May 21, 2013 at 12:12:22 PM EST
    ... with all the clarifications, revisions and corrections, but my point remains - there is no authority for the proposition that legal actions are irrelevant to the issue of provocation.

    As to your other questions, there is no bright-line test for what constitutes provocation.  The article I cited provide factual summaries for only a couple of cases, but the author notes (and I agree) that the cases generally hold that an "aggressor", "wrongdoer" or someone who is not "free from fault" may not claim self defense (i.e. the common law rule codified as "provoke").  While people may disagree as to whether Zimmerman is an "aggressor", "wrongdoer" or "free from fault", his actions (legal or not) are certainly relevant to the issue of provocation.

    Your larger issue appears to be whether a "reasonably mistaken assault" (one in which a threat of assault is reasonably perceived but there is no intent to assault) would be provocation.  Clearly, under 776.012, the person perceiving the threat under those circumstances would be legally entitled to use self defense regardless of the "attacker"'s lack of intent to assault.

    Here's a hypothetical.  Peter Provoker engages in acts which are completely legal but are reasonably perceived as threatening by Vince Victim.  One night, Peter openly watches Vince on a public street and begins following him.  Vince observes Peter talking to himself and following him.  Peter Provoker sees a samurai sword on the ground and Vince sees him pick it up.  Vince tries to flee down an alley and hide.  Peter, believing that Vince dropped the sword, picks it up and runs down the alleyway after Vince, waving the sword in the air and screaming to get Vince's attention.  As Peter comes upon Vince, Vince punches Peter and struggles with him.  For the sake of argument, assume that Peter's actions are entirely legal and he has no intent to assault Vince - he just wanted to return the sword.

    The issues are:  1)  Does Vince Victim have the right to use force to defend himself from his mistaken assault (i.e. Where is the provokee entitled to use force?")?, and 2) Did Peter Provoker "provoke" the altercation, regardless of the fact that Vince struck the first blow, or did he have to actually have to commit assault on Vince Victim (i.e. have the intent to assault him)?

    I would argue the answer is "yes" to both regardless of whether there is case law on the second issue - but it doesn't really matter for purposes of my point.  The cases dealing with provocation don't focus on the legality of the provoker's actions, but on whether those actions create the situation that brings about the altercation, particularly if they are aggressive or threatening in nature - regardless of whether those actions are legal.

    My point - as I indicated in my first post - was that the fact that an action is legal does not make it irrelevant to the issue of provocation.  If that were the case, the court in Mixon would have ignored evidence that the "provoker"/defendant returned to his house to get a gun and then deliberately followed the victim, both of which were legal acts.

    Parent

    The Mixon case has more (none / 0) (#140)
    by cboldt on Tue May 21, 2013 at 12:54:15 PM EST
    I don't disagree with your point about relevance.  It is easy for an action to be potentially relevant.  But relevance isn't a sufficient inquiry to establish the legal threshold for "provoke."

    In the Mixon case, getting the gun was part of the finding (and it also goes Mixon's intent), because without getting the gun, Mixon would have no gun to brandish.  And too, seeking out the victim was a necessary part of the action (and this too goes to Mixon's intent), otherwise Mixon would not have that victim to brandish at.  But it's incorrect to say that the Mixon case stands for the proposition that getting a gun and following (without more) constitutes provocation.

    In the Mixon case, the appellate court noted the existence of evidence that amounts to the jury being able to find that Mixon brandished his gun at the victim.  While the getting a gun and seeking out the victim in order to confront him was legal, brandishing is not.  We don't know, from the Mixon case, if some or all of those actions were necessary to become provocation under the law.  Would it have been provocation if Mixon had not gotten the gun, but just followed?  Or if he got the gun but didn't brandish it, and instead approached the victim, mooned him and insulted him?  A case cited above (I forget the title) says mooning and racial insults are not provocation, because they lack the element of threatened force.

    That case holds that use or threatened use of force is a necessary part of "provocation."  Intentionally using or threatening the use of force is unlawful, unless it falls within the scope of a 776 justified use of force exception.

    If Your point #2 is just making a non-legal point, that the altercation was provoked by Peter Provoker's excited approach to Vince Victim, I have no quarrel with it.

    But if your Point #2 as to Peter Provoker is that Peter Provoker has lost his right to self defense under 776.041, you haven't supported that contention with a case.  In addition, you have described a legal environment where a person who "unintentionally provokes" is stripped of the right to self defense.  That might be correct, but I know of no case law that supports that proposition.

