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27
Jul

2013 Florida Bar Ethics Rules and Discovery Handbook – Download

There are a couple “rule books” ethical lawyers swear to.

The first is the Florida Bar’s Rules of Professional Conduct.  They are located here-

RRTFB Master

If you do civil litigation, which means wind up with cases in (civil not criminal) trial courts, you have to have some order and professionalism amongst lawyers. In 1994, the Trial Lawyers Section of The Florida Bar, the Conference of Circuit Judges, and the Conference of County Court Judges formed a joint committee to provide a forum for the exchange of ideas on how to improve the day-to-day practice of law for trial lawyers and trial judges. At the committee’s first meeting, it was the overwhelming consensus that “discovery abuse” should be the top priority.  They drafted the grandfather of these rules.

2013-discovery-handbook

 

 

27
Jul

State Farm Sues 1-800-Ask Gary for Unethical Practices

Here is the very contentions complaint filed by one of the nation’s largest insurance companies against one of the largest lawyer and medical referral services.

state farm v. pg complaint

With Morgan & Morgan and Farah & Farah spending $2 to $4 million or more per town per year in advertising and the “lawyer referral services” like Ask-Gary and 411-Pain often “double dipping” with firms like Farah & Farah, it often leaves the consumer out in the cold.  They no longer get to choose their lawyer, as they get whoever is “next up” at these firms to get a case.  And they often don’t get to pick an elite doctor, as so many lawyers are scrambling to get referrals from a referral service, which often wants the lawyer to send the client to particular doctors.

The lawyers who pair up with 411-Pain are located here:

411+Pain+List+of+Partipating+Attorneys+(09302012)

And the lawyers who pair up with Ask-Gary are located here:

1-800-Ask+Gary+List+of+Partipating+Attorneys+(10222012)

Pick your own lawyer and don’t let a commercial influence you.  There are a lot of small guys and girls out here charging less and doing more.

Feel free to contact us if accident or trouble finds you or a loved one.

22
Jul

Stand Your Ground – Why SYG’s Reasonable Belief Standard is Beyond Dangerous

Stand Your Ground – Why SYG’s Reasonable Belief Standard is Beyond Dangerous

Stand Your Ground, as codified in Florida and elsewhere, is entirely based on whether the person defending himself or herself held an instance of a “reasonable belief” that harm could occur.  This piece asks, what is reasonable?  And how can we determine what a reasonable belief is anymore?

When Florida Circuit Court Judge Debra Nelson issued the jury instructions in the second-degree murder trial of George Zimmerman, she read:

If George Zimmerman 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 or another or to prevent the commission of a forcible felony.

Here is the actual jury instruction read to Florida juries BEFORE the legislature’s enactment of Stand Your Ground:

The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force. The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force.

See the difference?  Juries used to judge a person’s actions and means to determine reasonableness.  Now they must determine reasonable beliefs.  I submit that is impossible.  An expressed belief is very difficult to impeach.  It forces juries to side with those who legally own guns as long as they say they were afraid.

History of Gun Ownership

Ownership of guns is a polarizing issue in our society.  Some claim historical entitlement.  They claim that the Second Amendment protects their rights to be armed.  The Second Amendment speaks of a “well regulated militia”- “well regulated.”  Yet, many of those who want to extend the Second Amendment fight regulation. Marion Hammer and the NRA want deregulation.  They want to sell to teenagers, teachers and even the preacher.

It’s a myth that gun ownership was common during the Revolutionary War.  Probate records reveal a lack of domestic gun manufacturers and a minimal number of foreign gun producers exporting guns to the US.  Further, these “militias” that were the focus of this, now more powerful, Amendment were so commonly mocked that seven states passed laws making it a felony to make fun of them and three states specifically outlawed joking about the militia’s poor skills at target shooting.  It took extensive training to learn how to accurately fire these large awkward muskets and took time to begin the killing process.  The forefathers were not able to contemplate the advancements in weaponry that now exists.  Some would argue they were not even able to contemplate racial and gender equality.  Even Thomas Jefferson believed every generation should modify the Constitution as society advances. But as the only Amendment directly linked to articles of million-dollar commerce and fear, it remains the Nation’s most powerful.

Stand Your Ground Took it to a New Level

Enter Marion Hammer, the NRA and Stand Your Ground.  Discussed here.  Even before it was enacted, some were already so empowered by guns or consumed by fear, filled with hate or scared by any pessimistic thought that “shoot first” was exactly what they wanted to hear.  Under the new Stand Your Ground laws, they could only be judged by their ability to justify their own irrational beliefs. And the dead tended not to disagree.

What is Reasonable?

Despite the abuse of a legally owned firearm by a man (who was a gun collector, trained to respect and use guns since the third grade according to his former lawyer) who was offended by loud music and decided to fire 9 or 10 shots at a gas station into a car of teenagers, neither Ron Davis, nor I want to repeal the Second Amendment.  Despite the senseless murder of 12 little girls and 8 little boys by a young man (whose wealthy mother purportedly taught him a respect of guns and had legally acquired the guns out of fear for self protection), neither Lucia McBath, nor I want to tell people they do not have the right to keep and bear arms.  Despite a man in Birmingham, Alabama initiating a gun battle in a hospital cardiology ward, wounding two Hospital workers and an officer because he felt the care of his wife was offensive, we still recognize these as exceptions to the norm.

Or are they? We might just live in a new (unreasonable) normal.

I am going to show some examples of the general degradation of our sensitivity and by no means am I saying that causes people to kill people.  I am saying the loss of sensitivity has changed us as a society.  No one can deny that.  We are a long way from Leave it to Beaver, from even Atari games, from it taking 3-4 days to develop photos to determine whether we had something of interest.  Even Nickelodeon’s “Kid’s Choice Awards” go to movies like “the Hunger Games,” where one boy and one girl aged 12–18 are selected by lottery to compete in a televised battle to the death or shows about “2 Broke Girls” who constantly joke about STD’s, reckless sex and the like or. Is that bad?  Maybe not.  But it is certainly different than how the network ran things when I grew up watching it.

