North Carolina grand jury indicts officer for voluntary manslaughter for killing schizophrenic teen

February 4, 2015

Good news from North Carolina: A grand jury has indicted Officer Bryon Vassey for voluntary manslaughter. He is the officer who allegedly said, “We don’t have time for this,” before shooting and killing a schizophrenic teenager who had been subdued by two officers.

Think Progress has the story,

Officer Bryon Vassey was one of three officers from different North Carolina precincts to respond to a call by the family of 18-year-old Keith Vidal last month. The teen, who suffered from schizophrenia and weighed just 90 pounds, had apparently picked up a small screwdriver and wasn’t putting it down. But his parents say the two other officers already had the scene under control when Vassey walked in. They say the third officer simply tased Vidal, then took out a firearm and shot him dead, saying “we don’t have time for this.”

Records show Vassey was at the Vidal residence for just 70 seconds before calling in that shots had been fired, reports the North Carolina Star News.

The two officers who had subdued Vidal before Vasey arrived were cleared of wrongdoing by the North Carolina Bureau of Investigation.

I wrote about the incident here.

In the Boiling Spring Lakes case, there were three different officers at the scene. The first two didn’t open fire, but Vassey did. His lawyer, W. James Payne told CNN that Keith Vidal attempted to stab one of the officers multiple times with a screwdriver, but the officer was wearing a bulletproof vest, did not request assistance and was not injured.

Vidal’s stepfather, Mark Wilsey, who witnessed the shooting with Vidal’s mother, told CNN that the detective disrupted the situation,

“(He) walks in the room, walks around the corner, (and) says, ‘We don’t have time for this. Tase that kid now. Let’s get him out of here.'”

At a protest following the shooting, Keith’s mother warned,

“My word that I want to get out to every family who has a mentally ill patient: Do not call the police department for help,” Vidal’s mother told reporters. “Because your son will probably get shot and killed, just like mine did. Think twice about who you call for help.

Vassey has to post a $50,000 bond by today or surrender himself at the county jail.

I was really beginning to wonder if a grand jury would ever indict a cop. This indictment gives me some hope.

In other good news, a week before Christmas a jury in Missoula, MT rejected Markus Kaarma’s claim of self-defense, based on Montana’s stand-your-ground statute, and convicted him of deliberate homicide for the shotgun killing of a 17-year-old German foreign exchange student named Diren Dede. After an unsolved burglary, Kaarma installed some motion sensors in his garage and set a trap by leaving the door open with his wife’s purse in plain view. When Dede set off the sensor, Karma entered the garage and fired his pump shotgun four times, killing Dede.

Kaarma, whose case is similar to the Byron David Smith case in Minnesota (he also was convicted), will be sentenced on February 11th.

These three cases provide a basis for guarded optimism. I use the word ‘guarded’ because the victims in the three cases were white and I am not convinced the results would have been the same, if they had been black.


News from Crazy Ted Cruz to Tsarnaev to cowardly George Zimmerman

September 23, 2013

Monday, September 23, 2013

Good morning:

Lawyers for Boston Marathon bombing suspect Dzhokhar Tsarnaev will be in court today in Boston to discuss the timing and guidelines that federal prosecutors will use in deciding whether to seek the death penalty. The purpose of the hearing will be to establish a procedure to be followed by the defense in preparing and submitting a mitigation package for prosecutors to consider in determining whether to seek the death penalty.

Attorney General Eric Holder will make the final call regarding whether the prosecution will seek the death penalty.

Tsarnaev is charged with 30 counts in a federal indictment, including using a weapon of mass destruction resulting in death and 16 other charges that carry the possibility of the death penalty.

Judy Clarke is representing Mr. Tsarnaev. She is the best death penalty lawyer in the land in my opinion. She recently represented Jared Loughner and previously represented Ted Kaczyinsky (the Unabomber) and Susan Smith (woman in South Carolina who drowned her children in a pond). All committed the crimes with which they were charged and no one was sentenced to death.

In other news today,

1. A small group of people who are continuing to seek justice for Trayvon are planning to gather at the state capitol in Tallahassee repeating their request for Gov. Rick Scott to call a special session and ask legislators to overhaul the state’s self-defense laws. Not much chance he will acknowledge their presence, much less grant their request.

2. the hostage situation and shootout at the mall in Nairobi, Kenya has not been resolved;

3. Republican Senator Ted Cruz from Texas continues his jihad against Obamacare by promising he will fillibuster the House bill even though it includes language defunding Obamacare. Mother Jones has the story;

4. In an information filed Thursday, Sept. 19, 2013, federal prosecutors claim Mingo County West Virginia Commissioner David Baisden conspired with Circuit Judge Michael Thornsbury, Sparks and now-deceased Sheriff Eugene Crum to stop a confidential informant from telling federal agents that he provided narcotics to the sheriff; and

5. Cowardly George Zimmerman is still trembling in hiding as he seeks to avoid being served with papers in his divorce.


Bullet trajectories and self-defense in the Michael Dunn case

July 28, 2013

Sunday, July 28, 2013

Good morning my friends:

An interesting issue occurred to me while I was reading through the discovery in the Dunn case. Which of the bullets struck Jordan Davis?