    I agree with your conclusion on Point #1 as to Peter Provoker.

    Parent

    One additional thought (none / 0) (#141)
    by cboldt on Tue May 21, 2013 at 01:25:29 PM EST
    The Mixon case doesn't tell us anything about an "unintentional provocation," at the point of getting the gun, because Mixon admitted he intentionally got the gun.  That case also doesn't tell us about "unintentional provocation" at the point of following the victim, because the jury didn't believe Mixon's story, that he was looking for the police, not the victim, and the jury concluded that Mixon intended to find and approach the victim.

    The jury doubtless believed, as well they might have from the defendant's actions and the direction he eventually took, that when the first difficulty ended and the men separated, he went to his home, armed himself and deliberately began a pursuit of the deceased, instead of a search for a deputy sheriff.

    So far, we're roughly parallel with Zimmerman, except for the issue of whether or not Mixon and/or Zimmerman had an intention to confront their respective victims.  Assume for the sake of argument that both did intend to close distance and initiate a confrontation with their victims.

    We are still left with the issue of whether or not those actions, without more, constitutes a provocation under 776.041, or whatever the parallel construct was before the statue was enacted.

    They [the jury] also were justified in believing that the deceased was not himself armed and had approached the jeep only for the purpose of disarming appellant when [Mixon] stopped and drew his gun.

    I think we will agree that Mixon intended to draw his gun; and according to other facts presented in the appellate opinion, the jury must have found that Mixon had no legal justification for drawing his gun.  In the words of the court, the jury "must have given credence to the testimony that no fish knife was ever discovered at the scene, and that the victim's pocket knife was found closed in a pocket of the trousers he wore next to his body. On the day of the homicide it was extremely cold, and he was wearing two pairs of pants."

    It was the victim's reach to Mixon that Mixon attempted to use as justification to fire his gun.  The jury found that it was Mixon's fault that the victim had a right to use force against Mixon, and my point is that Mixon's actions amount to an intentional threat to use force.

    Parent

    The effects of unintentional provocation (none / 0) (#136)
    by cboldt on Tue May 21, 2013 at 06:40:42 AM EST
    Posed another way, the question is the effect of unintentionally creating a reasonable belief in the viewer of the presence of an imminent use of unlawful force.

    Does that unintentional act constitute provocation under 776.041?  Can that unintentional act result in loss of right to self defense?  Or is the alternative the correct statement of law, that the provocation of 776.041 has to be an intentional unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent?  If intent is required, then provocation constitutes the crime of 784.011 assault.

    I don't know of a case that address the question of intent as it plays in the context of 776.041 provocation.  The provocation cases I've reviewed contain evidence that the provoker intended an act that would reasonably cause a belief of an imminent use of unlawful force, IOW, that the provoker committed assault.

    As to Martin's right to use force, the intent of Zimmerman is not an element.  What is required is that Martin reasonably believes his use of force is necessary to defend himself against Zimmerman's imminent use of unlawful force.

    Parent

    One rephrase for accuracy (none / 0) (#137)
    by cboldt on Tue May 21, 2013 at 06:45:46 AM EST
    I haven't seen a case where a lawful act constituted provocation, or where a person who DEL<del>had</del>DEL showed no intention to use force was deprived of self defense immunity.

    The distinction is that the commission of assault does not require an intention to use force.  Assault requires an intentional threat.

    An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

    Parent

    Another correction (none / 0) (#138)
    by cboldt on Tue May 21, 2013 at 07:18:07 AM EST
    Assuming for the sake of argument that a legal act (meaning the act is not within the ambit of assault) can constitute provocation under 776.041, the consequences are to the provoker, who may not reclaim the right to use force in self defense DEL_claim immunity_DEL unless he recedes and the fight continues, etc.

    A person who provokes loses the shield of 776.032 immunity.  I find that this makes sense, as the act of provocation may be an illegal act in and of itself, and the law would not give up the right to prosecute the crime just because the person was later justified in the use of force.