Gone is Pac-Man, too.  Estimates say 40 million people per month play Call of Duty, a video game that teaches how to kill and give such specific knowledge that it provides far more advanced training than the militias of yore ever received.  One of Call of Duty’s military consultants, Retired Army Lieutenant Colonel Hank Keirsey said, “When I played the original Call of Duty, after being a soldier, I screwed up a couple things. I know to check corners and when someone jumps out I was kicking myself. It was sufficient and realistic enough that it gave me the damn willies. I was waking up in the middle of the night thinking I could do much better.” He also talked about playing against anonymous 12-year-olds online, saying, “Then you’re pissed off in multiplayer (mode) when some 12-year-old is kicking your ass. You think: ‘I do this for a living you little bastard.’ I’m going to crawl down your basement hatch and I’ll find you, you little … ”

That’s where we have come. Former military are doing press saying 12-year-olds are better at tactical operations than a Lieutenant Colonel, an officer with over 20 years of military training. Even if it is to sell games, it is ridiculous.  The latest edition, Modern Warfare, is based on the concept of the start of “World War 3.” The violence is specific and staggering.  Lieutenant Colonel Keirsey bragged in a recent interview that the developers are precise in their research making sure everything is real, even the feel and precision.  He mistakenly called the users “kids,” before correcting himself to say, “young men,” showing that the manufacturer knows who is actually playing these games. He joking encouraged users to do push-ups to concurrently physically train for when the “zombie apocalypse” becomes real and they have to apply those skills.  Shameful.

And then let’s look at television.  Dexter is a hit show in which the hero is a serial killer who kills serial killers by saran wrapping them down to a table before violently stabbing them in the chest, letting blood ooze on the covered floor. It has been nominated for eleven Primetime Emmy Awards (two wins), seven Golden Globe Awards (two wins), seven Screen Actors Guild Awards (one win), twelve Satellite Awards (seven wins), thirteen Saturn Awards (five wins), two PGA Awards, two TCA Awards (one win), five WGA Awards, a Peabody Award, and it was selected twice by the American Film Institute as one of the top ten best television programs of the year.  I, frankly, love it.  I also recognize that it is a very guilty pleasure.

An episode of the FX show, Sons of Anarchy, recently drew 4.67 million viewers. Rarely an episode passed without at least one person getting shot in the head.  Others were burnt to death and another character, in an interrogation room in the prison, had his head slammed down on a table, his teeth slicing into and severing his outstretched tongue, severing it causing him to spit it out.  We don’t even wince.  Gone are the days when blood was only shown in horror movies.  Studies have shown by the time the average U.S. child starts elementary school, he or she will have seen 8,000 murders and 100,000 acts of violence on TV.  Trouble is even more on the horizon.

Facebook and Twitter have led the charge to depersonalization of relationships and the possibility of instant notoriety in 140 characters or less.  If you say something mean enough or do something stupid enough, you can find 15 minutes of fame.  People exploit their children daily.  Or hash out their unhealthy relationships with the other parent of their child in callous, hateful fashion, but think these things will never happen to them.  That their kids won’t turn out this way.  Yet, 14-year-old girls are filming themselves jumping other girls and giving them brain damage- for fun.  It’s the kids of neglectful parents I worry about the most.  They are sponges of bitterness.

The craving to have more “followers,” or virtual friends that real ones has lead to increasingly desperate behavior.  I’d venture to say that the instant gratification and lowered attention spans that have resulted from social media and the invent of text messaging has psychologically changed our nation more than any other event in this country’s history.  We are more selfish, more hateful, more inclined to anonymously spew mean things than ever before because the bigots have a forum like never before.

So, I don’t think any of us are reasonable beings anymore. We’ve been rewired in just 5-6 years.  And Pandora’s box is wide open.  It is only going to get worse.  We are all watching and becoming more desensitized everyday- now as a man has turned a gun on his own mother and 20 children. You cannot un-hear that.  So, what do we do?  We have to protect ourselves from ourselves or America will be that country we used to look at as uncivilized- government in disarray and a populous divided, guns on the street, people spewing hate and fearful of each other. Or are we already there?

Trained to be Unreasonable

I have attended and obtained my concealed weapons permit.  In the 4-hour mandatory class, the two “teachers” spent most of their time on a sales pitch, pulling out 6-8 guns hidden on their person and detailing the merits of each.  They spent ample time discussing Stand Your Ground and other laws, preparing us for possible run-ins with the law and also pointing out they keep a law book they sell on the counter in their cars and homes just in case you need “quick help.”  They told us the places in town where guns were not allowed and to “boycott” them.  Most offensively, they taught the grey area of the law.  They explained it well.  I left that class knowing many there had just shot one bullet- the first and only bullet they might have shot in their lives and now they were armed with fear and a non-lawyer’s rendition on the law.  How dangerous is that?  And this person gets to walk around in public around my child with a gun?  Basically, they fueled acceptance of killing.  They took a 100 or so people and the fear and concern they had justifying them to get a concealed weapons permit and sought to empower them to not only defend themselves, but to arm themselves with enough “reason” to get away with it.  Oh, my God- there are thousands (or more) of people per week undergoing this training in America.

So, what is Reasonable?

Reasonable is everything now.  It is all of us.  Even those who choose to arm up and “shoot first.”  They are legally reasonable. Even those who shoot and kill over an argument over placement of garbage?  Even those who bring a .38 to the door and kill someone on their doorstep who had no criminal designs.  Reasonable could be someone at a red light who jumps out of a car in a rage of anger and gets into a shoot-out in the street.  Reasonable is unreasonable.  Unreasonable is reasonable under Stand Your Ground.

The Stand Your Ground Serial Killer Possible?

I posed that question for the first time on national TV here.  But what if -and this is just a hypothetical- George Zimmerman is as much of a “wanted man” as his own family and legal counsel claim.  And what if -and this is still just a hypothetical- someone he considers menacing (a black child with candy, soft drink and a possible bad attitude) comes at him in his car or in a store- fist in the air, angry with him, seeking to do him harm- or at least justifiably so in Zimmerman’s mind.  Can he shoot and claim self defense again?  And again?  And again?  Where is the line of defense of self and reason?  Ladies and gentlemen, welcome to the world where the Stand Your Ground killer is not only legal, but he (or she) is festering among us.  ‘Dexter’ could run four more seasons if they dare approach the laws of lethal force and Stand Your Ground in Florida alone.

Conclusion

I am scared.  So, I guess the NRA and Marion Hammer wanted us all to arm up because the person coming up your sidewalk may want to kill you.  Shoot first.  He looks like he is “packing.”  Or is that just the mailman?  Don’t ask questions.  Stand Your Ground does not require reasonable acts just a reasonable belief.  BANG!

