Oscar Pistorius: The four legal rules that determine his legal responsibilities

Wednesday, October 15, 2014

Good evening:

I do not agree with Judge Masipa’s reasoning and I write to clear up confusion.

There are four legal rules involved in determining Oscar Pistorius’s legal responsibility for Reeva Steenkamp’s death.

1) Dolus eventualis;
2) Transferred intent;
3) Presumption of innocence; and
4) Self-Defense.

Dolus eventualis basically means that a person intends the natural and probable consequences of their acts because they are reasonably foreseeable.

Death was a natural and probable consequence to anyone, regardless of their identity, who was behind the wooden door in a confined area with nowhere to hide like the toilet cubicle in Oscar Pistorius’s house, when he fired 4 shots at point blank range with a 9 mm semiautomatic loaded with Black Talon ammunition through the door. For that reason, that consequence should have been reasonably foreseeable to Pistorius when he fired the shots.

Transferred intent means that, even if Pistorius did not intend to kill Reeva and he believed an intruder was behind the door when he fired the shots, his intent to kill the intruder transfers by operation of law to intent to kill her.

The presumption of innocence means that a person cannot be convicted solely on the basis of a presumption that he intended to kill the person behind the door. There must be actual evidence that he intended to kill.

Here, there is circumstantial evidence that he intended to kill based on the type of ammunition used, the number of shots, their spacing and trajectory, and finally the distance from which the shots were fired.

Finally, self-defense can be ruled out because the person behind the door did not threaten to kill Pistorius and did not attempt to open the door and attack him. Therefore, he was not in imminent danger of death or serious injury when he fired the shots. His use of deadly force was not reasonably necessary.

Therefore, whether he actually intended to kill Reeva is not relevant to the issue of guilt, although it may be a relevant consideration at sentencing.

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Will the defendant testify or not testify?

Saturday, July 6, 2013

Good afternoon:

I write regarding whether the defendant should testify.

I advised my clients not to testify, unless there was some specific reason why I believed they had to testify. That reason typically would involve testifying about something that the jury would not otherwise know unless the client testifies. This is a common occurrence is self-defense cases and why most lawyers will say that a client must testify in such a case.

As Assistant State Attorney Richard Mantei said yesterday, the use of deadly force in self-defense is unlawful unless the defendant reasonably believed that he was in imminent danger of being killed or suffering serious injury when he used deadly force. The reasonableness requirement means that the defendant’s conduct must be evaluated objectively by comparing his conduct to the conduct of a reasonable person in the same situation.

The jury of 6 women, 5 of whom are mothers, will decide whether the defendant acted reasonably.

The defendant is the only person who can tell them whether he believed he was in such danger when he shot Trayvon Martin. According to various witnesses who have testified, he described a situation to them that, if true, probably would objectively constitute such a danger. For the past year, his lawyer, Mark O’Mara has been aggressively selling the defendant’s story on national television and waiving the two bloody cell phone photographs of the back of the defendant’s head and his face as proof that the defendant acted reasonably. I think the national media has uncritically accepted O’Mara’s sales job and shamelessly promoted it.

The critical question, however, is whether the 6 women, 5 of whom are mothers, believe what the defendant told others. They are not required to believe anything he said. I doubt they will believe him, given his many contradictory statements, implausible claims, and the forensic evidence, particularly the DNA evidence, which proves that Trayvon Martin did not hit him 20-30 times in the face, grab his head and repeatedly slam it into a concrete sidewalk, or attempt to smother him by placing his hands over the defendant’s nose and mouth.

I believe the prosecution has proved beyond a reasonable doubt that the defendant provoked the encounter with Trayvon Martin by following him in a vehicle and then on foot after Trayvon attempted to elude him. He hunted him down and attempted to restrain him contrary to a request by the police dispatcher not to follow him and he never identified himself or explained why he was restraining him. Under these circumstances, Trayvon Martin was entitled to use reasonable force to defend himself, escalating to deadly force when the defendant pulled out his gun. Therefore, Trayvon Martin used lawful force to defend himself and the defendant’s use of force was unlawful.

If he were my client, I would tell him that this is my assessment.

If he responded with, “What about my mother identifying me as the person who screamed?” I would say she did not do so unequivocally. Sybrina Fulton did and she was credible.

I would tell him that he gets to make the call regarding whether to testify. Given my assessment that the jury is going to convict him, I would also tell him that his only chance to avoid conviction would be to testify and persuade those 6 women, 5 of them mothers, that they should not convict him.

I would explain the following information.

The burden of proof in all criminal cases in this country is on the prosecution to prove beyond a reasonable doubt that the defendant committed the crime charged. The defendant is presumed innocent throughout the trial and the jury must find him “not guilty” unless the prosecution overcomes the presumption of innocence by proof beyond a reasonable doubt.

