Jury instructions are necessary

June 15, 2014

Sunday, June 15, 2014

Happy Father’s Day to all of the fathers and good morning to all:

Roderick and Malisha are opposed to issuing jury instructions to juries.

Roderick said the following in a comment:

The fact that [Zimmerman’s] verdict was obviously racist has the Florida legal system (such that it is) scrambling by trying to legalize warning shots (Marissa Alexander) and Trevor Dooley has been allowed to appeal his conviction.

One of the big things that I got from [Zimmerman’s] trial is that there should not be jury instructions.

Judges shouldn’t have the power to tailor the laws to the case. The juries should only get the pertinent law and they should decide which parts of the law apply to each case.

When Judge Nelson refused to include the ‘initial aggressor’ clause in the jury instructions she basically signed [Zimmerman’s] get out of jail free card.

Malisha responded:

You know, I had not thought of that, that giving jury instructions to a jury is a form of prejudice, a way to disable the jury. The judge makes the rulings all through the trial based on what the jury may or may not hear. Then, you are absolutely right, there should be no need for jury instructions period. The law should be printed up and taken into the jury room. When the jury asks a question, it should start, “This refers to section __ on page __” and if they want an explanation they get it.


THey should get, along with their explanation, copies of the last three decisions that were made in the legal database on that question of LAW. They are the deciders of fact.

The initial aggressor language was crucial and this judge was committing a crime by omitting it.

Think: A guy goes into Walmart with a gun and waves it around screaing “get out get out the revolution is starting.”

A person with a ccw who has his loaded gun on him is nearby and pulls his gun and advances on the man. Why? He was not in fear of immediate death or bodily harm: the man neither saw him nor aimed at him; the screaming man was screaming to LEAVE, which was safe. The man who pulled a gun and advanced on the “revolutionary shopper” would be guilty of terroristic threatening, at least, if “initial aggressor” is not factored into this scene, the shooter himself would have been innocent of any harm to come to the armed shopper, if he had lived long enough to go to trial.

When you change “white armed neighborhood twat” and “black kid in hoodie” to “white revolutionary” and “Walmart shopper” you get two completely different pictures, don’t you?

I respectfully disagree.

Jury instructions are not the problem. They are the solution, provided the correct instructions are given.

The practice of law has become so specialized that general practitioners have become a dying breed who should limit their practice to the simplest tasks and refer the rest of their clients to specialists or associate specialists to assist them with the case.

This is especially true in the practice of criminal law, which has been subdivided into two broad categories, which are state and federal courts. Each of those are subdivided into criminal traffic offenses, juveniles, mental health commitments, misdemeanors, felonies, death penalty cases, sentencings and mitigation, appeals, post-conviction petitions and prisoner’s remedies.

Laws are complicated and even skilled lawyers encounter difficulty navigating their way through thickets of cross-referenced statutes and definitions of words and phrases that are used in those statutes. The intent of the legislature is occasionally difficult to discern because the statutes are poorly written. Practitioners also must review appellate and supreme court decisions interpreting the meaning of relevant statutes and constitutional provisions to update their knowledge.

To assist lawyers, judges and jurors to understand and correctly apply relevant laws, the supreme courts created committees of judges, practitioners and law professors to develop a comprehensive set of jury instructions for all criminal trials, including recommendations of which instructions should be given in particular cases.

For example, we know that an initial aggressor cannot claim self-defense because a person cannot create a necessity to use force in self-defense. This principle has been part of the law of self-defense extending back to the common law in England, which is the source of most of our criminal laws and practice.

The initial aggressor instruction should be given in a self-defense case whenever there is any evidence that the defendant was the original aggressor. Under existing Florida law, including a Florida Supreme Court case from the early 1950s, Judge Nelson should have given the initial aggressor instruction that prohibits a defendant from using force to defend himself against the victim of his initial attack unless the victim’s use of force in self-defense was excessive. In other words, a victim of a slap is limited to using reasonably necessary force to defend himself. If he reacts with deadly force, which would be excessive and unlawful, the initial aggressor can use deadly force to defend himself, provided that it was reasonably necessary for him to do so to prevent imminent death or grievous bodily harm.

Therefore, the problem with the instructions in the Zimmerman case was the court’s failure to properly instruct the jury.

That problem was compounded by the failure of the jury to follow the instructions that were given to, in essence, base their verdict on the evidence and not their racially prejudiced opinions against Trayvon Martin.

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Juror B-29 misunderstood a jury instruction and a remorseless child-killer is free to kill again

July 26, 2013

Friday, July 26, 2013

Good morning my friends:

Juror 29 misunderstood a jury instruction and a remorseless child-killer is free to kill again.