21
Jul

Stand Your Ground – Why the Civil Immunity Provision is Unconstitutional

Stand Your Ground – Why the Civil Immunity Provision is Unconstitutional

In Florida and other states, a successful defense using the “Stand Your Ground” statute not only bars criminal liability, but deems the justified homicide free from civil liability as well.  Since its inception (learn about its origins here), I cannot see where there has ever been a challenge to the civil immunity provision in the criminal court system.  It has just been taken for granted as law.  It’s unquestionably unconstitutional.

The Stand Your Ground Civil Immunity Provision states:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Florida tort (that’s the funny name for civil liability) law is based on comparative negligence.  Even in a situation where liability seems clear, such as a rear-end collision, the law allows the jury to determine how much each party contributed to the overall fault of the situation.  It states:

768.81 Comparative fault.—

(2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.
(3) APPORTIONMENT OF DAMAGES.—In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.
Stand Your Ground was founded on immunity for what a jury might deem a negligent act- a man shot and killed a FEMA worker checking on him and his trailer.  It was a mistake.  Zimmerman surely negligently contributed to the peril that resulted in Trayvon’s death.  The Home Owners Association even acknowledged it with a reported seven-figure civil settlement.  In Jordan Davis’ case, Michael Dunn has essentially admitted a case of negligence through his lawyers.  Taking him at his word (I won’t) that he was simply firing warning shots and never meant to kill anyone, even if he was standing his ground (he wasn’t), the terror that he inflicted on the surviving passengers with not one, not two, but a series of ten bullets is actionable.  His defense of a “negligent homicide” is a basis for a civil suit.  Why should the living victims never be allowed to be heard in a civil court? Why should Jordan’s estate never be able to recover funeral expenses when the whole body of tort law says he is entitled?  How can a criminal court judge be so powerful as to take away the victim’s rights usually left up to a jury?  Because Marion Hammer, the NRA and their Stand Your Ground provision set up an unconstitutional system to forbid victims from ever being heard on the matter.

The State is the only one who gets to be heard in front of the Court on Stand Your Ground issues.  The State does not truly represent victims.  The victims have no true voice.  The victims could possibly file a writ of prohibition, seeking to preempt a ruling on civil immunity and preserving appellate argument on the unconstitutionality of the issue, but it would delay the criminal trial and, with that, delay justice to the killer.

Even Eric Friday, attorney for Florida’s Open Carry advocacy group, told me he sees my point. I don’t think it has ever been brought up.  The State can’t bring it up- they won’t delay their own case, they don’t want to acknowledge lessened liability to the killers, they don’t want to create a backlog.  Public defenders and private defense counsel won’t ever mention it because they like their clients to be immune.  Stand Your Ground’s civil immunity provision is a Victims Right’s issue as a criminal court judge is extinguishing civil court rights without allowing the victims be heard.  We seek to fight it.

Why the Civil Immunity Provision is Unconstitutional:

I. Stand Your Ground provides civil immunity- the battered or killed victims can never seek true justice on his/her own.  Florida civil tort law is entirely based upon comparative fault. To impose civil immunity conflicts and eliminates that entire body of law. Negligence is the failure to use reasonable care.  Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.  So, someone could have not used reasonable care, been reasonably careful and simply “Stood Their Ground” negligently, but the victim’s rights would still be taken away completely.  An unreasonable person could do something unreasonably, kill someone and be given immunity from liability.  It is contrary to the foundation of Florida’s civil justice system.  Victims have no rights.

II. Victims are not allowed to be adequately represented, conduct discovery & have their lawyers heard in Stand Your Ground hearings.  The State does NOT represent victims. The ONLY place a victim has ANY real voice is in a civil case.  The victim can’t call witnesses, can’t pick the jury, can’t make closing arguments, can’t even hire an attorney to help prosecute the criminal case.  He or she has ZERO voice.  The State represents the People of Florida, not each victim.  Assistant State Attorneys carry large case loads and many use the position for training to go into private practice.  They want to get justice for the people of the State, and do not have to get victim consent to plea bargain or prosecute.  They leave financial restitution up to the civil courts in many instances.  To have them SOLELY representing the victims isn’t fair, as they are too overworked and have a different job to do for the citizens at large.  Victims have no voice.

III. The criminal discovery process, criminal court judge & criminal burden entirely different than civil process.  Yet the criminal usurps the civil system?  The criminal burden is “beyond a reasonable doubt.”  The civil burden is the “greater weight of the evidence.”  The State has a difficult burden and is often trying to prove the killer had intent or acted maliciously beyond that reasonable doubt.  The State “loses” if they simply prove the killer acted negligently or carelessly and the killer walks.  So, the State may not conduct certain discovery or ask certain questions for fear it’d be adverse to their case.  In civil court, the negligent or careless standard is enough, and they only have to prove it was more likely than not, so the civil lawyers tend to focus on areas the criminal lawyers do not.  The system has too much gray area in between.  The victims can’t be heard, have favorable testimony introduced or otherwise make a case as to why there may be civil liability despite the State not being able to prove their case.  The victims burden is less but they can’t be heard.

IV. There are bona fide US & State Constitutional Rights taken away when the criminal courts interfere with civil rights. It is why there are two separate systems and two separate standards.  Why should a criminal court be able to extinguish those civil rights usually left up to a civil court judge?  It’s why we filed the civil suit, so we have our own judge to potentially address those issues.  The victim’s Constitutional Rights cannot be ignored.

V. Immunity, if granted, cannot be appealed by the civil litigants. They have no standing in the criminal suit, it denies their access to courts and the ability to freely chose their own lawyers, present their own case and tip the scales with a far lessened burden.   The victim’s appellate rights cannot be ignored.

VI. And the Statute even gives the killer attorneys’ fees and costs for even trying to seek the protection the laws of Florida and the US Constitution allow.  The victim gets victimized for even challenging the unconstitutional law.

VII. Absolute immunity somewhat unprecedented, especially without a peer determination. Even sovereign immunity is not absolute.  Even the government must answer to the citizens of this country- to the victims’ peers.  So how come someone unreasonable can get away with killing if even the government cannot?  The NRA is more powerful than the government?  Let’s hope not.

Conclusion

We invite any lawyers seeing cases of this to consult with us.  We will do the writ and/or appeal for FREE in exchange for the chance to bring a viable civil suit.  Civil law judges people based upon “reasonable.”  We can’t let an unreasonable law empowering sometimes unreasonable people to unreasonably take away the voice of victims.