Crime scene investigators used wooden dowels as probes to line up the trajectories of the multiple shots into the Dodge Durango.

Medical examiners use metal rods to do the same thing with bullet wounds.

The use of wooden dowels or metal rods can provide useful information that assists in solving crimes as well as confirm or contradict a witness’s or a suspect’s description of a shooting.

According to the discovery in the Dunn case, he fired four shots into the Durango while seated in the driver’s seat of his vehicle and four more shots into the back end after the driver backed out and sped away.

Jordan Davis was seated in the back seat of the Durango on the passenger side, which was open. His position in the vehicle would have been next to the driver’s side of Dunn’s vehicle and a little behind Dunn. He was shot multiple times.

Questions:

1. Did the bullets that struck him pass through the vehicle?

2. If so, did the shots come from the side or from behind?

3. What were the angles?

4. From what direction and what angle was the fatal shot(s) fired.

I do not believe Dunn has a viable claim of self-defense, but this is crazy racist Florida and, therefore, it is impossible to predict what a jury might conclude.

Nevertheless, Dunn’s claim of self-defense would be weaker, if he fired the fatal shot(s) at a fleeing vehicle.

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Can You Direct Me To The House Of The Reasonable Man?

April 14, 2012

Many of our civil and criminal laws are based on the theoretical concept of the reasonable person and what he or she would do in any given situation. We establish standards of conduct based on this theoretical reasonable man or woman and impose civil or criminal liability and consequences on people who intentionally, knowingly, recklessly, or negligently violate those standards.

This concept of reasonableness can change over time as people’s concepts of what constitutes reasonable behavior in any given situation change.

For example, our common law comes from Great Britain and the Brits are not as violent and gun-loving as Americans. According to their cultural concepts, a reasonable person would attempt to retreat from a volatile situation before using force in self-defense. Hence, the duty to retreat at common law that we kept after we won the war for independence.

Conditions in the western frontier of our country were not as civilized and sedate as back east. Out west the thinking was real men stand their ground and shoot your ass, if you mess with them, so the western states eliminated the duty to retreat. Their concept regarding what a reasonable man would do when threatened with violence was significantly more aggressive than back east.

As our society has become more suspicious and fearful of strangers, more and more people now appear to believe that a reasonable person would stand their ground meeting violence with equal or greater violence. The NRA and many people now think that the solution to our violent society is more people armed with guns.

Recently, in a blog within these hallowed halls, a person said we should require all teachers to carry guns in order to stop violence in schools. I think that idea is absolutely crazy and about as unreasonable as unreasonable can get, but there is no denying that a lot of people believe it’s reasonable. Fortunately, I think I am still on the majority side of this issue.

Whenever you see the word “reasonable” in a law, it means an objective, as opposed to a subjective standard. In other words, reasonableness is not based on the perception of any specific identified person, which is a subjective standard. It’s based on the actual facts and circumstances of a given situation and what a hypothetical reasonable person would do in that situation.

As I have said, Florida’s SYG law is not a license to kill. Yes, a person can stand their ground. Yes, they have no duty to retreat, Yes they can use force, including deadly force in self-defense, but only if a reasonable person in the same situation (i.e., the objective reality out “there,” as opposed to a particular person’s perception of it) would do so, AND they cannot use more force than is reasonably (i.e., there’s that damn word again) necessary to prevent being assaulted. A person can use deadly force in self-defense only if the objective facts and circumstances of the situation they are in, as opposed to their perception of it, are such that a reasonable person in the same situation would believe it necessary to use deadly force to prevent being killed or suffering serious bodily injury.

Trayvon Martin was unarmed. That is an objective fact and circumstance. George Zimmerman was armed with a gun and following him. That is an objective fact and circumstance. They had a physical confrontation. That is another objective fact and circumstance. These are undisputed facts.

One of them started the fight. That is another objective fact and circumstance, but we do not know for certain who did. The identity of that person is a disputed fact and there have been many arguments about it.

I believe Zimmerman did because he followed Trayvon against the police dispatcher’s request. He thought Trayvon was a burglar casing the neighborhood and he was frustrated because he thought Trayvon was going to get away before the cops arrived. We know that is what he was thinking (i.e., his subjective state of mind) because he said so. As I recall, his specific words were, “These assholes always get away.”