The term “beyond a reasonable doubt” is generally defined as such a doubt as would exist in the mind of a reasonable person after fully and fairly considering all of the evidence or lack of evidence. The prosecution is not required to prove guilt beyond all doubt, just beyond a reasonable doubt. Generally, a reasonable doubt is a doubt for which a reason exists, as opposed to a speculative doubt or a mere suspicion. The Florida instruction states that a person is convinced beyond a reasonable doubt if they have an abiding belief in the truth of the charge. An abiding belief is a long lasting belief. The idea is that a juror is convinced beyond a reasonable doubt if they are sure that they will not change their mind sometime in the future due to some doubt they have about the strength of the evidence.

The definition of reasonable doubt is circular, which frustrates jurors who expect and want reasonable doubt quantified. For example, preponderance of the evidence, which is the burden of proof in a civil case, is defined as proving that a proposition is more likely so than not so or supported by more than 50% of the evidence. There is no equivalent percentage of certainty used to define reasonable doubt. I believe most trial lawyers and judges would agree that it’s possible that different juries hearing the same case could reach different conclusions. This is why attorney voir dire during jury selection and the use of cause and peremptory challenges to select a jury are so critically important.

Our legal system guards and protects the sanctity of the jury room and juror deliberations. A jury is never required to explain or justify its verdict. As a result, a jury actually gets to decide what constitutes reasonable doubt, even though they are never told that they have this power. The jury is a reflection of the community and it acts as the conscience of the community when it decides whether the prosecution has proved the defendant’s guilt beyond a reasonable doubt.

I would tell him that if he can express his humanity and touch their hearts, he has a chance at manslaughter.

I would also tell him that he must tell the truth without any bullshit like he uttered on the Hannity Show.

He must admit when he lied, to whom he lied, and why he lied.

He must convince them that he acted out of fright, not anger.

I think he’s going to testify for all the wrong reasons because he has always been able to lie his way out of trouble.

Ain’t going to work this time.

I have one final reason for believing he will testify. His lawyers did not voir dire the prospective jurors on his right to remain silent and not testify. I always did that in my cases to make sure the jurors understood that they could not use his silence against him by presuming he had something to hide.

Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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No immunity hearing in Zimmerman case

Tuesday, March 5, 2013

At today’s hearing, Judge Nelson asked Mark O’Mara if he still needed the two weeks she had set aside in April for the defendant’s immunity hearing.

He responded, “No.”

Does this mean that the defendant will be waiving his right to an immunity hearing?

I believe the answer is, “Yes.”

Although O’Mara has previously suggested that the immunity hearing and the trial be combined, I do not believe that makes any sense for the following reasons.

The purpose of the immunity hearing is to determine whether there is any need for a trial. If the judge grants the defendant’s motion for immunity, there is no trial and no jurors need be summoned to come to court. No time has to be reserved for the trial.

There is no reason to have an immunity hearing, unless it takes place before the trial.

The defense goes first in the immunity hearing and has the burden of proving by a preponderance of the evidence that the defendant acted in self-defense, As a practical matter, this means the defendant must testify.

The defense has no burden of proof in the trial. The defendant and the prosecution must go first and the defendant is presumed innocent.

Combining the two hearings would, in effect, deny the presumption of innocence to the defendant and that would be a major constitutional error requiring reversal.

Judge Nelson and BDLR certainly know that.

The judge is not going to go through 2-3 weeks of jury selection if that is not necessary.

Therefore, MOM has in effect waived the immunity hearing.

BOTTOM LINE: The defense cannot risk putting the defendant on the stand at an immunity hearing because of the tsunami of extremely negative publicity that would result from the evisceration of the defendant on cross by the prosecution.

O’Mara does not want to admit that his client is not credible and I can understand why because the physical and forensic evidence refutes everything he says and he has given so many contradictory and inconsistent statements about what happened that with only eight exceptions, no one will believe anything he says.

The eight exceptions are:

1. I got in my truck.

2. I followed him in my truck.

3. He ran.

4. I got out of my truck.

5. Fucking coons (or if you prefer, fucking punks).

6. These assholes, they always get away.

7. Tell the officer (that was dispatched to the neighborhood) to call me on my cell phone when he gets here so that I can tell him where to find me.

8. I shot him (Trayvon Martin).

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Trayvon Martin’s Murder Forces Us To Confront Racism

Thursday, December 27, 2012

I realized the defendant was lying when I first read his narrative about the shooting.

Why?

Because I believe it’s extremely unlikely that an unarmed person would flee from a menacing stranger following him and, after successfully getting away, voluntarily approach, engage and attempt to beat that stranger to death with his bare hands.

That story is ridiculous. It made no sense to me when I first read it and it makes no sense to me now.

With two exceptions, I never have understood why anyone would believe that ridiculous story.

As a former criminal defense attorney and law professor, I certainly understand, support and believe in the presumption of innocence. I trained myself to think that way and always searched for the weaknesses in the prosecution’s case against my clients. I had no problem exploiting those vulnerabilities for the benefit of my clients. I suspect that most of the lawyers and law professors who have publicly supported the defendant did so from the perspective of presuming that he spoke the truth.

Since I no longer practice or teach law, I believe I can evaluate this case from a more objective perspective.

I cannot and will not presume that an obvious bullshit story is the truth.