21
Jul

Gerry Spence, Court TV, Trayvon Martin and Me

Gerry Spence, Court TV, Trayvon Martin and Me 

In a strange way, I was shaped as a lawyer probably as much by my attention to Court TV, as I was my grandfather and great grandfathers who were “real life” lawyers.  The stories of William Kennedy Smith, Jeffrey Dahmer, the Rodney King officers, the Menendez brothersand more importantly their victims– grabbed some of my attention in high school, but by college, O.J. Simpson’s “gavel-to-gavel” coverage solidified my desire to be a trial lawyer.  I watched most of the Simpson trial and those commenting on it- like the ultimate Monday morning legal quarterback, Gerry Spence.  As I tell clients, trial law is like being the producer, director and narrator of an elaborate live-action play.  Lives are often literally on the line.  No wonder it gets such attention and ratings.

I am in a unique position on both sides of the equation. I have not only recently been in Gerry Spence’s shoes, commenting on the trial of George Zimmerman for a national broadcast as the verdict was read, but also represent Jordan Davis’ family, a high profile case that may receive coverage of its own.  And in this position, I see the trial of George Zimmerman and the death of Trayvon Martin as a tragedy with no winners.  All Trayvon’s mother wanted was for the justice system to let her son’s death be worth a jury vote.  And she didn’t want to feel she let her son die in vain.  Zimmerman wanted to be judged on his view of the law, whether you like it or not.  I submit we would all would want the same as both of these families wanted after such a tragedy.

To that end, I want to thank John Guy in particular.  With all of the pressure, with all of the cameras and reporters, with all of the politics and racial strife, John Guy gave a touching and impassioned argument on behalf of a child who lost his life.  I envision a generation of black and white kids touched by his passion, desiring not just to be another lawyer, but wanting to make a difference.  It is precious and rare in our profession.  I told him so.

An original civil rights pioneer, Abraham Lincoln, often said “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”  We, as a country, were founded on freedom- freedom to do, say and act how we wish.  It was a system of ideals – a literal Constitution- that stemmed from oppression and longing for expression.  But that very freedom was tucked inside Pandora’s Box.  Because my free expression and  your free expression (or desire to avoid my expression) may contrast. Our grandfathers may not have valued each others’ rights, but that doesn’t mean that we have to hold on to that.  We cannot hold on to that.  Pandora’s box of freedom is open and making everyone upset, some people crazy and dividing this nation further.  As KRS-One rapped, “Self destruction, you’re headed for self destruction.”  We have taken it too far and for granted and we are faltering.

Even though some hold sacred the (extended) Constitutional Right to the violent ‘defense of self’ “guaranteed” by the Second Amendment, other Amendments have had to be drafted to provide rights to women and minorities- to force peace and equality.  Some now use those very Second Amendment guarantees to define freedom in America. I think Lincoln would define that as “faltering.”  We cannot impinge or insult one another and use the Second Amendment to bail ourselves out of trouble.  We cannot be violent mice waiting for our tail to be stepped on to teach the great elephant a lesson.

What if -and this is just a hypothetical- George Zimmerman is as much of a “wanted man” as his own family and legal counsel claim.  And what if -and this is still just a hypothetical- someone he considers menacing (a black child with candy, soft drink and a possible bad attitude) comes at him in his car or in a store- fist in the air, angry with him.  Can he shoot and claim self defense again?  And again?  And again?  Where is the line of defense of self and reason?  Ladies and gentlemen, welcome to the world where the Stand Your Ground killer is not only legal, but he (or she) is festering among us.  ‘Dexter’ could run four more seasons if they dare approach the laws of lethal force and Stand Your Ground in Florida alone.

Freedom is not black and white, it is not pro-gun and anti-gun, it is not to insult, rage or take life in our own hands unreasonably.  That freedom will perish if we do not find a way to learn from these events- kind of like those kids listening to John Guy, kind of like me 15 years ago- inspired education.  Let’s learn from this and heal and set the bar of whether or not to take a life higher.

20
Jul

Stand Your Ground – How it Came to Be

Stand Your Ground – How it Came to Be

What the Jury Hears Now and Before

When Florida Circuit Court Judge Debra Nelson issued the jury instructions in the second-degree murder trial of George Zimmerman, she read:

If George Zimmerman 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 or another or to prevent the commission of a forcible felony.

Here is the actual jury instruction read to Florida juries BEFORE the legislature’s enactment of Stand Your Ground:

The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force. The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force.

When was Stand Your Ground First Uttered?

johnparkerOn April 19, 1775, John Parker was the captain in command of 77 members of the Lexington militia when, according to history, he issued the famous order: “Stand your ground; don’t fire unless fired upon, but if they mean to have a war, let it begin here.”

Except he didn’t. A veteran of the French and Indian War, John Parker had fought at Louisburg and Quebec before becoming the key figure at the opening battle of the American Revolution. His legendary quote is even engraved on a monument on Lexington Green. However, historians have acknowledged this quote was fabricated in the 1800s and is not accurate to 1775. By Parker’s own sworn deposition, as the British troops approached, realizing that his force was greatly outnumbered, he gave his men the order to disperse.

He retreated. To save life. Revisionist History.

Fast Forward to Florida

The Stand Your Ground conversation blew into Florida in November of 2004. James Workman moved his family into a Federal Emergency Management Agency trailer outside of Pensacola after his house was badly damaged by hurricane Ivan. Workman heard a noise outside and thought someone was trying to break in. The “attempted burglar” was stopped with Mr. Workman’s .38 revolver. The stranger turned out to be a disoriented temporary FEMA employee, who was checking for looters and distressed homeowners. Workman was never arrested, but three months went by before authorities cleared him of wrongdoing.

That same year, the NRA awarded State Rep. Dennis Baxley its “Defender of Freedom” award. Baxley repaid the NRA with bolstering Workman’s case into a political movement. Four hurricanes hit the state that year and there was fear about widespread looting. The looting ever happened.

But in Baxley’s view, Floridians who defended themselves or their property with lethal force shouldn’t worry about any legal repercussions. The NRA Defender of Freedom wanted gun owners to have the freedom to defend themselves no matter of being right and wrong. Baxley convinced Florida Senator Durell Peaden to propose what would become known as “Stand Your Ground,” a law eliminating any duty to reason or retreat for legal gun owners.