    Parent

    Their Relative Motions Are Important (none / 0) (#62)
    by RickyJim on Wed May 15, 2013 at 09:17:47 AM EST
    if we can determine them with certainty.  With each passing day I get more pessimistic that GPS data from Martin's and/or Zimmerman's phones will appear. From what we know at present, the word "following" is a distortion of what happened and highly prejudicial.  Based on what I know, in particular the very low visibility, it could well be that their unfortunate meeting at the T was a happenstance and not the result of either party seeking a confromtation.  Zimmerman might well have been hoping to get a view of Martin from a distance to give the police an updated location while Martin may have been wandering up and down the dogpath to lengthen his journey/phone romance home, as he had been doing since leaving the 711.

    Parent
    zimmerman (none / 0) (#67)
    by morphic on Wed May 15, 2013 at 11:23:18 AM EST
       At a walking speed of less than 4 miles an hour, Trayvon Martin would have been home before Zimmerman got off the phone, and from DD's description, Trayvon was walking so fast, more than typical walking speed, he was tired, so he would have had to reached home even sooner, and there's nothing in DD's account to explain why he was where he ended up.

    Parent
    For a Serious Discussion (5.00 / 1) (#68)
    by RickyJim on Wed May 15, 2013 at 11:46:20 AM EST
    What DeeDee says is irrelevant.  

    Parent
    your question makes no sense (none / 0) (#109)
    by TeresaInPa on Thu May 16, 2013 at 08:24:53 PM EST
    it probably sounded better in your head.  GZ followed TM in the sense that he kept him in sight enough to see where he was going to report to the cops.  Neighborhood watch..... not illegal.  

    When there is a woman in the EXACT same situation then we can try and make the comparison.  Until them, why speculate?  

    Parent

    If someone is suspicious of you in a public (none / 0) (#112)
    by Jack203 on Fri May 17, 2013 at 08:00:51 AM EST
    setting for whatever reason.  And they follow you 2-4 minutes behind.

    No, you are not allowed to try and kill them.

    Parent

    zimmerman case (none / 0) (#114)
    by morphic on Fri May 17, 2013 at 09:09:56 AM EST
       If Trayvon kept walking south for 2 to 4 minutes, he wouldn't have been anywhere near where the body was found.

    Parent
    Exactly. (none / 0) (#16)
    by Donald from Hawaii on Tue May 14, 2013 at 06:20:55 PM EST
    That said, I still think the state's attorney grossly overcharged the defendant in this case, and I'm very hard pressed to characterize Zimmerman's actions as second degree murder.

    Reckless endangerment and / or negligent homicide? Yeah, sure. Manslaughter? Perhaps, although I'm not sure about that one, either. But murder? No way. I think it's pretty clear that George Zimmerman did not get out of his vehicle with any premeditated intent to shoot and kill Trayvon Martin.

    But alight from his vehicle and pursue he did, and I think you're right -- that fact has got to eventually weigh heavily against him with a jury, because it shows him directly initiating the chain of events leading to the shooting. Had he simply stayed put, the odds are better than even that nothing of this sort would've ever happened.

    The way I see it, Mark O'Mara is going to have to get the jury to focus primarily upon the actual physical confrontation itself, and he will thus endeavor to minimize the importance or relevance of those few minutes prior to that confrontation when Zimmerman was first profiling and then following the deceased, despite being strongly urged not to do so by the 9-1-1 operator.

    OTOH, prosecutors will have to emphasize those same prior minutes in order to underscore their contention that the defendant should be held fully responsible for what subsequently happened that night, because that's actually the strongest part of their case against him.

    But the prosecution cannot under any circumstances let the event narrative be narrowly established for the jury on O'Mara's terms, because if they do, their chances for obtaining conviction will become highly problematic -- especially with those jurors who are of similar minds with me in this matter.

    Aloha.

    Parent

    Not 911, Not Strongly Urging (5.00 / 1) (#22)
    by nomatter0nevermind on Tue May 14, 2013 at 06:41:22 PM EST
    despite being strongly urged not to do so by the 9-1-1 operator.

    Not 911.

    At most the dispatcher's remark was a mild suggestion. Taken literally it was just an observation.

    Parent

    It was not a "mild suggestion." (1.00 / 1) (#25)
    by Donald from Hawaii on Tue May 14, 2013 at 06:52:57 PM EST
    The guy said specifically, "Okay, we don't need you to do that." While that's not a direct order, neither is it a passive statement.

    A mild suggestion would be, "I wouldn't do that, were I you" or "I don't think that's a good idea."