He also got out of his SUV and started following Trayvon and, after being pressed by the dispatcher to provide an address or location where the police officer could meet him, he said, “I’ve to get out of here,” and told the dispatcher to tell the officer to call his cell phone when he arrived in the neighborhood, instead of agreeing to meet the officer at the mailboxes as he had previously suggested. The mailboxes are located close to the clubhouse near the entrance to the neighborhood and would have been easy for the officer to find. The only problem with meeting the officer at the mailboxes was that he had lost sight of Trayvon, who ran behind some houses and he did not want him to get away. He then terminated the conversation.

The objective reality was that Trayvon was staying in the neighborhood and walking home after purchasing Skittles and Arizona Iced Tea at a nearby 711. Therefore, Zimmerman was mistaken.

Would a reasonable person have made that mistake? Would you or anyone you know have made that mistake?

Having made that mistake, what, if anything, would you have done upon encountering Trayvon?

And what about that loaded 9 mm KelTek semiautomatic in your holster? What, if anything, would you have done with it?

Was George Zimmerman a reasonable person that night?

A casual perusal of the 47 pages of his 911 calls to report suspicious activity strongly suggests that he was anything but a reasonable person. Those 47 pages are a damning indictment of a deeply paranoid person and I challenge everyone to read every freaking entry on every freaking page and then construct an argument that he was not a ticking time bomb waiting for the right stressor to set him off.

Why did George Zimmerman call the police that night? He saw an older teenage Black male wearing a hoodie type sweatshirt, jeans, and white tennis shoes walking around in the rain looking around at houses. I am surprised he even noticed him. Why call the cops? Why not ask him, if he needs help or directions? Don’t the police have better things to do than to respond to calls about supposedly suspicious people doing ordinary things?

A police officer cannot detain someone to investigate a possible crime, unless they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. A hunch is not enough. There must be sufficient objective facts and circumstances that would cause a reasonable person to suspect that the person was committing a crime. I do not see that here and I see no reason to summon police to investigate.

George Zimmerman likely knew all about the reasonable suspicion test since he is a student in a criminal justice program. That is one of the key concepts that is taught in those programs.

Nevertheless, George Zimmerman was certain that Trayvon was “up to no good” and, we know that because that is exactly what he told the dispatcher.

Knowing his state of mind when he ignored the dispatcher’s advice and he set off in search of Trayvon, which is something that no reasonable person would have done, what do believe he was prepared to do, if he found Trayvon and Trayvon was not cooperative?

What would a reasonable person have done in Trayvon’s situation? We know he knew he was being followed because that is what he told his girlfriend, when she called him moments before he was shot. We know he was afraid because he ran away from George Zimmerman.

Even if George Zimmerman did not start the physical confrontation, which I suspect he did, he still could not use deadly force in self-defense unless the objective facts and circumstances were such that a reasonable person in that situation would have used deadly force to prevent being killed or suffering serious bodily injury.

Perhaps George Zimmerman should have asked someone that night for directions to the house of the reasonable man.

I do not see a reasonable person doing anything George Zimmerman did that night up to and including his effort to find Trayvon. Nevertheless, this is not my judgment to make.

We have a legal system to decide what happened and what to do about it. We have due process of law with an adversarial system presided over by judges and we have juries to decide what happened. We will have to be patient and wait and see what happens.

In the meantime, we can wonder and while we wonder, we can conduct a diligent search for the reasonable man.

As an aside, why does our president believe he has and should exercise the power to unilaterally decide to kill someone just because he believes that person is a terrorist.

What is reasonable about that?


Stand Your Ground Explained

April 13, 2012

Florida self-defense law is a bit unusual, so I am going to explain how it works.

First, as I have stated in several posts here, here, and in comments to other posts, a person had a duty to retreat under the common law before he or she would be justified in using deadly force in self-defense. The SCOTUS abolished common law crimes in the mid sixties because they were a mish-mash of confusing and in some instances unintelligible definitions.

All crimes and their defenses are now defined by statute, or municipal ordinance and many of them are based on the Model Penal Code, which was put together by a panel of lawyers, judges and law professors. Most state legislatures adopted the Model Penal Code entirely, with some exceptions in areas where, for one reason or another, they wanted to retain a former law or procedure.

Second, most of the western states rejected the duty to retreat and you will find no mention of it in their self-defense or justifiable homicide statutes. Stand your ground, or SYG statutes merely abolish the duty to retreat. So, jurisdictions that have adopted SYG have merely joined the western states that long ago eliminated the duty to retreat.

Third, SYG is not a license to kill. Although a person may stand their ground without first retreating or attempting to retreat, they cannot use more force than is reasonably necessary to defend themselves. In other words, they may use such force as is reasonably necessary to prevent being assaulted.