Insert Marion Hammer. At under 5 feet tall and over 75 years-old, Marion Hammer isn’t who you think of when you close your eyes and think “gun enthusiast.” And then you read about her- a former NRA president and founder of the Unified Sportsmen of Florida, a heavy hitting NRA affiliate, allowing the NRA to double donations. Her own NRA bio says she, “began handling firearms as a toddler.” Throughout her career, Hammer has been portrayed as something of a “cross between a chain-smoking bulldog and a steely-eyed, uncompromising drill sergeant” and that’s by those that like her. “Generally, the NRA brings out the redneck good ol’ boys with the gun racks, but when you scratch Marion, she’s no different,” Harry Johnston, a former Florida State Senate president, said in 1987. “She’s a good ol’ boy in a skirt.” The NRA and similar gun-rights organizations pay her hundreds of thousands of dollars each year for her decades of influence.

Baxley and Peaden claim they got the idea from lobbyist Marion Hammer, but they wrote the bill. Hammer claims she got the idea from the Florida legislators, but the NRA wrote the bill that ultimately became Florida law and then model legislation adopted by over half of the US. “Most legislation is written by lobbyists, legislators and bill-drafters,” Hammer said. “In most cases, legislation comes about as a result of some action that causes legislators to believe that there is a need for remedial legislation. (The) NRA did help draft the Castle Doctrine Law and Senator Peaden was the one that came to us and said we have a bad situation here and we need to do something about it.” She added, “he came to us, we helped draft (Stand Your Ground), he took it, he put it in the bill drafting, it came out of bill drafting, it came through the process, it passed.” 150px-NRA_lobbyist_watches_Jeb_signAll told, more than a third of the Florida legislators who co-sponsored the Stand Your Ground bill enjoyed the NRA’s financial backing between 1996 and 2005. The NRA also maxed out on direct contributions to Governor Jeb Bush’s gubernatorial campaigns in 1998 and 2002, and it gave $125,000 to the Florida GOP between 2004 and 2010—more than it gave to any other state’s party.

When the Florida Stand Your Ground bill, that became the ALEC model, was signed into law on April 26, 2005 by Governor Jeb Bush, Marion Hammer stood alongside. For emphasis let me repeat, the NRA’s greatest and most longterm lobbyist solely stood right next to the Governor of Florida as he signed the law she drafted. And some say the NRA isn’t powerful?

ALEC and the NRA

From Florida, the Stand Your Ground law spread with the help of ALEC. ALEC is the American Legislative Exchange Council (ALEC), a 501(c)(3), Washington, D.C. based group that lobbies for conservative laws in state legislatures. Some of the nation’s largest and richest companies, including Koch Industries, Exxon-Mobil, and AT&T, have joined forces to invest millions of dollars each year. It counts among its members some 2,000 state legislators and corporate executives. Wal-Mart was one of their largest sponsors.

In 2005, Walmart was the nation’s largest seller of guns and ammunition. The Waltons and Walmart have reaped financial benefits from many ALEC bills- heightened regulations on swap meets and flea markets, increased penalties to steal from its stores, harsher penalties for thieves who leave stores through the emergency exit door and a host of others. Until very recently, Walmart and the Walton Family Foundation have consistently been listed side-by-side as chairman-level sponsors of ALEC’s meetings, as well as its overall agenda. In 2005, Wal-Mart executive Janet Scott co-chaired ALEC’s Criminal Justice Task Force (it later became the Public Safety and Elections Task Force in 2009). Maggie Sans, Walmart’s vice president of public affairs and government relations, served as secretary of ALEC’s private enterprise board.

NRA_2005In August 2005, in Grapevine, Texas, the National Rifle Association successfully lobbied the Criminal Justice Task Force to support legislation ending the duty to retreat from any encounter, allowing people to stand their own ground. In executive boardrooms leading up to this event, ALEC drafted a “model” law it sought to press onto its membership in early 2005. Minutes documenting a 2005 meeting from an old ALEC website show that Marion Hammer of the National Rifle Association (NRA) personally pitched the Florida law as model legislation to ALEC’s Criminal Justice Task Force. An old NRA update also documented the meeting. “Her talk was well-received, and the task force subsequently adopted the measure unanimously,” the NRA wrote in an Aug. 12, 2005 post on the NRA website. Marion did it again- based on Florida’s unsubstantiated fear of looting and words a militia man never said.

Spreading Influence

With ALEC and Marion Hammer’s help, Florida began exporting its laws to other statehouses. “We definitely brought that bill forward to ALEC,” said Florida Legislator Baxley. “It’s a place where you can share ideas. I don’t see anything nefarious about sharing good ideas.” Since 2005, the year Florida’s law was passed, gun manufacturers like Beretta, Remington, and Glock have poured as much $40 million into the NRA’s lobbying coffers.

Two years after Stand Your Ground passed in Florida, the number of “justifiable homicides” by civilians more than doubled, and it nearly tripled by 2011. The FBI statistics show a similar national trend: Justifiable homicides doubled in states with Florida-style laws, while they remained flat or fell in states that lacked them. According to a Tampa Bay Times analysis of public records and newspaper clips, Stand Your Ground has been invoked at least 130 times since its passage in 2005, including a dramatic spike during the past 18 months. In more than 70% of Stand Your Ground cases, it was used as self-defense in a fatality. In at least 50 cases, prosecutors declined to bring charges. Another nine defendants were given immunity in court, while nine more saw their charges dismissed. In Florida, claims of justifiable homicide in Florida have tripled since the law’s passage in 2005.

In April, ALEC disbanded the panel that pushed Stand Your Ground and redirected funds to “task forces that focus on the economy.” Wal-Mart has also stepped back from ALEC. But the damage was done. They have sold fear and power in records numbers.
Back to Florida

Since 2005, Florida lawmakers have taken aim at gun control with a barrage of deregulation measures:

  • Requiring employers to let employees keep guns in their cars while at work
  • Requiring city and county governments to allow guns in public buildings and parks
  • Lifting a long-standing ban on guns in national forests and state parks
  • Allowing military personnel as young as 17 to get concealed-weapons licenses. (Age limit remains 21 for everyone else.)
  • Withholding the names of concealed-carry licensees in public records
  • Permitting concealed-carry licensees “to briefly and openly display the firearm to the ordinary sight of another person.” (The original bill would have allowed guns on college campuses, but it was amended after a GOP lawmaker’s friend’s daughter was accidentally killed with an AK-47 at a frat party.)
  • Prohibiting doctors from asking patients if they keep guns or ammo in the house unless it’s “relevant” to their care or safety. (Overturned by a federal judge.)
  • Allowing legislators, school board members, and county commissioners to carry concealed weapons at official meetings. (Didn’t pass; another bill to let judges pack heat “at any time and in any place” died in 2009.)
  • Designating a day for tax-free gun purchases. (Didn’t pass.)
  • Exempting guns manufactured in Florida from any federal regulations. (Didn’t pass.)