She decided that Zimmerman murdered Trayvon, but she could not find him guilty “because of the law.” She said the prosecution did not prove that he intended to kill Trayvon and that is why she eventually caved and voted not guilty.

Intent is not an element of second degree murder. The instruction said that the prosecution had to prove beyond a reasonable doubt that the defendant intended to commit the act or acts that resulted in Travon’s death and that such act or acts evinced a depraved mind indifferent to human life.

In other words, the prosecution only had to prove that the defendant intended to shoot at Trayvon, not that he intended to kill him.

How bizarre is it that the defendant was acquitted because at least one juror misunderstood the jury instruction?


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Florida’s homicide statutes are a mess

July 18, 2013

Thursday, July 18, 2013

Good morning:

Florida’s homicide statutes are a mess and the legislature needs to fix them. Fortunately, a model exists for them to follow. Produced by the American Law Institute, it’s called the Model Penal Code.

The American Law Institute is a non-profit independent organization composed of prominent judges, lawyers and legal scholars who comprehensively developed and redesigned criminal statutes to simplify and unify existing criminal codes so that everyone would be on the same page, so to speak, operating with a uniform set of understandable concepts and statutes. The Model Penal Code was published in 1962 and updated in 1985.

A crime consists of a prohibited act (actus reus) committed with a particular mental state (mens rea). The Model Penal Code established four mental states.

Here’s Wiki:

One of the major innovations of the MPC is its use of standardized mens rea terms (criminal mind, or in MPC terms, culpability) to determine levels of mental states, just as homicide is considered more severe if done intentionally rather than accidentally. These terms are (in descending order) “purposely”, “knowingly,” “recklessly”, and “negligently”, with a fifth state of “strict liability”, which is highly disfavored. Each material element of every crime has an associated culpability state that the prosecution must prove beyond a reasonable doubt.

Purposely. If the element involves the nature of the conduct or the result thereof, it is his conscious object to engage in that conduct or cause the result. If the element involves attendant circumstances, he is aware of the circumstances or believes or hopes that they exist.

Knowingly. If the element involves the nature of the conduct or the attendant circumstances, he is aware that his conduct is of that nature or that the circumstances exist. If the element involves a result, he is practically certain that the result will occur. Further, if the element involves knowledge of the existence of a particular fact, it is satisfied if he is aware of a high probability of the existence of that fact, unless he actually believes that it does not exist.
Recklessly. A person consciously disregards a substantial and unjustifiable risk that the element exists or will result, such that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe.
Negligently. A person should be aware of a substantial and unjustifiable risk that the element exists or will result, such that the failure to perceive it involves a gross deviation from the standard of conduct that a reasonable person would observe.

If an offense requires a specific kind of culpability, then any more severe culpability will suffice. Thus if an offense is defined in the form, “It is illegal to knowingly do X,” then it is illegal to do X knowingly or purposely (a more severe state), but not to do so recklessly or negligently (the two less severe states). Strict liability means that it is illegal to do something, regardless of one’s mental state. If a statute provides only a single kind of culpability for a crime, that kind of culpability is assumed to apply to all elements. If no culpability is stated by statute, a minimum of recklessness is assumed to be required. The MPC declines to use the common terms “intentional” or “willful” in its specification of crimes, in part because of the complex interpretive history of these terms. However, it defines that any (non-MPC) statute in the jurisdiction’s criminal code that uses the term “intentionally” shall mean “purposely,” and any use of “willfully” shall mean “with knowledge.” If a law makes an actor absolutely liable for an offense, MPC sections 2.05 and 1.04 state that the actor can only be guilty of what the MPC calls violations (essentially meaning civil infractions), which only carry fines or other monetary penalties, and no jail time.

The actus reus for homicide is to cause the death of another person.

In Washington State where I practiced law for 30 years, the legislature defined four degrees of homicide, according to the mens rea:

(1) Murder in the First Degree: premeditation;

(2) Murder in the Second Degree: intentional;

(3) Manslaughter in the First Degree: reckless; and

(4) Manslaughter in the Second Degree: gross negligence.

The difference between premeditated and intentional murder is a reflection on intent to kill and a decision to go ahead and kill.

Recklessness is best exemplified by the game Russian Roulette. It is state of mind in which the actor is aware of a substantial risk of harm to another person if he commits a particular act, but he goes ahead and does it anyway.

Criminal negligence is a failure to be aware of a substantial risk of harm to another person where that failure constitutes a gross deviation from the standard to exercise due care to avoid injuring or killing other people.

