Craig Michael Wood moves to exclude confession that he killed Hailey Owens

April 19, 2014

Saturday, April 19, 2014

Good morning:

I write today to update readers regarding Craig Michael Wood, 46, who is charged with kidnapping and murdering 10-year-old Hailey Owens in Springfield, MO. I have three new facts to report:

(1) He has new counsel who are experienced death penalty lawyers;

(2) Hailey Owens was sexually assaulted; and

(3) He confessed to police.

Wood has a preliminary hearing scheduled for Thursday, April 24th. The purpose of the hearing is to determine whether probable cause exists to support the charges.

The test for probable cause is whether the evidence introduced at the hearing would warrant a reasonable person to believe that the defendant committed the crimes charged. Judges rarely dismiss charges at preliminary hearings and I expect no deviation from that practice on Thursday. A finding of probable cause will permit the State to keep Wood in custody until a grand jury indicts him. The indictment will set forth the final set of charges.

Defense attorneys usually have not received any discovery before preliminary hearings, so they use them to discover information about the prosecution’s case and lock witnesses into their testimony.

Because child welfare records obtained pursuant to a state FOIA request by the News Leader reveal that Hailey Owens was sexually assaulted, I am expecting the defense will inquire into that subject matter.

I also expect the grand jury indictment will contain a sexual assault charge.

Although the prosecuting attorney, Dan Patterson, has not announced whether he will seek the death penalty, I do not believe there is any doubt whether he will do so. The case is too egregious not to seek it because, if a state is going to have a death penalty, it’s going to use it to execute people who kidnap, sexually assault and murder a child.

Because this will almost certainly be a death penalty case, the court has appointed Patrick J. Berrigan and Thomas Jaquinot to represent Wood. Berrigan and Jaquinot are death-penalty lawyers who work for the Capital Division of the Missouri Public Defenders Office. Berrigan has considerable experience handling death cases and an excellent reputation.

They have already done something unusual that suggests they are diligent and know what they are doing. Yesterday, they filed a motion to suppress (exclude) Wood’s statements to police. The motion is not unusual, but the timing certainly is. These motions are typically filed after indictment, but before trial. I have never seen a motion to suppress filed before indictment and scheduled to be considered at the preliminary hearing.

Do not be surprised if the judge declines to consider it on the ground that he is not a circuit court judge and lacks the authority to do so. If he does consider it, I doubt there is any chance he will grant it, assuming he wants to keep his job.

However, he may permit defense inquiry far beyond the permissible scope of inquiry in a normal preliminary hearing where the scope of inquiry is limited to whether probable cause exists. I suspect that is the real reason defense counsel filed the motion. If so, it was a brilliant move to not only broaden the scope of inquiry, but to lock police witnesses into their testimony about what Wood said and the circumstances that existed when he said it.

Defense counsel assert in the motion that Wood was drunk, drugged and mentally ill when police took him into custody, that they failed to advise him that he had a right to remain silent and refuse to answer their questions, that they ignored his request to consult with counsel before answering their questions and that they coerced him into providing a statement by promising they would go easy on him, if he cooperated and told them the truth.

Assuming for the sake of argument that the assertions are true, the statement would be inadmissible because it was involuntary and obtained in violation of the Miranda rule.

We have been watching Gerrie Nel, an excellent prosecutor, and now we are going to have an opportunity on Thursday to watch an excellent death penalty lawyer, Patrick Berrigan.

You will not want to miss this hearing, so please join us for the live stream on Thursday and check-in with us each day between now and then for updates and reports on other cases.

If you appreciate what we do and have not yet made a donation for this month, please do so today. You will not find more knowledgeable in depth no-nonsense coverage of legal matters anywhere else on the internet.

Thank you,

Fred


Why Is Trayvon Martin Dead?

May 19, 2012

Cross posted from Frederick Leatherman Law Blog.

I apologize for the length of this article, but there is a lot of information to cover. Includes lots of new information that came out this week.