    Parent

    Much closer to a mild suggestion than (5.00 / 1) (#27)
    by Cashmere on Tue May 14, 2013 at 07:04:47 PM EST
    "strongly urging" as you initially typed.

    Parent
    Huh? (5.00 / 1) (#39)
    by redwolf on Tue May 14, 2013 at 08:48:30 PM EST
    So Zimmerman is told: "Okay, we don't need you to do that." and 40 seconds he stops following Trayvon(Listen to the tape, it's clear by his breathing that he's stopped).  Your saying because he didn't stop immediately that's he responsible for an attack that attack that happened 2-3 minutes later?  If he had stopped within 20 seconds then everything would have been fine?

    I don't see any reason to believe that Trayvon wouldn't have come back even if Zimmerman had complied immediately instead of 40 seconds later.

    Parent

    It wasn't 40 seconds (5.00 / 1) (#46)
    by ackbarsays on Tue May 14, 2013 at 09:28:29 PM EST
    it was 10 seconds.  When the operator asked him if he was following, George immediately said yes, and then when told "we don't need you to do that," it's about 10 seconds or less until you hear the sound of the wind stop as George says "he ran" and starts answering the next question from the dispatcher.

    Parent
    zimmerman (5.00 / 1) (#64)
    by morphic on Wed May 15, 2013 at 09:27:47 AM EST
       Zimmerman's breathing slows down, the wind sound stops, and you can hear Zimmerman repeatedly tapping something metallic. He's essentially standing in one place, and not following anyone. If Omara is allowed to take the jury to the scene and tap a flashlight on the sign post east of the T and it sounds exactly like the recording, you have to conclude that Zimmerman did stop following Martin.

    Parent
    Zimmerman In Motion (5.00 / 1) (#73)
    by nomatter0nevermind on Wed May 15, 2013 at 12:46:59 PM EST
    Zimmerman has admitted that he continued to Retreat View Circle after the 'don't need' exchange (reenactment, 5:59-6:47). The question is why he did so.

    I think Zimmerman tapped his flashlight on his body as he walked. He said he was walking, at a time when tapping is heard on the recording (2/29-3, 10:33-51).

    Audio

    I'm puzzled that so many people think the tapping is metal on metal. That would make a distinctive clangy sound, which I don't hear.

    Parent

    More importantly... (5.00 / 1) (#55)
    by Kyreth on Wed May 15, 2013 at 05:54:54 AM EST
    ...there's no real evidence that George continued following after that suggestion.

    After agreeing that he didn't have to follow, George continued to talk for some time without having any idea where Trayvon was, and ended up getting attacked in the same spot that he originally agreed that he didn't have to follow.

    Parent

    Same Spot? (5.00 / 1) (#74)
    by nomatter0nevermind on Wed May 15, 2013 at 12:55:23 PM EST
    ended up getting attacked in the same spot that he originally agreed that he didn't have to follow.

    Zimmerman never said it was the same spot. He was vague about where he was at the time of the 'don't need' exchange.

    Zimmerman said repeatedly that he was on his way back from Retreat View Circle at the time of the alleged attack.

    Parent

    Yes, same spot, (none / 0) (#90)
    by Kyreth on Wed May 15, 2013 at 03:46:48 PM EST
    within a few feet.  

    Parent
    How Do You Know? (5.00 / 1) (#91)
    by nomatter0nevermind on Wed May 15, 2013 at 03:52:07 PM EST
    Thoughts (5.00 / 1) (#29)
    by Jack203 on Tue May 14, 2013 at 07:15:07 PM EST
    "because it shows him directly initiating the chain of events leading to the shooting."

    No it doesn't.  The "direct initiation of the chain of events" could be better described as the assault by TM.  

    "Had he simply stayed put, the odds are better than even that nothing of this sort would've ever happened."

    GZ would almost certainly not have been assaulted if he stayed in the car.

    "Zimmerman was first profiling "

    There is ZERO evidence of this.

    "and then following the deceased, despite being strongly urged not to do so by the 9-1-1 operator."

    Following is not a crime and not worthy of being assaulted over.  He was 2-4 minutes behind TM.  Being advised he didn't have to follow was not an order.  He also was asked by the NEN where TM was going.