The word “reasonable” means the test is objective, not subjective. That is, it’s based on the objective set of facts and circumstances, as opposed to a person’s perception of the facts and circumstances. In other words, a person may use such force as a reasonable person in the same situation would perceive as reasonably necessary to use in preventing an assault.

If they use excessive force, they become an aggressor and no longer are acting in self-defense. At this point, the original aggressor becomes the defender and now can use reasonably necessary force to defend against the use of excessive force.

Therefore, by definition, an aggressor cannot act in self-defense.

The use of deadly force is limited to those situations where, based on the objective set of facts and circumstances, a reasonable person would believe it was reasonably necessary to use deadly force to prevent being killed or suffering “great bodily harm.”

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

Fourth, there are no clear lines of demarcation during a battle between two people that separate the use of reasonably necessary force from the use of excessive force. At some point the line is crossed, for example, if A slaps B in the face and is about to slap B again, B cannot strike A with a baseball bat over the head to prevent another slap. Judges and juries do not like aggressors and when their victims get the upper hand and resort to excessive force, they are inclined to believe that the aggressor deserves it. In practice, therefore, an aggressor takes his victim as he finds him and if he loses the fight, no one is going to be sympathetic, and the person who whupped him will not be charged, unless his response was so extremely over the top that he basically used the initial assault as an excuse to kill or severely injure the person.

Fifth, is the concept of burden of proof and this is where Florida practice may differ from the law of self-defense in your state.

Under Florida law, a defendant can file a pretrial motion in a murder case under the SYG law asking the judge to dismiss the murder charge asserting that he stood his ground and his use of deadly force in self-defense was reasonably necessary to prevent being killed or suffering serious bodily injury. The court must then hold an evidentiary hearing.

This is how it will happen in the Zimmerman case:

Zimmerman must prove each of the following elements by a preponderance of the evidence (i.e., more probable than not) at that hearing:

1. He was not engaged in an unlawful activity (i.e., not committing a crime);

2. Trayvon Martin attacked him in a place where he had a right to be; and

3. He reasonably believed that his life was in danger or that he would suffer great bodily injury, if he did not use deadly force to defend himself. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

If the judge finds that he proved each of these elements by a preponderance of the evidence, then the judge must dismiss the murder charge and Zimmerman cannot be further prosecuted for the killing (i.e., for some lesser charge).

On the other hand, if the judge finds that he failed to prove each element by a preponderance of the evidence, then the judge must deny the motion to dismiss and the case will proceed in the usual manner.

The State can appeal a dismissal of the murder charge.

If the case proceeds to a judge or jury trial, then the burden of proof shifts to the prosecution, which must prove beyond a reasonable doubt that Zimmerman committed second degree murder (i.e., that he knew his actions were reasonably certain to kill and that he caused Martin’s death by committing an “imminently dangerous” act that showed a “depraved” lack of regard for human life). Due to an allegation in the information that he committed the crime with a firearm, the charge carries a minimum mandatory sentence of 25 years in prison and a maximum of life, if he is convicted.

The defendant also gets a second shot at his self-defense claim, except now the prosecution must prove that he did not kill Trayvon Martin in self-defense, either because Zimmerman was the aggressor or he used excessive force (i.e., he was acting unlawfully).

The prosecution’s affidavit of probable cause filed in support of the information charging Zimmerman with second degree murder asserts that he decided Martin was a criminal and he pursued and confronted him contrary to the police dispatcher’s specific admonition not to do so (i.e., he was the aggressor and acting unlawfully).

In other words, the prosecution will be attempting to prove that Zimmerman had no right to stand his ground because he was the aggressor. Zimmerman assaulted Martin and, under the prosecution’s theory of the case, Martin had the right to stand his ground and use reasonable force to defend himself.

I think the critical question that will decide the outcome of this case will be whether Zimmerman’s statements stand-up to scrutiny. If the prosecution can materially discredit his statements, the judge will deny his pretrial motion to dismiss under the SYG statute and the jury will find him guilty of second degree murder.

For those of you who believe the prosecution has no case because the person screaming for help in the background of the 911 call was George Zimmerman, even though he had a gun and two audiologists using different methodologies have independently excluded him as the person screaming for help to a reasonable scientific certainty, please consider the effect of the following testimony on the judge and the jury.

PROSECUTOR: Can you identify the voice screaming for help in the backgound — the scream that abruptly ends with a gunshot?

SYBRINA FULTON: Yes, I can.

PROSECUTOR: Are you certain?

SYBRINA FULTON: Yes, I am.

PROSECUTOR: Please tell the ladies and gentlemen of the jury who is screaming for help.

SYBRINA FULTON: That is my son, Trayvon, and those are the last words that I will ever him speak.

PROSECUTOR: Thank you. I have no further questions.


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.


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