Many lawyers, including myself, have focused the discussion in the George Zimmerman case on who initiated aggressive physical contact, because there is no law that prohibits a person from approaching another person and asking them what they are doing.

Nevertheless, as I also have pointed out, Zimmerman’s intent when approaching Martin is relevant regarding who threw the first punch.

Keep in mind that it is after dark and raining.

What Was Zimmerman’s Intent?

As Zimmerman sat in his vehicle talking to the dispatcher, we know he was suspicious about Martin’s presence and intentions.

When he called the non-emergency number for the Sanford Police Department seven minutes before he shot and killed an unarmed teenager named Trayvon Martin, he said,

7:09:00: Zimmerman: Hey we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy, uh, [near] Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around, looking about.

7:09:25: Dispatcher: OK, and this guy is he white, black, or Hispanic?

Zimmerman: He looks black.

Dispatcher: Did you see what he was wearing?

Zimmerman: Yeah. A dark hoodie, like a grey hoodie, and either jeans or sweatpants and white tennis shoes. He’s [unintelligible], he was just staring…

7:09:42: Dispatcher: OK, he’s just walking around the area…
Zimmerman: …looking at all the houses.

Dispatcher: OK…

Zimmerman: Now he’s just staring at me.

He also was concerned about Martin approaching him and possibly being armed.

Zimmerman: Yeah, now he’s coming towards me.

Dispatcher: OK.

Zimmerman: He’s got his hand in his waistband. And he’s a black male.

7:10:03: Dispatcher: How old would you say he looks?

Zimmerman: He’s got button on his shirt, late teens.

Dispatcher: Late teens ok.

Zimmerman: Somethings wrong with him. Yup, he’s coming to check me out, he’s got something in his hands, I don’t know what his deal is.

7:10:20: Dispatcher: Just let me know if he does anything ok

Zimmerman: How long until you get an officer over here?

Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else.

Martin, evidently, walks past him without stopping or speaking.

As Zimmerman identifies himself to the dispatcher and provides directions to his location , he expresses frustration three times that Martin will get away before the police officer arrives [See italicized material below — the bracketed descriptions of background sounds within the quoted material were provided by Wikipedia]. He gets out of his vehicle, follows Martin and acknowledges the dispatcher’s instruction not to do that with a simple “OK.”

Yet, he appears to continue looking for Martin, instead of returning to his vehicle. When the dispatcher asks him where his vehicle is parked, he says he cannot because it is parked in front of a “cut-through” or pedestrian walkway “between buildings” (townhomes). He does not appear to be in or near his vehicle because he neither provides any addresses to be used as landmarks near his vehicle, nor does he describe his vehicle or provide explicit directions to find it. Instead, he tells the dispatcher to instruct the officer en route to call him on his cell phone after he arrives in the neighborhood.

Zimmerman: Okay. These assholes they always get away. When you come to the clubhouse you come straight in and make a left. Actually you would go past the clubhouse.

7:10:39 Dispatcher: So it’s on the lefthand side from the clubhouse?

Zimmerman: No you go in straight through the entrance and then you make a left…uh you go straight in, don’t turn, and make a left. Shit he’s running.

7:11:08: Dispatcher: He’s running? Which way is he running?

[Ambient sounds are heard which may be Zimmerman unbuckling his seat belt and his vehicle’s “open door” chime sounding. The change in his voice and the sound of wind against his cell phone mic indicate that he has left his vehicle and is now walking. The dispatcher seems to pick up on these changes and sounds concerned when he later asks Zimmerman if he is following Martin.]

Zimmerman: Down towards the other entrance to the neighborhood.

Dispatcher: Which entrance is that that he’s heading towards?

Zimmerman: The back entrance…fucking [disputed/unintelligible]

[This section of the recording has been the subject of much speculation. Some suggest that Zimmerman has just made a racial slur, but the audio is not clear.]

7:11:22: Dispatcher: Are you following him?