If you don’t like like being led by someone you never elected, It isntime to speak out. It is time to register to vote, to realize there will be no justice if we keep electing those who allow the gun-packing little old lady to buy their time, to do more, say more and realize this isn’t just a race issue. We will talk more about the flaws in the little old gun packing lady’s law in upcoming posts.

SYG

17
Jul

Man Robs Bank, Then Waits Patiently for Police to Arrive… But did he Really Break the law?

If you rob a bank on purpose and immediately tun yourself in, what are you guilty of? According to Alabama law, you are guilty of first-degree robbery and first-degree theft. However, Jacksonvile, Florida attorney T.C. Roberts disagrees and believes the charges should be dropped.

After injuring his leg, Alabama resident Rickie Gardner was in fear of losing his job and wanted to avoid living on the streets. To Rickie, the best option for avoiding homelessness was to live in a place with a bed, free rent, free cable, A/C and  three free meals a day. For Rickie that place was jail. He decided that robbing a bank would be the quickest way to get to jail. So Rickie robbed a bank with a note that said, “I have a weapon, give me all of your money.”

“He told the teller to put the money in a bag,” ABC reports, “Then he walked out of the bank with more than $4,000. He got in his car, put the bag on the passenger seat, got out and locked the car. He strolled over to the bench, sat down and waited on police.”
“He was adamant his whole deal was he’d have a place to live and a place to eat.” Police Chief Lyndon McWhorter said Tuesday.

Attorney T.C. Roberts disagrees, “This man may not get his room and board for long as these charges should be dropped.” Roberts says, “As sad as this story may be, this man should not be charged with a crime.  Theft and robbery are specific intent crimes that require the perpetrator to intend to take and carry away the items (or money in this case) with the intent to permanently deprive the owner of the items.   Here, this man intended to take and carry away the cash, however, his actions indicate that he did not intend to permanently deprive the bank of the money.  In fact, he safeguarded the money in his locked car until the police arrived to take him into custody.”

I want to now what you think? Leave your thoughts in the comments below.
17
Jul

Legal Links: Legal, Sports and Weird News

Would Edward Snowden be convicted by an American jury? (ABA)

Tired of your cell phone battery dying? Worry no more – researchers invented a battery that uses urine to charge it (The Independent)

A couple punches a lifeguard in the face because his whistle blowing was “aggravating their hangover.” (CBS Boston)

Awesome Twitter by a guy who ran on the field at last nights All Star Game (Brobible)

Is a law degree worth it? Report finds that law grads will, on average, make $1million more over their lifetime than their bachelor degree peers (ABA)

Johnny Maziel denies rumors of being “hungover” at  QB camp, kicked out. A college kid consuming alcohol is making headlines? (ESPN)

Lakers are eyeing LeBron for 2014. Will he leave? Once a cheater, always a cheater. (ESPN)

*Bonus Video*
Get through your post-lunch, mid week depression by watching this guy breaking up with young women he has never met before is quite entertaining.

16
Jul

C&S Video Viewsday

I could not help but share this video…

New York Mets All-Star pitcher Matt Harvey asks fans about Matt Harvey, hilarity follows.

15
Jul

A Few Points From a Worried Mind About Trayvon Martin and George Zimmerman (and Our Nation)

By John M. Phillips

An original civil rights pioneer, Abraham Lincoln, often said “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”

We, as a country, were founded on freedom- freedom to do, say and act how we wish.  It was a system of ideals – a literal Constitution– that stemmed from oppression and longing for expression.  But that very freedom was tucked inside Pandora’s Box.  Because my free expression and your free expression (or desire to avoid my expression) may contrast. Our grandfathers may not have valued each others’ rights, but that doesn’t mean that we have to hold on to that dowry of hate.  We cannot hold on to that.  Pandora’s box of freedom is open and making everyone upset, some people crazy and dividing this nation further.  As KRS-One rapped, “Self destruction, (we)’re headed for self destruction.”

Even though some hold sacred the Constitutional Right to the violent ‘defense of self’ guaranteed by the Second Amendment, other Amendments were drafted to provide rights to women and minorities- to force peace and quality.  It means our forefathers were wrong sometimes, too.  Even Thomas Jefferson thought the Constitution of this nation should be redrafted every generation or so.  Yet, some now use those very Second Amendment guarantees to define freedom in America. Lincoln would undoubtedly define that as- “faltering.”  We cannot impinge or insult one another and use the Second Amendment to bail ourselves out of mere free or misunderstanding.  We cannot be violent mice waiting for our tail to be stepped on to teach the great elephant a lesson.

What if -and this is just a hypothetical- George Zimmerman is as much of a “wanted man” as his own family and legal counsel claim.  And what if -to continue that hypothetical- someone he considers menacing (a black child with candy, soft drink and a possible bad attitude, perhaps) comes at him in his car or in a store- fist in the air.  Can he shoot and claim he was standing his ground or was in defense of self?  And do it again?  And do it again?  Where is the line of defense of self and reason?  Ladies and gentlemen, welcome to the world where the Stand Your Ground killer is not only legal, but he (or she) is festering among us.  ‘Dexter’ could run four more seasons if the writers dare approach the laws of lethal force and Stand Your Ground in Florida.

I respectfully ask -so what- that you agree Michael Dunn was wrong to kill Jordan Davis.  It won’t bring Jordan back– a college bound kid with a more potential than Dunn ever had.  It is time to stop the faltering.  Or it is time to give up on some freedoms.  Or just to find some common thread of kindness.  We are headed towards self destruction.  I don’t need you to agree, I need you to act.

As for Zimmerman, the jury has spoken.  Yet, the jury had a -still- unanswered question before it spoke- a question I still ask -why didn’t anyone explain manslaughter?  When you drive recklessly and kill someone, it is arguably manslaughter.  When you act carelessly with a firearm, it is arguably manslaughter.  When you kill someone with the intent to simply pull the trigger, it -legally- is manslaughter.  And it was never argued.  And I don’t believe it was self defense for any of about 50 reasons located here.  The Prosecutors’ silence to omit manslaughter is only made louder by their desire to go on every talk show and justify their failures.