    Parent

    The NEN operator also..... (5.00 / 1) (#32)
    by Cashmere on Tue May 14, 2013 at 07:29:01 PM EST
    asked Zimmerman to let them know if he (meaning Martin) did anything else.  This was before Zimmerman was told that they did not need him to follow, and presumably before Zimmerman exited his car.  This gets very little attention which I don't quite understand.  The NEN operator was giving Zimmerman clear signals to keep an eye on Martin before Zimmerman exited his car.  This can all be verified by listening to the NEN call.  

    Parent
    Interpretation. (3.50 / 2) (#34)
    by nomatter0nevermind on Tue May 14, 2013 at 07:31:12 PM EST
    I don't agree that 'let me know . . .' implies 'keep an eye on'.

    Parent
    Perhaps "observe" is a a better (5.00 / 1) (#36)
    by Cashmere on Tue May 14, 2013 at 07:40:18 PM EST
    interpretation? It is not a jump to interpret "let me know if"... implies anything other than pay attention or observe.  That is how I would interpret it, but you may interpret it as, let me know if anything else happens that draws your attention as you go about normal business.  Seems a stretch to me.

    Parent
    Zimmerman could have... (1.00 / 1) (#41)
    by unitron on Tue May 14, 2013 at 09:04:01 PM EST
    ...remained in his truck and said "He just ran out of sight", and that would have been letting them know if Martin had done anything else.

    Sean didn't need to tell Zimmerman to keep an eye on Martin as it was obvious that Zimmerman was already doing that. He just asked to be informed if anything changed (from Martin was walking).

    Parent

    Could have. (none / 0) (#44)
    by leftwig on Tue May 14, 2013 at 09:08:38 PM EST
    Could have done several things that made sense and getting out of his vehicle was reasonable to answer the request, "which way is he running".  He could have said I don't know, he's out of site, or he could try to get to a location where he could see which way he was running.  Either seems quite reasonable, especially for a NW leader who all too often saw guys get away.

    Parent
    That Doesn't Explain (none / 0) (#40)
    by RickyJim on Tue May 14, 2013 at 08:53:45 PM EST
    Why Zimmerman kept moving straight ahead instead of returning to his car, 15 seconds after leaving it, after saying "Okay" to the dispatchers, "We don't need you to do that".  The reasons he gave for not taking the dispatcher's advice will be a defense problem at the trial, especially if he takes the stand.

    Parent
    I'm sure it will be brought up by the prosecution, (none / 0) (#42)
    by leftwig on Tue May 14, 2013 at 09:04:17 PM EST
    but, the dispatcher didn't ask GZ to return to his vehicle of even hint that it might be a good idea.  The dispatcher also didn't ask GZ to be in/at his vehicle to meet police (suggested at the mail boxes).  I imagine if he does testify (doubtful) that he will say he was out of his vehicle to try and see where TM ran and to find an address.  Reasonable and true?  I don't know, but I don't think the prosecution has any evidence to dispute it unless the ping logs/gps data reveal something we are unaware of.

    Parent
    Can't let that go... (5.00 / 1) (#45)
    by ackbarsays on Tue May 14, 2013 at 09:23:45 PM EST
    You say Zimmerman was "strongly urged not to follow Trayvon" by the 911 operator.  That's simply not true, just like all the people who say the 911 operator told Zimmerman to get back in his truck, told him not to get out of his truck, told him to stay put, etc..   The 911 operator asked him a question AFTER he was out of his truck, already down the path toward the T.  George answered that yes, he was indeed following Trayvon. The 911 operator told him "we don't need you to do that."  At this point, George can be heard to stop walking a few seconds later after he says "okay" to the comment from the 911 operator.  However, that was NOT a command or a "strong urging" from the 911 operator that he not follow Trayvon. It's not even accurate to say the 911 operator asked George to stop following Trayvon.  He did nothing of the sort - he simply made it clear that George was not expected to follow the suspect that he was reporting.  

    I've gone over to my parents' house and started trimming some trees, and my mom will see me and say "we don't need you to do that." When she says that, she doesn't mean "stop doing that right now."  She means "we don't really need the help because we have someone that comes by and trims the trees for us regularly."  If there were some problem and she wanted me to stop, she'd tell me "stop doing that."

    Sorry, I don't mean to harp on this one little thing, but it's not really a little thing.  It's one of the most widely-misunderstood facts among the general public, who have heard thousands of times that George hunted Trayvon down in cold blood after being told to stay in his truck.