7:11:25: Zimmerman: Yeah

7:11:26: Dispatcher: Ok, we don’t need you to do that.

7:11:28 Zimmerman: Ok

Dispatcher: Alright sir what is your name?

Zimmerman: George…He ran.

Dispatcher: Alright George what’s your last name?

[A clicking or knocking sound can be heard here]

Zimmerman: Zimmerman

Dispatcher: And George what’s the phone number you’re calling from?

[Clicking or knocking sound is heard again]

Zimmerman: [phone number redacted]

Dispatcher: Alright George we do have them on the way, do you want to meet with the officer when they get out there?

Zimmerman: Yeah.

Dispatcher: Alright, where you going to meet with them at?

[For the remainder of the recording, Zimmerman sounds distracted. The knocking sound occurs several times during the final exchange with the dispatcher]

Zimmerman: If they come in through the gate, tell them to go straight past the club house, and uh, straight past the club house and make a left, and then they go past the mailboxes, that’s my truck…[unintelligible]

7:12:10: Dispatcher: What address are you parked in front of?

Zimmerman: I don’t know, it’s a cut through so I don’t know the address.

Dispatcher: Okay do you live in the area?

Zimmerman: Yeah, I…[unintelligible]

Dispatcher: What’s your apartment number?

Zimmerman: It’s a home it’s 1950, oh crap I don’t want to give it all out, I don’t know where this kid is.

7:12:40 Dispatcher: Okay do you want to just meet with them right near the mailboxes then?

7:11:42 Zimmerman: Yeah that’s fine.

7:12:43: Dispatcher: Alright George, I’ll let them know to meet you around there okay?

Zimmerman: Actually could you have them call me and I’ll tell them where I’m at?

7:12:49: Dispatcher: Okay, yeah that’s no problem.

Zimmerman: Should I give you my number or you got it?

Dispatcher: Yeah I got it [redacted]

Zimmerman: Yeah you got it.

Dispatcher: Okay no problem, I’ll let them know to call you when you’re in the area.

7:13:02 Zimmerman: Thanks.

Dispatcher: You’re welcome. – Call Ends 7:13:07

The Critical Three Minutes

Zimmerman shoots and kills Martin three minutes after the phone call ends.

How do we know that?

All 911 calls are timed and this is how we know that Zimmerman’s call ended at 7:13 pm. During another timed 911 call from the resident of a townhouse reporting a fight between two individuals in the yard behind the townhouse, a shot abruptly punctuates a terrified scream for help at 7:16 pm.

Martin’s girlfriend calls him at 7:12 pm, which has been verified by cellular phone records for both phones.

Through counsel for Martin’s parents, she provided a statement in which she said Trayvon expressed concern about a man following him. She told him to run. Then she heard Martin say,

What are you following me for?

This was followed by a man’s voice responding,

What are you doing here?

She said that she heard the sound of pushing and then Trayvon said,

Get off me, get off me.

Martin’s headset suddenly went silent. She attempted to call him back immediately, but was unable to reach him.

That call ended at 7:16 pm.

What Happened Next

Officer Timothy Smith of the Sanford Police Department was the first to arrive at the scene of the shooting at 7:17 pm.

Police recovered Martin’s cellphone from the wet grass near his body. The Arizona Iced Tea and Skittles were found inside the pouch pocket of his hoodie.

The Autopsy Report

According to the autopsy report, the fatal shot was fired straight-on from an intermediate distance and entered Trayvon’s chest 1 inch to the left of the midline and 1/2 inch below his left nipple. It perforated the right ventricle of his heart and perforated his left lung, collapsing both lungs. There was no exit wound. The trajectory of the shot was front to back, neither up nor down, neither to the left nor to the right.

Based on the 2 inch X 2 inch smoke ring with stippling around the 3/8 inch entry wound, Dr. Vincent J.D. di Maio, the former Medical Examiner for Bexar County (San Antonio) estimated that the muzzle of the gun was 2 to 4 inches from Trayvon’s chest when Zimmerman fired the fatal shot.