My only request, you have trial in less than two and a half months of a murderer who never had a hair harmed, ever called the police, who just went to his hotel and ate pizza after shooting ten times in a car, killing Jordan Davis- Because Stand Your Ground told him he could.  And this nation falters under bad attitudes and worse laws.  Get to work, please.  Justice depends on it.

11
Jul

Mug Shot of the Day

You will never guess what this guy went to jail for. Go on,  take a good look, try to guess what he did. Did you guess that this man was caught having sex with an inflatable pool raft? Well, that is exactly what he did. Shocker, this is the second time he has been arrested for having sex with an inflatable raft. Shocker number 2, he had sex with the same raft in both instances – seriously. Read more here.

RAFT SEX-EDWIN-TOBERGTA-large570_640_267_s_c1_center_top_0_0

11
Jul

Legal Links: Legal, Sports and Weird News

Freedom of Speech? No thanks: 7 people who have been arrested because of something they wrote on Facebook (Business Insider)

If the SCOTUS/Anthony Kennedy do not intervene, California will release 10,000 prison inmates (Business Insider)

Lawyer abandons his $200k Ferrari to get to court on time (Above the Law)

Attorney John M. Phillips gives his case for a conviction of manslaughter of George Zimmerman (Know The Lawyer)

Death Valley is so hot you can fry an egg- literally…And it is becoming a problem [Video] (Yahoo! News)

Here is one of the better summaries of the Aaron Hernandez situation (US News)

A second Denver Broncos executive is facing DUI charges (CBS Sports)

A woman was caught trying to to hire an undercover cop to kill her husband, because “divorce” and “breaking his heart” were not options (YouTube)

Boston Marathon bomber Dzhokhar Tsarnaev is due in court today, makes first public appearance (Chicago Tribune)

World’s largest debt collection agency agrees to pay record settlement of $3.2 million for harassing individuals with phone calls (ABA Journal)

9
Jul

I Think Florida Just Banned Your Phone.

This past march, a ring of internet cafes operated by Allied Veterans fo the World  was shut down after a federal investigation found that the “sweepstakes” cafes were illegally (racketeering and money laundering) bringing in over $300 million. Action News Jax reported, “Investigators claimed Allied Veterans raked in hundreds of millions of dollars from a fraud ring that used Internet Cafes as a front throughout Florida.” In the end 57 people were arrested.

scott2

In response to the illegal gambling ring bust, Florida Governor Rick Scott signed off on a bill to ban all internet cafes in Florida that offer games of chance. But it appears that Governor Rick Scott treated the bill like the “agree to terms and conditions” button you click when you buy something on itunes. You just kind of want your song and you just start clicking, “agree” without reading any of the actual terms, conditions or writing. Well Governor Scott must have just started signing everything because he just kind of wanted to ban internet cafes. Why do I think this? Because the the bill banning most internet cafes defines illegal slot machines as any “system or network of devices” that may be used in a game of chance.* Your computer and smart phone most likely have internet access. That would classify them as devices on a system or network. Additionally, your computer and phone probably have games like solitaire, Candy Crush, or Bejewelled which would probably all be considered games of chance (I would consider Angry Birds a game of skill, games of skill are legal in Florida*). In effect your phone and computer are both devices on a system or network of devices that may be used in a game of chance.

*So what is a game of chance? As explained in our previous post, The legality of Online Gambling on Fantasy Sports: What’s the Line?, “A game of skill requires the player to have one or more of the following: A knowledge of the game strong enough to give the player an edge, a highly developed strategy or tactic, superior physichal abilities and the ability to use one’s knowledge effectively and readily in execution or performance. Games of chance on the other hand require much more luck than skill”

9
Jul

George Zimmerman – The Case for Manslaughter (Because It’s About My Child, Too)

atticusGeorge Zimmerman – The Case for Manslaughter

(Because It’s About My Child, Too)

by John M. Phillips

I keep asking myself- have we opened Pandora’s Box so wide that what George Zimmerman did is ACTUALLY legal and reasonable and entirely free from punishment? Early on, I thought it might be.  Before I saw a deceased Jordan Davis and consoled his tearful parents, before Newtown, before spending months really looking at this country, I thought George Zimmerman was just “looking out for his own neighborhood” and might have had to shoot to protect his own life.  And then I looked at life around me.  And then I looked at all of the unreasonable and avoidable actions and inactions that caused him to take Trayvon’s life.

I start with a little about me and my family and what I learned about fear and prejudice in America.  We were burglarized last August.  Seeing my crying wife hold my crying child while police invaded our invaded house, made me wonder- do we all need to arm up to prevent the bad from taking over.  With this thought and $50, I wound up with about 100 others in a Concealed Weapon Permit class, driven there by fear.  This only made my fear worse.  That was the its design- profit off of fear.  Fear sells guns and breeds contempt and power.

The class was put on by a gun store with a cheesy name and the two men who ran the class were like circus barkers:

FoCWPBadger just $162 and 4 hours, you, too, can be master of the universe.  We even sell a book written by the top gun lawyer in the country, which you must buy.  It tells you how to ‘get away’ with self defense.  Live in the grey area of the gun laws.  It tells you more than just, ‘don’t shoot them in the back,’ but what Stand Your Ground really means and how it protects your rights as an American citizen.

The two gun store employees proceeded to tell us more about boycotting certain specific businesses who did not allow guns on the premises than the laws we needed to know.  Over the four hour presentation, they each pulled out six or seven guns from their various hiding spots, taking a few moments to give the sales pitch on each. I was so entranced, I actually bought one of the guns they pitched- the Bodyguard. They did well that day.  They sold- America.

And, as I went alone, I remember just listening to the conversations around me.  It was a few weeks before the 2012 Presidential election and most were there in fear of the re-election of “the black President.”  Others had bought the NRA’s propaganda that the FBI was coming door-to-door to take guns or that permits would be more tightly regulated.  Some spoke against the “thug” in Sanford who had been shot and speculated on who he was “staking out.” The rise in crime, the fear of minority power and other conspiracy theories drove quite a few people there to join the 1 million Concealed Weapon Permit holders in the State of Florida.  Some had been victims.  Some just wanted to feel less fear. All craved the lustful taste of power over fear a gun was promised to provide.

