Gary84Clark
07-02-2013, 11:36 PM
OTM - To a certain degree, you are correct and I am in full agreement with you. You cannot resort to deadly force simply b/c you are losing a fight. You can, however, resort to deadly force w/out being guilty of manslaughter or murder if (1) you are losing a fight, (2) in fear of your life - and (3) are not responsible for starting the fight.
If you start a fight, begin to lose it but have no reasonable fear for your life, and kill someone, that's murder 1 (By the way, this is the scenario applicable to my following G84C, him starting a fight, me kicking his butt and him shooting me. So long as all I do is kick his ass in a fight and pull off when he inevitably starts screaming for help).
If you start a fight, begin to lose and have reasonable fear for your life, and use deadly force, that's murder 2 (This is the scenario applicable to my following G84C, him starting a fight, me going beyond just beating him, and him shooting me);
If both parties enter into mutual combat (e.g. - two guys in a bar say "let's take it outside"), one begins to lose but has no reasonable fear for his life and kills his opponent anyway, murder 2.
If both parties enter into mutual combat, one begins to lose, has reasonable fear for his life and kills his opponent, manslaughter.
If a party does not start the fight, begins to lose, then has reasonable fear of his life, and kills his opponent - innocent.
[Disclaimer: I am not a criminal lawyer. The various degrees and factors going into determining the "level" of a homicide are dependent on State law and are not particularly straightforward. The breakdown above is based on some research I had previously done and my understanding of certain basic principles].
Here, there is clear evidence of a fight between Martin and Zimmerman. For any charge to stick, however, the Prosecution must prove beyond a reasonable doubt that either Zimmerman started the fight or there was an agreement (tacit or otherwise) between Z and TM to enter into mutual combat. Unless I missed it, there is simply no evidence of who started the fight (who moved it from a verbal confrontation to a physical one). There is lots and lots of speculation based on what people believe the parties were thinking or who the type of person they believe TM or Z to be.
I simply don't think the evidence to date does (or ever will) show how this fight started. B/c of that, I don't think, as a matter of law, the prosecution can prove its case. To me, it's that simple. For those who say, well, it's Martin's word against Z and Martin is dead. True enough. But unless you are willing to radically and fundamentally change the burden we place on the State when trying to deprive a person of their life or liberty, it's the price we pay for requiring innocent until proven guilty. Worse men than Z have been found innocent of much worse for lack of the dead witness.
However, I am sure that the prosecution is hoping for folks like you, OTM, on the jury. "There's a dead kid. I don't care about legal elements, burden of proof, or innocent until proven guilty ... You can't kill shoot a kid just b/c you got in his face and he may have over reacted. Hell, for all we know, you started the fight. You better prove to me you didn't start this and that you really were in fear of your life."
Until the EMT and Good testified, I think the prosecution has a good chance of accomplishing (what I presume to be) its goal. Before then, they had Z following and confronting Martin, confusion, a fight and a dead kid with Z ending up on top.
After the EMT and Good, the details changed a bit. Good made it clear there was a point where TM was on top and appeared to be hitting Z with Z clearly yelling for help. The EMT testified that a person in Z's condition and on his back would have blood running down his throat, be likely feeling the effects of brain or concussive injuries and would probably be in reasonable fear for his life. IMHO, These two witnesses provided enough evidence to create a prima facia showing of reasonable fear of life on Z's part -- without the need for Z's testimony -- such that the burden again shifts to the State to prove Z wasn't reasonable in that fear.
Maybe your view prevails OTM. Perhaps, despite the lack of evidence, the State's burden to show who started this fight, and the protections against self-incrimination, maybe emotion prevails and Z's failure to testify dooms him.
Personally, I hope the rule of law prevails and that innocent until proven guilty beyond a reasonable doubt by the State through legally admissable evidence remains the standard.
Two figures tussling on the ground then one pulls out a gun, bloody murder!!!!
If you start a fight, begin to lose it but have no reasonable fear for your life, and kill someone, that's murder 1 (By the way, this is the scenario applicable to my following G84C, him starting a fight, me kicking his butt and him shooting me. So long as all I do is kick his ass in a fight and pull off when he inevitably starts screaming for help).
If you start a fight, begin to lose and have reasonable fear for your life, and use deadly force, that's murder 2 (This is the scenario applicable to my following G84C, him starting a fight, me going beyond just beating him, and him shooting me);
If both parties enter into mutual combat (e.g. - two guys in a bar say "let's take it outside"), one begins to lose but has no reasonable fear for his life and kills his opponent anyway, murder 2.
If both parties enter into mutual combat, one begins to lose, has reasonable fear for his life and kills his opponent, manslaughter.
If a party does not start the fight, begins to lose, then has reasonable fear of his life, and kills his opponent - innocent.
[Disclaimer: I am not a criminal lawyer. The various degrees and factors going into determining the "level" of a homicide are dependent on State law and are not particularly straightforward. The breakdown above is based on some research I had previously done and my understanding of certain basic principles].
Here, there is clear evidence of a fight between Martin and Zimmerman. For any charge to stick, however, the Prosecution must prove beyond a reasonable doubt that either Zimmerman started the fight or there was an agreement (tacit or otherwise) between Z and TM to enter into mutual combat. Unless I missed it, there is simply no evidence of who started the fight (who moved it from a verbal confrontation to a physical one). There is lots and lots of speculation based on what people believe the parties were thinking or who the type of person they believe TM or Z to be.
I simply don't think the evidence to date does (or ever will) show how this fight started. B/c of that, I don't think, as a matter of law, the prosecution can prove its case. To me, it's that simple. For those who say, well, it's Martin's word against Z and Martin is dead. True enough. But unless you are willing to radically and fundamentally change the burden we place on the State when trying to deprive a person of their life or liberty, it's the price we pay for requiring innocent until proven guilty. Worse men than Z have been found innocent of much worse for lack of the dead witness.
However, I am sure that the prosecution is hoping for folks like you, OTM, on the jury. "There's a dead kid. I don't care about legal elements, burden of proof, or innocent until proven guilty ... You can't kill shoot a kid just b/c you got in his face and he may have over reacted. Hell, for all we know, you started the fight. You better prove to me you didn't start this and that you really were in fear of your life."
Until the EMT and Good testified, I think the prosecution has a good chance of accomplishing (what I presume to be) its goal. Before then, they had Z following and confronting Martin, confusion, a fight and a dead kid with Z ending up on top.
After the EMT and Good, the details changed a bit. Good made it clear there was a point where TM was on top and appeared to be hitting Z with Z clearly yelling for help. The EMT testified that a person in Z's condition and on his back would have blood running down his throat, be likely feeling the effects of brain or concussive injuries and would probably be in reasonable fear for his life. IMHO, These two witnesses provided enough evidence to create a prima facia showing of reasonable fear of life on Z's part -- without the need for Z's testimony -- such that the burden again shifts to the State to prove Z wasn't reasonable in that fear.
Maybe your view prevails OTM. Perhaps, despite the lack of evidence, the State's burden to show who started this fight, and the protections against self-incrimination, maybe emotion prevails and Z's failure to testify dooms him.
Personally, I hope the rule of law prevails and that innocent until proven guilty beyond a reasonable doubt by the State through legally admissable evidence remains the standard.
Two figures tussling on the ground then one pulls out a gun, bloody murder!!!!