The Assistant Medical Examiner who performed the autopsy also reported that Martin had severe global edema (i.e., swelling) to both hemispheres of his brain.

Zimmerman’s Statement

Zimmerman claims he followed the dispatcher’s advice and was returning to his vehicle when Martin approached him from behind his left shoulder and asked him,

Why are you following me?

[Note the use of the present tense, which suggests he has not given up looking for Martin, is not returning to his vehicle, and is not approached from behind (h/t KrisAinTX)]

Martin’s girlfriend corroborates Martin’s question and use of the present tense, if not the context in which Zimmerman claims it was asked.

Zimmerman claims he then asked Martin,

What are you doing here?

Martin’s girlfriend corroborates Zimmerman’s response.

Zimmerman’s Arrest

When Officer Smith arrived at the scene at 7:17 pm, a minute after the shooting, he saw Martin lying face down in the grass and Zimmerman standing nearby.

Zimmerman was not attempting to aid or provide CPR to Martin and there is no reference in Smith’s report to Zimmerman being upset or crying.

After retrieving Zimmerman’s gun and holster from inside his waistband, he arrested and handcuffed him with his hands behind his back and placed him in the back seat of his patrol vehicle.

Cool As A Cucumber

When an EMT checked Zimmerman in the patrol vehicle at 7:41 pm his pulse, blood pressure, and all of his vital signs were normal. Here is his report:

Assessment 1941 [7:41 pm]

Patient Conscious
Breathing Quality Adult Normal 12-20 [which is normal, not panting or out of breath]

No External Hemorrhage noted; Mucuous Membrane Normal

Central Body Color Normal

Extremities Normal

Within Normal Limits (Airway, Breathing Quality, Accessory Muscle Use, Chest Rise, Radial Pulse, Skin Temp, Skin Moisture [not sweating], Skin Turgor [not showing signs of dehydration], Cap Refill [blood circulation is normal], Pupil Size and Reaction.

[Or as Crane Station, a former RN says, He’s cool as a cucumber, which seems unusual for a person who minutes earlier killed someone and is now under arrest while sitting in the rear seat of a police vehicle with his hands handcuffed behind his back ]

Cause of Injury [to Zimmerman]: Struck by blunt/thrown object. (9640) [Emphasis supplied]

Mechanism of Injury: Blunt

Patient says he was assaulted and his head was struck on the pavement.

Pt’s GCS = 15 [Glascow Coma Scale, which is a level of consciousness scale and 15 is normal] and he is warm and dry with normal skin color. Pt has abrasions to his forehead + bleeding/tenderness to his nose and a small laceration to the back of his head. All injuries have minor bleeding. Pt also denies LOC [loss of consciousness], neck/back pain, and he has + PMS [pulse motor sensory function] X 4 [in all extremeties] with – paresthesia [no tingling]

[That means his pulse, motor, and sensory functions were all okay and functioning normally]

Crane-Station’s Take

Crane-Station put it best,

How could a guy be talking to his girlfriend and killing somebody at the same time?

Who Screamed For Help?

The FBI Digital Examination Laboratory has reported that identification of the person screaming for help during the 911 call is not possible due to the poor quality of the original recording.

Zimmerman, backed by his father and unidentified family members, claims he is the person screaming for help. A neighbor named John claims he saw Zimmerman calling for help.

Martin’s mother claims Trayvon is the person screaming for help. Two audiologists working independently of each other using different methodologies to clean up background noise and focus on clarifying the scream have excluded Zimmerman as the source of the scream to a reasonable scientific certainty.

The Witness Named John

Claims that he saw Martin on top of John beating him about the head and heard Zimmerman calling for help. He shut and locked his sliding glass door and went upstairs to call 911. He heard the shot as he was going up the stairs. When he looked out a bedroom window, he saw Martin lying face down in the grass, apparently dead, and Zimmerman standing next to him.

He did not see the beginning or the end of the fight and that also appears to be the case with the other witnesses.