Each crime is a lesser included offense of the more serious degrees of homicide. Therefore, Murder in the Second Degree is a lesser included offense of Murder in the First Degree and Manslaughter in the First Degree and Manslaughter in the Second Degree are lesser included offenses of Murder in the Second Degree.

Murder in the Second Degree in Florida does not require proof of intent to kill and it is easy to confuse with Aggravated Manslaughter because the mens rea for both is recklessness. That is, evincing a depraved mind is defined as acting with extreme or reckless indifference that a particular act will cause the death of another. That’s recklessness and Aggravated Manslaughter is defined as reckless homicide.

Intent creeps into the Florida instruction on Murder in the Second Degree requiring proof that the defendant intended to commit the act that caused the death of another, as opposed to proof that the defendant intended to kill the victim. See Haygood v. State, No. SC11-294 (February 14, 2013)

The mental state for Manslaughter in Florida is defined as “culpable” or gross negligence, which is the same as Manslaughter in the Second Degree in Washington State.

Given the evidence introduced at trial and using the Washington statutes as an example, I would have instructed on Murder in the Second Degree (intentional murder), Manslaughter in the First Degree (reckless homicide), and Manslaughter in the Second Degree (criminally negligent homicide).


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Zimmerman: Jury Instructions for Second Degree Murder and Self-defense

July 12, 2012

Here are some definitions for y’all to keep in mind.

All state and federal trial courts use sets of pattern instructions that are submitted to juries to follow during their deliberations. The instructions define legal terms, the elements of the crimes charged and the relevant defense claimed by the defendant. They also include a presumption of innocence, burden of proof, and definition of reasonable doubt instruction that is given in all criminal cases.

You are in an upper level graduate school course so you know this part by heart:

The defendant, George Zimmerman, is presumed innocent and remains innocent unless the jury unanimously finds him guilty beyond a reasonable doubt.

The defendant has no burden to produce any evidence or to testify in this case. He has a constitutional right to not testify and the jury may not assume anything regarding his silence.

The State has the burden of proving each element of the crime charged beyond a reasonable doubt.

Since the defendant admits killing Trayvon Martin, but claims he was legally justified to do so in self-defense, the State must prove beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

A reasonable doubt is a doubt for which a reason exists. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence.

Each side is entitled to the benefit or detriment of the evidence, regardless of which side introduced it.

Evidence may be either direct or circumstantial. Direct evidence is perceived directly by the senses: vision, hearing, touch, taste and smell. Circumstantial evidence is inferred from a chain of circumstances which in ordinary common experience leads to a particular conclusion. One type of evidence is not necessarily better or worse than the other. It is for the jury to decide how much weight to give to the evidence.

Murder in the Second Degree

In Florida second degree murder is defined as the unlawful killing of a human being when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.

Imminently dangerous conduct means conduct that creates what a reasonable person would realize as an immediate and extremely high degree of risk of death to another person.

A person evinces a depraved mind when he engages in imminently dangerous conduct with no regard for the life of another person.

The Florida jury instruction for second degree murder (Fla. Std. Jury Instr. (Crim.) 7.4) provides that an act is imminently dangerous to another and demonstrating a depraved mind if it is one that

1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another


2. Is done from ill will, hatred, spite, or an evil intent


3. Is of such a nature that the act itself indicates an indifference to human life.

Element number 2 will be the battleground and that is why I italicized it.

Self-Defense Instruction

This is the pattern jury instruction for self-defense that the State must disprove beyond a reasonable doubt.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the charge of Murder in the Second Degree with which the defendant is charged if the death of Trayvon Martin resulted from the justifiable use of deadly force.

“Deadly force” means force likely to cause death or great bodily harm.

In deciding whether defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.

No duty to retreat..

There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime for which the defendant asserts the justification.

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself.

An Aggressor Cannot Claim Self-Defense

The legal justification to use deadly force in self-defense is not available to a person who:

1. Initially provokes the use of force against himself, unless such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm


2. 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.

These instructions or ones that are substantially similar will be given, if this case goes to trial.

The lawyers on both sides will be preparing for trial with these instructions in mind and y’all should keep them in mind as we continue to evaluate and discuss the evidence.

Keep in mind that Trayvon Martin’s alleged use of force may have been legally justified as reasonable force in self-defense while standing his own ground. The State will have the burden of proving beyond a reasonable doubt that he acted in lawful self-defense in order to prove that GZ’s use of deadly force was not legally justified in self-defense.

Clear as mud you say?

That’s why we have a comments section, right?

Last one in the pool is a rotten egg.

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