    Parent

    That is Not the Complete Picture (1.00 / 1) (#49)
    by RickyJim on Tue May 14, 2013 at 10:28:52 PM EST
    The problem that caused Zimmerman to have trouble with Serino and Singleton and that certainly will be brought up in trial is the following sequence:

    1. Zimmerman leaves truck while telling dispatcher Martin is running towards the back entrance.  On a previous NEN call, faced with the same situation, he told the dispatcher he would meet the cops at the back entrance and let them in there.  There was no need on 2/26/12 to leave the truck.

    2. Fifteen seconds later, after "We don't need you to do that" -- "Okay", he doesn't do anything differently than if the dispatcher said nothing.  He keeps walking forward, past the T to Retreat View Circle.

    3. To explain his behavior he made varying excuses claiming he needed to find a street sign or house address even though the dispatcher didn't ask him for any and he could have gotten one more quickly by staying in his car and finally he never gave such an address to the dispatcher.


    Parent
    Nothing different? (5.00 / 1) (#50)
    by MJW on Tue May 14, 2013 at 11:42:36 PM EST
    Fifteen seconds later, after "We don't need you to do that" -- "Okay", he doesn't do anything differently than if the dispatcher said nothing.  He keeps walking forward, past the T to Retreat View Circle.

    If he were intent on following Martin, and the dispatcher said nothing, wouldn't he have turned down the T, the direction Martin went, instead of walking past it, and therefore away from Martin?

    Parent

    Retreat View Circle (none / 0) (#53)
    by nomatter0nevermind on Wed May 15, 2013 at 05:33:25 AM EST
    It was dark between the buildings, and Zimmerman's flashlight wasn't working.

    On Retreat View Circle there were streetlights, and a view of Martin's likely paths to the back entrance.

    Parent

    Not 911 (none / 0) (#52)
    by nomatter0nevermind on Wed May 15, 2013 at 05:26:24 AM EST
    Zimmerman reported Martin with a non-emergency call.

    Sanford police dispatcher:
    [quote]Sanford Police Department. This line is being recorded. This is [name].[/quote]

    Sanford 911 dispatcher:
    [quote]Nine one one. Do you need police, fire, or medical?[/quote]

    Records also identify Zimmerman's February 26 call as non-emergency (p. 46). In the header for each record, after 'call source:', 911 calls have '911', non-emergency calls have 'TEL'.

    Parent

    Florida Law (none / 0) (#18)
    by nomatter0nevermind on Tue May 14, 2013 at 06:26:29 PM EST
    In Florida, negligent homicide is a subcategory of manslaughter.

    Also in Florida, justification is an absolute defense to manslaughter.

    'It wouldn't have happened if Zimmerman hadn't done X', doesn't get the prosecution out of the need to rebut the claim of justification.

    That is why I have always maintained that Serino's capias is bogus, an exercise in CYA and buck-passing.

    Parent

    The state has more than one emphasis (none / 0) (#19)
    by cboldt on Tue May 14, 2013 at 06:29:22 PM EST
    I know it's pretty normal for these threads to get sidetracked, and I hope you aren't offended that I have a question that tries to bring it back to the subject of the thread.

    You say the prosecutors have to emphasize the minutes before the physical struggle; but the subject is the prosecutor's emphasis on the sounds during (or after, if you adopt Reich's findings) the physical struggle.  Do you find the prosecutor's experts weak, and hence think the need to focus attention away from the experts, and to Zimmerman's decision to get out of his truck?  Or do you see the state's case as plausible in both areas?

    Parent

    Were I the judge, ... (3.00 / 2) (#24)
    by Donald from Hawaii on Tue May 14, 2013 at 06:48:49 PM EST
    ... that so-called "expert" testimony would not be allowed to be presented.

    Seriously, I've heard the tape, and in my opinion, I believe it sounds like a teenager in distress. But honestly, I cannot say so with 100% certitude, and I think that's key here. I've heard enough recordings in my life to know that pitch and tone can be altered markedly, depending upon the speed in which it's played back to the listener. Therefore, I find such opinions to be entirely subjective, and opinion is not fact.

    Anyway, it's just my opinion, but I think the prosecution would be foolish to overemphasize this aspect of the case.

    Aloha.