Other Witnesses

Other witnesses reported bits and pieces of this tragic event. I am still reviewing their statement but have nothing definitive or new to report yet.

Conclusion

Given Zimmerman’s state of mind and intent, I believe he was the aggressor and did not act in self-defense. I also believe he attacked Martin while Martin was talking to his girlfriend and Martin may have struck him with the cell phone several times in self-defense causing the injuries treated by the EMT.


Zimmerman Did Not Shoot Trayvon Martin In Self-Defense: UPDATED

March 30, 2012

George Zimmerman claims that he shot and killed Trayvon Martin in self-defense to prevent Martin from seriously injuring or killing him. According to news reports, Martin punched him in the nose fracturing it and was slamming the back of his head against a sidewalk when he shot him. The police and the prosecutor’s office agreed that he killed Martin in self-defense because the police released him after interviewing him about the circumstances of the shooting and the prosecution did not seek a grand jury indictment charging him with a crime.

Let’s take a look at Florida’s stand-your-ground self-defense statute to determine whether we agree or disagree with their decision.

The stand-your-ground law in Florida simply means that a person has no duty to retreat before using deadly force in self-defense.

The Florida statute provides:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;

(Emphasis supplied)

Florida Statute 776.013(3) adds two important conditions; namely, the person who uses deadly force must not be engaged in unlawful activity and must have a right to be where they are.

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.

(Emphasis supplied)

More importantly, pursuant to Florida statute 776.041(2), the person who uses deadly force cannot claim self-defense if he is the aggressor, 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.

(Emphasis supplied)

Zimmerman was not a law enforcement officer and we know from his 911 call that he ignored the 911 dispatcher’s admonition not to follow the “suspicious person” whom he called about. We also know that nothing Zimmerman said about the “suspicious person” was reasonably suspicious. That is, the facts and circumstances that he described (i.e., walking down the sidewalk while Black and wearing a hoodie) would not cause a reasonable person to suspect that Martin was committing a crime.

Nevertheless, Zimmerman initiated contact with Martin and apparently attempted to detain him without waiting for police to arrive. Since Zimmerman was not a police officer, he had no right to detain Martin and Martin was free to leave without identifying himself or answering any questions. Zimmerman would be considered an aggressor under Florida law, if he used or attempted to use any force to prevent Martin from walking away.

Also, under Florida statute 776.012, Martin could have stood his ground and would have been entitled to use force, but not deadly force, in self-defense to prevent Zimmerman from assaulting him. He would have been entitled to use deadly force in self-defense under 776.013(3), if Zimmerman were attempting to inflict serious bodily harm or kill him.

This case does not appear to be complicated to analyze. Zimmerman ignored the 911 dispatcher’s advice and, according to his own version of what happened, he attempted to detain Martin without a reasonable suspicion to believe Martin was committing a crime or lawful authority to detain him. Therefore, Zimmerman was the aggressor and Martin was entitled to stand his ground and use force to prevent Zimmerman from assaulting him, including using deadly force, if necessary.

We do not actually know if Martin used any force because the police videotape of Zimmerman arriving at the police station does not support Zimmerman’s claim that he sustained a broken nose and abrasions to the back of his head. But even if Zimmerman did sustain those injuries, (1) he was the aggressor, (2) Martin was entitled to use force in self-defense, (3) and Zimmerman’s claim of self-defense is barred by the statute.

At this point, racism and corruption appear to be the most likely explanation for the failure to arrest and prosecute George Zimmerman for intentionally killing Trayvon Martin.

UPDATE:

Two independent voice analysis experts using different analytical methods have compared George Zimmerman’s voice from his 911 call to screams and a gunshot that are audible in the background during a 911 call from a neighbor calling for police assistance regarding the confrontation between George Zimmerman and Trayvon Martin that was going on behind her house.

Both experts have excluded George Zimmerman as the source of those screams to a reasonable scientific certainty.