I have reviewed all of the evidence released to the public to date and I have not found any evidence that supports the defendant’s story. Instead, his multiple inconsistent and contradictory statements conflict with the physical and forensic evidence. In fact, he has admitted that he shot and killed Trayvon Martin after he had him under control with a wrist lock. He said he pulled out his gun, extended his right arm, aimed to avoid shooting his left hand, and fired the single shot that killed Trayvon Martin. The terrified, prolonged and desperate shriek protesting the depraved execution that was about to occur finally and forever was silenced by the gunshot.

No one is going to believe that the defendant uttered that inhuman shriek with a loaded gun in his hand.

I feel obliged to remind my former colleagues that the presumption of innocence does not require them to blindly accept a liar’s story and actively defend that liar by supporting his effort to demonize an innocent victim and his parents. I am offended, horrified and disgusted by the unrelenting attacks on Trayvon, his family and their supporters. I have no respect for anyone who participates in or supports those attacks, including members of the mainstream media who publicize them, and by so doing, legitimize them.

Enough is enough.

We do not need or want to hear any more lying racist Zimmermans polluting the news.

The Trayvon Martin murder case is much more than a set of hypothetical facts to be discussed in a classroom. It is a real case involving real people and I think our responses to this tragedy reveal much about ourselves as individuals and as a society.

For example, in order to believe the defendant’s story, one would have to believe that Trayvon Martin acted like a stereotypical Black Gangsta thug in a Hollywood action movie. Would any Caucasian person believe the defendant’s story, if the person he killed were Caucasian?

Is it not easier for Caucasians to believe his story because the victim is Black?

I believe we would not have heard about this case, if Trayvon Martin had been a Caucasian kid. The defendant would have been arrested and jailed that first night. He would have been charged with second degree murder and prosecuted without any of the publicity and controversy that we have seen.

The most important lesson of this case is that racism is alive and well in our nation. The defendant’s characterization of Trayvon Martin presents each one of us with a litmus test. Those who accept and believe what he said are failing the litmus test and seriously need to ask themselves why they were so willing to believe such an obvious lie.

Those who continue to believe the defendant in the face of overwhelming evidence that he is a liar may be beyond help.

We live in a racist society and nothing will change unless we admit that we do and we commit to ending racism. As always, the self is the place to start changing society.

Trayvon Martin will not have died in vain if his death becomes the rallying point for a systematic, determined and prolonged effort to once and for all eliminate racism in our society.

Unless we succeed, we will remain a racist and failed society.

Zimmerman: Be Wary of the Power of Belief to Shape Perception

Searching Mind and I have been arguing about why Jeralyn Merritt continues to support George Zimmerman’s claim of self-defense.

SM says her belief may be based in a psychosexual fascination or fatal attraction for George Zimmerman. I disagree.

I believe our disagreement provides one of those proverbial teaching moments, so I have decided to post my latest response to SM as a new article rather than a comment and solicit your views.

DISCLOSURE: I have known Jeralyn since 1995 when I met her at a conference of the National Association of Criminal Defense Lawyers. We were both members of the Board of Directors and got to know each other on a professional basis due to our work as directors. I characterize our relationship as professional acquaintances rather than friends because we have never shared any personal information.

This is my answer.

I strongly disagree with Jeralyn’s opinion about this case and I disagree with your opinion about why she holds that opinion.

I also believe that it’s sexist to attribute her belief in George Zimmerman’s innocence to a psychosexual fascination or fatal attraction to him. I regard your opinion as a form of demonization.

No one should make an accusation like that unless they can prove it and I seriously doubt you can prove it.

Do not make the mistake of underestimating a criminal defense attorney’s passionate embrace of the presumption of innocence in the face of overwhelming evidence of guilt. I spent most of my adult life looking at the world from that perspective and I can assure you that I did not regard it as a mere intellectual pretension to be uttered in social situations to politely remind people who we are and what we do. I lived it and breathed it into being. I walked my talk. A lot of people thought I was crazy to do that. Most people do not and cannot comprehend why anyone would be a criminal defense attorney. There were many times when I did not understand it either.

Jeralyn and everyone else I knew at NACDL is the same way. It was a great source of pride and an important part of our identity to speak for and defend the poor and the marginalized.

My unwavering support for Trayvon Martin in the face of some of the most vile and disgusting lies and criticism that I have ever encountered is born of my belief in and commitment to justice and ending racism. This belief and commitment is why I became a criminal defense attorney and you can see it in everything I say and do with this blog.

I believe Jeralyn’s unwavering support for George Zimmerman is born of her passionate and self-defining belief in the presumption of innocence.

Absent compelling evidence of some other motive behind her support for George Zimmerman, I am not going to assume that she is motivated by anything other than her desire that George Zimmerman be presumed innocent and found not guilty, unless the jury unanimously concludes that the prosecution proved beyond a reasonable doubt that he did not act in self-defense when he killed Trayvon Martin. He committed the crime of murder in the second degree.

The lesson in this teaching moment is to never underestimate the power of a belief to filter and shape human perception. Should you doubt its power, consider what it did to George Zimmerman.