    Parent

    Glad you're not 100% certain it was a teenager (none / 0) (#31)
    by Jack203 on Tue May 14, 2013 at 07:25:59 PM EST
    "Seriously, I've heard the tape, and in my opinion, I believe it sounds like a teenager in distress. But honestly, I cannot say so with 100% certitude"

    You're fooling yourself if you think you can tell anything other than a 50/50 chance the difference in high pitched screen between a 17 year old and a 28 year old you've never met.  

    Let alone with a cr@ppy recording, yards away, through the rain.  

    Parent

    The Witness No. 8 stuff is ... (1.00 / 1) (#20)
    by Donald from Hawaii on Tue May 14, 2013 at 06:30:52 PM EST
    ... pure sideshow. No doubt, the defense will do what it has to do to impeach that witness's testimony and then try to play up the importance of that testimony to the prosecution's case -- but honestly, Zimmerman's fate probably isn't going to be determined by any of that.

    Parent
    Witness 8 (none / 0) (#47)
    by ackbarsays on Tue May 14, 2013 at 09:32:37 PM EST
    is the entire basis for the Affidavit of Probable Cause.

    Parent
    zimmerman (none / 0) (#104)
    by morphic on Thu May 16, 2013 at 02:52:00 PM EST
       If it's true that GPS-A is accurate to within ten feet, why won't they release the ping logs? They've been used in other cases, and very difficult to refute.

    Parent
    Ping Logs (none / 0) (#105)
    by nomatter0nevermind on Thu May 16, 2013 at 03:02:39 PM EST
    It's my understanding that the ping logs have not been made public because, as telecommunications, they are subject to different rules than other evidence.

    Parent
    Does Ping Logs Mean GPS Data? (none / 0) (#106)
    by RickyJim on Thu May 16, 2013 at 03:45:03 PM EST
    I was under the impression that a Ping Log just indicates the nearest cell phone tower which generally is much more than 10 feet from the caller.  As far as GPS data from Martin's phone for Feb. 26, from various remarks made by O'Mara, it apparently doesn't exist but why has never been made public.  What sort of data exists for Zimmerman's phone is also a mystery.  I know of no current court motions on these matters.

    Parent
    Ping/GPS (none / 0) (#107)
    by nomatter0nevermind on Thu May 16, 2013 at 07:22:14 PM EST
    Ping logs show all the towers in range of the phone, and the distance to them. The data can be triangulated to get an approximate position.

    GPS is completely different. It uses satellites to track the phone's position.

    Parent

    Recommended Reading (none / 0) (#108)
    by RickyJim on Thu May 16, 2013 at 08:18:49 PM EST
    I've read here that triangulation with towers can locate the caller within 100 feet but with newer equipment (as of 2008)
    New generation cell phones and mobile service providers are required by federal mandate, via the "E-911" program, to be or become GPS capable so that 911 operators will be able to determine the location of a caller who is making an emergency phone call. When a new digital cell phone is pinged, it determines its latitude and longitude via GPS and sends these coordinates back via the SMS system (the same system used to send text messages). This means that in instances where a fugitive or other missing person has a GPS enabled cell phone (and that the phone has power when being polled, or pinged) that the cell phone can be located within a reasonable geographic area- some say within several feet of the cell phone.

    So did Sean the dispatcher know exactly where Zimmerman was and could have told me the name of the street?  :-)

    Parent
    The state is counting on emotion (none / 0) (#9)
    by cboldt on Tue May 14, 2013 at 05:11:24 PM EST
    If the state can be persuaded to file charges based on this evidence, then it's not much of a stretch to find that the state thinks it can convince a jury to do the same thing.  The jury decision won't be based on sound application of legal principle, it will be capitulation to prejudice or the mob.  It happens.  Both by prosecutors, and by juries.

    Parent
    in fairness (none / 0) (#11)
    by nyjets on Tue May 14, 2013 at 05:33:28 PM EST
    getting a jury verdict based on emotion is a tactic used by a lot of trial lawyers whether prosecution or defense, criminal or civil.

    Parent
    That does not make it right. eom (none / 0) (#14)
    by Cashmere on Tue May 14, 2013 at 06:15:03 PM EST
    eom

    Parent
    This (none / 0) (#38)
    by leftwig on Tue May 14, 2013 at 08:36:35 PM EST
    is exactly the reason judges are required to prevent cases from getting to a jury's decision unless the evidence meets a minimum threshold.  Juries will often acquit an individual based on emotion.  I can't recall any big cases where a jury convicted anyone based on emotion.  There has to be actual evidence of a crime before a jury can pass down a verdict.

