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

October 15, 2014

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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Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea

March 6, 2013

Wednesday, March 6, 2013

Several of you, including Xena, Southern Girl and Towerflower, have asked me to comment on the possibility of combining an immunity hearing with the trial. I do not believe that is a workable solution because it would violate the defendant’s right to remain silent and the presumption of innocence.

Let us use the defendant’s case as an example.

In a typical immunity hearing, a defendant has the burden of proving by a preponderance of the evidence (more likely so than not so) that he acted in self-defense. He puts on his case first, since he has the burden of proof, and the prosecution goes second. If the judge concludes that he satisfied his burden, she will enter an order granting him immunity from civil suit and dismiss the criminal case.

A defendant is not required to testify at the immunity hearing, but if he testifies, and most will since they have the burden of proof, he does not waive his right to remain silent at a subsequent trial, if the judge denies his motion for immunity.

If the hearings are combined in GZ’s case, the prosecution will go first because it has the burden of proving beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

Let us suppose for the sake of argument that the defense manages to poke some holes in the prosecution’s case such that the defendant and his lawyers are pretty confident about winning the trial without putting on a defense. They do not believe the defendant needs to testify and he does not want to testify.

The defense moves for a judgment of acquittal and for an order granting immunity.

For the purpose of the criminal case and ruling on the motion for a judgment of acquittal, the judge would be required to decide whether a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty based on the evidence introduced during the prosecution’s case. Let us further suppose that the judge decides that a rational trier of fact could convict the defendant and denies the motion for a judgment of acquittal.

For the purpose of ruling on the immunity issue, the judge would be required to decide whether the defense had met its burden to prove by a preponderance of the evidence that he had acted in self-defense. There is little likelihood that the judge would grant the motion because the defense has not put on its case and the defendant has not testified. Therefore, the judge would deny the motion.

Now what happens?

If this were “just” a trial, the defense would rest without introducing any evidence or putting the defendant on the stand to testify. I won about 80% of my trials by employing this strategy, including some self-defense cases by relying on the presumption of innocence and arguing reasonable doubt.

The defense cannot use that strategy, however, if it wants a shot at immunity. Since it has the burden of proof, it must put on a case and the defendant has to testify.

Do you all see the problem now?

The defendant has to give up his right to remain silent to have a shot at immunity, but if he testifies, he risks not only losing the motion for immunity, he also risks being convicted by the jury, if the jury does not believe him.

In other words, in order to exercise his statutory right to an immunity hearing, he is forced to give up his right to remain silent and be presumed innocent in the criminal case.

Notice that combining an immunity hearing with the trial only hurts a defendant.

There is a very long line of SCOTUS cases that prohibit forcing a defendant to give up one constitutional right to exercise another.

That is the problem with combining a pretrial immunity hearing with a trial.

It is also the reason why pretrial suppression hearings in criminal cases are not combined with trials.

I realize that this procedure has been followed in other cases in Florida, and Judge Nelson could decide to follow it in GZ’s case, but I think she would be unwise to do so.

For example, if the defendant were to testify, the jury found him guilty, and Judge Nelson denied his motion for immunity, you can bet that he will claim that he was forced to waive the presumption of innocence and his right to remain silent in order to exercise his statutory right to an immunity hearing and that his lawyer provided ineffective assistance of counsel in violation of his Sixth Amendment right to counsel by waiving his right to a pretrial immunity hearing.

I believe that the case will be reversed and remanded for a new trial, if the scenario that I have described takes place.

The scenario is not far fetched.

Frankly, I am shocked that defense counsel would even consider combining the immunity hearing with the trial. Either they are incompetent or simply using this idea as a smokescreen to conceal that they know they have no case.

They may be unwilling to admit publicly that they do not really intend to pursue the request for an immunity hearing during the trial for the simple reason that they fear financial contributions to the defense would wither away to nothing.

I regard that as theft by misrepresentation.

GZ’s supporters should be screaming bloody murder about this latest turn of events.

Instead, his supporters, including some criminal defense lawyers who should know better, are calling yesterday’s decision a victory for the defense.

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

October 12, 2012

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.

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