CAUTION: The recording may cause emotional upset.

In addition, EMS documents obtained by the New York Daily News do not support Zimmerman’s claim that he sustained physical injuries during his confrontation with Trayvon Martin.

Based on George Zimmerman’s declared intention during his 911 call to follow Trayvon Martin, ignoring the 911 operator’s warning not to do so, and what now appear to be Trayvon Martin’s screams, I think we can reasonably conclude that George Zimmerman, who was armed and fired the fatal shot, confronted Trayvon Martin and was the aggressor.

Zimmerman’s claim that Martin, who was unarmed, was the aggressor breaking his nose and slamming the back of his head into a cement sidewalk, is not supported by the evidence.

Therefore, Zimmerman’s claim of self-defense should be rejected and he should be charged with intentional murder.


The Difference Between Homicide And Murder

October 23, 2011

Although states vary in their definitions, the majority of states define homicide is the unlawful killing of a human being. Killing a person in self-defense is a lawful killing of another person. Therefore, it is not a homicide.

There are four degrees of homicide which vary according to the actor’s state of mind when he or she commits an act that causes the death of another person. The four degrees of homicide are:

1. Murder in the First Degree (premeditated intent to kill another person). Note that premeditation is defined as forming the specific intent to kill before committing the act that causes the death of another person. There is no established minimum amount of time, but the actor must have had an opportunity to reflect on the decision to kill before committing the act that causes death.

2. Murder in the Second Degree (intentional murder). In effect, the actor forms the specific intent to kill another person and acts immediately such that the formation of intent and the act occur simultaneously or so close together that there is no opportunity to reflect on the decision. Murder in the Second Degree typically involves killing another person in the heat of passion.

3. Manslaughter in the First Degree (reckless killing). The actor engages in conduct knowing that there is a substantial risk that the conduct will cause the death of another person. The typical example is playing Russian Roulette with another person. There is no intent to kill, but a death results nevertheless.

4. Manslaughter in the Second Degree (criminally negligent killing). The actor causes the death of another person while committing an act that he should have known would likely cause the death of another person and his failure to know that constitutes a gross deviation from the standard to act with due care to avoid injuring others.

Depending on whether a state has the death penalty, there is another category called Aggravated Murder, which is a premeditated murder with aggravating circumstances.

Aggravating circumstances are defined by statute and typically include the premeditated killing of another person to conceal the commission of another crime. For example, a rapist kills the victim to prevent her from reporting the crime and identifying him. Other examples include the premeditated murder of a cop or a judge. In each case the aggravating circumstance is the purpose behind the premeditated intent to kill.

The death penalty is not automatically imposed upon conviction of aggravated murder, no matter how heinous or depraved. Instead, a sentencing hearing is held after the jury convicts the defendant of aggravated murder in which the same jury that convicted him considers evidence submitted by the prosecution in aggravation of the offense and evidence offered by the defense in mitigation of the offense.

Evidence in aggravation includes the evidence the jury already heard about the offense in the guilt phase, a statement from a friend of the victim or member of the victim’s family who testifies regarding the impact of the victim’s death on the witness or family, and evidence of the defendant’s prior record of criminal convictions, if any exists.

Evidence in mitigation is evidence about the defendant, such as organic brain disorder, limited intellectual functioning, mental illness, victim of childhood sexual abuse or assault, or the defendant’s role in committing the murder (e.g., an accomplice who assisted another person to commit the murder but who did not commit the murder and may not have even been present when it occurred) that in fairness or mercy warrants a sentence of life without possibility of parole instead of the death penalty.

In Washington State where I handled all of my death penalty cases, the final instruction given to the jury after both sides rest in the penalty phase is as follows:

Having in mind the crime of which the defendant has been convicted, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit a sentence of less than death?

The jury also is instructed that the law presumes that the appropriate sentence is life without possibility of parole unless the prosecution overcomes that presumption with proof beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit the life without parole sentence.

The jury must be unanimous to impose the death sentence.


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