    The question for this thread is, does anything the prosecutions experts have to offer actually provide any admissible evidence of a crime?

    Parent

    In many instances, a proposed expert (none / 0) (#21)
    by scribe on Tue May 14, 2013 at 06:34:38 PM EST
    having his report/testimony excluded under Frye or Daubert is something close to a fatal wound to his career in expertising.  

    Every time he tries to testify in the future, he'll wind up spending time being cross-examined about how he screwed up so badly that the court excluded his testimony.  Then counsel will examine him in detail on his methodology, underlying theoretical paradigms and the authoritative texts/resources he relied upon, to see whether he's changed anything since being excluded.  Regardless of whether he did or didn't change them post exclusion, he can't win.  If he changed his methodology it implies (and counsel will argue) he's just casting about for something to preserve his career.  If he doesn't change his methodology (totally), then he's still relying upon the discredited way he went about things in the past.

    Counsel looking to hire experts will often just refuse to hire someone who's been excluded for failing Daubert or Frye, just to avoid the kinds of problems and distractions I've mentioned.  And that's why the expert's career in expertising is almost fatally wounded by such exclusions.

    In other words, the prosecution is so desperate they'll hire anyone who promises to support their theory of the case, whatever that might be....

    One Contrary VIew (none / 0) (#30)
    by RickyJim on Tue May 14, 2013 at 07:20:40 PM EST
    Not everybody has the negative opinion of the reports given here.  Bill Schaeffer, the resident "legal analyst" at WFTV, Orlando says
    It may be the defense's biggest nightmare...

    In the end, you may back the battle of the experts and the jury will be left to sort it out....But Sheaffer said the science isn't new and it's likely the judge will allow it.

    "The judge is likely to find, 'I think I'm going to let this in, let the jury hear it, let the jury decide what weight or credibility to give these expert witnesses,'" said Sheaffer.

    Since he knows more about Florida Courts than we do, maybe he is right.  His "the science isn't new" seems to imply very low Frye standards in that state.

    Overlooked Point (none / 0) (#33)
    by nomatter0nevermind on Tue May 14, 2013 at 07:29:09 PM EST
    Hollien/Harnsberger doesn't help the prosecution even if its attributions are accepted. They only attribute unintelligible vocalizations. They seem to dismiss as an 'illusion' that anyone was calling for help.

    Witness #6 Heard Help! (none / 0) (#35)
    by RickyJim on Tue May 14, 2013 at 07:35:03 PM EST
    And he was maybe 15-20 feet from the shouter and outside when he heard it.  The audio sample the experts worked with was picked up inside an adjoining house and transmitted to a call center over a cellphone.

    Parent
    Good Point (none / 0) (#37)
    by nomatter0nevermind on Tue May 14, 2013 at 07:47:25 PM EST
    The 'illusion' comment in the report only applies to the recording. My wording was poor.

    Parent
    I've always thought (none / 0) (#58)
    by Kyreth on Wed May 15, 2013 at 07:36:33 AM EST
    that it was likely that the yelling started well before the recording started.  George's cries for help were probably more clear, turning into more intelligable yelps of pain as he continued taking injury, which is what the recording picked up.

    Parent
    Yelled? (none / 0) (#54)
    by nomatter0nevermind on Wed May 15, 2013 at 05:39:33 AM EST
    I don't believe Zimmerman ever said Martin 'yelled' that line. The verb he use was 'said'.

    The only line Zimmerman said that Martin 'yelled' was '"Yo, you got a problem?"'

    Your Opinion (none / 0) (#79)
    by nomatter0nevermind on Wed May 15, 2013 at 01:40:54 PM EST
    Not what Zimmerman said.

    Parent
    Excellent argument! (5.00 / 1) (#93)
    by MJW on Wed May 15, 2013 at 04:05:14 PM EST
    Because GZ said "runiing" and "skipping," I, too, conclude he made it clear TM raised his voice.

    Did he raise it louder than W6's voice when W6 told GZ and TM that he was calling the police?

    Parent

    this thread is now closed (none / 0) (#142)
    by Jeralyn on Tue May 21, 2013 at 02:32:32 PM EST
    It's devolved into insults and spats between commenters. Yman is warned to stop baiting and insulting others. Also, comments interpreting the law in this thread should not be viewed as accurate. They are the opinion of the writer and may be or may not be correct.