I left, hanging my head in shame.  Who had I become?  Had I let fear overcome me? Having grown up in the great State of Alabama, I knew racists.  But they were only racists when they were around those they trusted.  Now, racism is openly justified by crime reports, broken politics and black teenagers in the wrong place at the wrong time. Holy shit.

And then, weeks later, the God above put me on the couch of Ron Davis. His son, Jordan Davis was just shot and killed by a man with a gun in his glove box.  Michael Dunn’s infamous last words were, “you aren’t going to talk to me like that.”  People say it was about loud music, but it was about where we are as a society.  It was about hate and intolerance, not race as I said in one of the first national interviews I did on the matter. I sat there with tears pouring down my and my associate’s faces- a broken man.  Ron and Lucia had media trucks following them trying to scoop one another.  All three local stations knocked on the door while I was there.  Days earlier, he was a happy father hearing his son lead the Thanksgiving prayer for the first time, and now he was a broken man because of another broken man- Michael Dunn and his legal gun and the empowerment and control it brought him.  He claims self defense and Stand Your Ground, as well.

We will deal with that matter in due course, but it changed me.  It changed the way I view life and tolerance, love and passion.  I grew very angry with lawyers, victims advocates and others who were using these victims or were in it for the profit.  I grew impatient with the close minded.  I walked as close as I could in the shoes of someone who had lost a child to gun violence.  I wound up wanting to find solutions more and more.  I felt (and feel) I can stop a few bullets. Trayvon can stop more.  Jordan can stop more.  The butterfly effect of all of our efforts can stop even more.  Or maybe heal some hearts.  Or something.  We have to, because the next bullet could be flying towards any of us.  And instead of Michael Dunn’s death sentence of “you aren’t going to talk to me like that,” George Zimmerman’s was basically, “you aren’t going to walk in my neighborhood like that.”  What sentence will do you in.

My dad always said, “don’t start no shit, and there won’t be none (sic).”  Let’s look at that-

So, why do we need George Zimmerman to be convicted and why, as a lawyer, do I feel he should be convicted?

On February 26, 2012, Zimmerman did one right thing- he called police. That was the LAST thing he did correct, reasonably and with any intelligence.  If he stopped there, Trayvon Martin would be alive and George Zimmerman would be free of the justice system.  But he compounded neglect of omission and commission thereafter- manslaughter. Read more »

8
Jul

George Zimmerman – 6 Important Missing Questions During Voice Analysis Testimony

George Zimmerman – 6 Important Missing Questions During Voice Analysis Testimony

I am a trial lawyer.  I tell clients, forget what you think about trial lawyers (please).  It boils down -if done correctly- to the trial lawyer being the producer and director of an elaborate play about a crucial chapter in their life.  It is written by the client’s own life- their doctors, witnesses, experts and a host of others, but performed live without scripts (generally). And the trial lawyer is the quarterback, the conductor and the storyteller.

As such, like a quarterback sitting at home judging another quarterback’s play in the field, it is a bit unfair to critique another lawyer’s strategy while the “game” is ongoing. And, I must note that it is not a game and there is no score kept- just the end.  But there have been so many questions in my mind where I ask- did the State Attorneys’ Office for the 4th Judicial Circuit and State of Florida produce and direct this story of the death of Trayvon Martin with proper thought and execution?

To me, the whole case boils down -in large fashion- to the identity of the voices screaming and yelling that night.  Emphasizing that point, George Zimmerman started his case-in-chief on defense with that issue, countering Trayvon’s family’s identity and ownership of that crucial voice heard here- zimmerman.

And even though Zimmerman was TOLD it was his own voice by the officer (who was trying to impeach him on the point Zimmerman claimed he was being smothered at the same time he was yelling), Zimmerman said, it didn’t even sound like him.  So how are we to believe his uncle and mother, who testified without such hesitation?  How could that not be brought before the jury?

Jurors are allowed to tie loose strands together and are encouraged to bring past experience and common sense into the courtroom, but with about six missing questions, the State of Florida dropped the ball on a key issue.  And, realize, these questions could have been asked with leading statements, making the points therein far more important and direct that what I ask here.

And like the quarterback in his recliner, here I go-

6.

Question: “When was the last time you heard your son (or nephew) scream over the phone?”

While it was a question that should have been asked to all parties here on cross examination, it never was.  It is the key issue.  It is the reason why experts could not identify the voice- not enough of a sample or reliability with all of the factors involved, particularly phone quality from 100-plus feet away.zimmermanfiancee4

And no one precisely asked if the witness had heard Trayvon or Zimmerman yelling in the phone ever before this incident? Likely, the answer would have been, “never.” But, it also could have opened an interesting door.  What if Zimmerman or Trayvon had a habit of flying off the handle, what if Zimmerman or Trayvon a habit of wailing, what if there was something in the past (like the purported incident where Zimmerman turned off his mother’s electricity or was verbally abusive, see statement to the right) where this made the witness truly think or debate discussion of like incidents.

Or heard his scream or talk while being muffled?

And once the State knew it was in the clear on these questions, as the Defense really didn’t flush it out, why not let it rip?

5.

Question: “When was the last time you lived with your son (or nephew)?”

The answer is one sided.  The voice expert testified precisely to the unique familiarity of immediate family members to recognize the voice of those really close to them. George Zimmerman had moved on, gotten married, become educated and, arguably, was a very different and better educated man when he left home 5, 6 or 8 years before.  This points could have been spelled out quickly.

His voice or his way of speaking, maybe even his language used around the house to his mother, may have been different.  MORE IMPORTANTLY, the proper leading question would point our that- while Trayvon continued to be a ward of his parents, living at home the entire time, their familiarity lapsed.  Simply having the witness point out he or she had never heard him yell “help” or scream only emphasizes the possibility it was him and is almost flattering, as it shows (indirectly) he was not “crying wolf,” a characterization the State contends.  It’s lazy.

4.

Question: “Does the last sample or two sound like “help”?”

First, George denied the screams sounded like him at first- huge point.  Then, on his TV tour, he was emphatic it was him- an even larger point.  He formulated his story.  The key component of the voice at the very end doesn’t sound like “help” at all.  It is more of a wailing.  It seems more like primal screams FOR help, but does not sound like the word “help.” Yet, Zimmerman has said repeatedly, he screamed “help.”  In the re-creation, he used the word “help.” Listen here-  VoiceExemplars_03222012_643pm. Read more »