Guns

Uncomfortable Truth: The State Of Evidence in the George Zimmerman Prosecution

I have said this from the get go: In the case of State of Florida v. George Zimmerman, under the actual facts of the case from the State of Florida’s own disclosure, as opposed to hype from Benjamin Crump and his public relations team, who have self interest from representation of family members in a civil damages case, not to mention well meaning, even if uninformed, mass and liberal media, there has never been a good factual rebuttal to George Zimmerman’s own account of self defense. You know why? Because there is not any compelling rebuttal within the facts as adduced in the investigation and entered in the record at trial. And the presumption of innocence and burden of proof in the American criminal justice system still mean something.

Yes, I know what I am saying runs counter to the popular meme and what people emotionally feel and want to hear. But everything I have noted from the start of this case has been borne out in the trial evidence and resulting posture as the case heads to closing arguments and to the jury for deliberation.

Did you know that powerful local mayoral office politicians involved themselves, by meeting with only the victim’s family and their attorneys, in an improper ex-parte manner, to go over the most critical evidence during the early stages of the investigation and before said Martin family members’ statements were relied on to file charges? I bet you did not, but that has been the testimony in the trial record.

Did any of you see the young female neighborhood homeowner, Olivia Bertalan, that testified Wednesday as to the crime spree that was ongoing in her and Zimmerman’s neighborhood, Retreat at Twin Lakes, including the home invasion where she and her child were victims of one or more home invaders, and who was effusive in her praise for the concern of the neighborhood watch program and George Zimmerman? Did you know that, thanks in part to the actions of Zimmerman and his wife, the juvenile suspect was caught and sentenced as an adult by this same judge, Debra Nelson, to five years in prison? Probably not is my guess. But that, too, is the evidence.

Did any of you see the other neighbors, of all races, in Retreat at Twin Lakes who testified on Zimmerman’s behalf about the the facts of the case, that Trayvon Martin was the aggressor on top of Zimmerman when the shooting occurred, and the crime afflicting the neighborhood and the need for the neighborhood watch program? My guess is you did not. But that, too, is part of the evidence in the trial record.

Did any of you see the parade of witnesses that laid the foundation for the fact Trayvon Martin was the aggressor in the actual critical physical encounter between him and Zimmerman, and was on top of Zimmerman, and beating Zimmerman, both moments before, and at the time of, the key gun shot? And supported by both the case detectives and one of the foremost expert pathologists, Dr. Vincent di Maio, in the world? My guess is you did not. But that, too, is in the trial record as hard evidence.

Yes, all of those facts are exactly what was testified to in open court. Most of the witnesses were literally the state’s own witnesses, including the two main case detectives, Detective Chris Serino and Detective Doris Singleton. Did you know that the state’s own veteran case detectives, Serino and Singleton, testified they believed George Zimmerman and thought his version of the facts consistent and credible? My guess is you don’t know that. Yet all of that is exactly what the sworn testimony has been in open court.

LadyJusticeScalesDid you know that the state, by and through Angela Corey, relentlessly engaged in Brady violations with regard to discovery and evidence disclosure and that, as a result, discovery and depositions thereon have been ongoing even during the trial, all to the detriment to, and prejudice of, Defendant Zimmerman? My guess is you did not, but that too is part of the record.

In spite of all of the above, the political, and cravenly so, prosecution may still tug on enough emotional and falsely racial heartstrings to wrongfully convict Zimmerman. Almost surely there will be no conviction of the always wrongfully charged 2nd degree murder charge; but the possibly of a flawed compromise verdict to a lesser included charge of manslaughter, battery, or other lesser included offense, is very real. If so, it will, despite all the emotions of this case, be a tragedy of justice.

No matter what you think of George Zimmerman personally, the rule of law should militate in favor of an acquittal. Yes, if the burden of proof in the American criminal justice system is truly “beyond a reasonable doubt”, and if there really exists a common law right to “self defense”, then acquittal is exactly what the verdict should be, and must be.

I have no affinity for George Zimmerman. Frankly he strikes me as a hapless dope. Under no circumstances do I support George Zimmerman, or anybody else, wandering around with concealed carry, locked and loaded, firearms on neighborhood patrol (even though he was not on patrol, but only on his way to Target for family shopping). It is a tragic event waiting to happen and nowhere close to what the founders had in mind with regard to the Second Amendment. But my, and your, beliefs are not the law of the land either in Florida or anywhere else in the United States under District of Columbia v. Heller. And that is the law of the land, both for the Zimmerman case at bar, and and all others elsewhere.

We shall see how willing to follow the law the jury will be, and what their verdict is. But this case is not now, and NEVER has been, about what has been pitched and portrayed in the media. Never. It is not about racial prejudice and profiling (and the DOJ Civil Rights Division so found), and it is not about murder. It is about a tragic and unnecessary death, but one that is not a felony crime, despite all the sturm and drang.

State of Florida v. Zimmerman is a straight up traditional self defense case. It has never been pled as a Stand Your Ground defense case, irrespective of all the press coverage, attention and attribution to Stand Your Ground. It’s never been Stand Your Ground, and certainly is not now that the evidence is all in on the trial record. It is a straight self defense justification defense, one that would be pretty much the same under the law of any state in the union including that which you are in, and that I am in, now (so don’t blame “Florida law”).

There is nothing whatsoever unique in the self defense posture that has been effected in this case. Nothing. And it is, whether it is comfortable or not, a compelling self defense case. Actually, let us be honest: It is not comfortable. Not even close. But no matter how uncomfortable it is to say, Zimmerman needs to walk, because the self defense case is strong. The burden of proof in the instructions to the jury will read that not only is there a general presumption of innocence afforded Zimmerman but, moreover, the state must also prove beyond a reasonable doubt that Zimmerman did NOT act in self defense. Under the facts as adduced in the trial record that ought be, by all rights, an impossible burden for the jury to get past, whether on the pending count of 2nd degree depraved murder or any possible lesser included charge given to the jury.

The facts, the rule of law, and the constitutional burdens of proof compel an acquittal. Uncomfortable to hear; yes, it is. Necessary for an acquittal to occur; also, yes it is.

[UPDATE: Just a couple of quick notes. First off, the jury instructions: Judge Nelson accepted a lesser included for standard voluntary act manslaughter under FLRS 782.02(1). Nelson, thankfully, denied the wild request by the state to give a third degree murder instruction based on child abuse. It was a ridiculous attempt by the state and would have provided fertile ground for an allegation of reversible error had there been a conviction. So, the jury will deliberate only on the 2nd degree murder and the lesser included manslaughter charges, which is how it should be.

Prosecutor gave a long closing argument this afternoon. Parts of it were pretty good, parts fairly diffuse and rambling. Overall competent though, and he will still have a rebuttal after the defense closing tomorrow by Mark O’Mara.

John Galt Is Everywhere and His Killing Spree Continues

On Thursday, I wrote about the central role that absolute free market libertarianism, as personified by the fictional John Galt, played in the horrific explosion in West, Texas that took the lives of fourteen people, most of whom were volunteer firefighters fighting a fire at an unregulated fertilizer facility. We have now learned that the facility had a checkered history of ignoring regulations and had 1350 times more ammonium nitrate on hand than the amount that triggers a legal requirement to report the facility to Department of Homeland Security. Of course, the facility’s owner chose to ignore that regulation along with the many other regulations he chose to ignore. Sadly, some press accounts of the owner chose to focus more on his role as a church elder (Update: he was even at Bible study when the fire broke out!) than on how his choice to flout regulations and good sense led directly to this tragedy. Whatever the cause of the original fire that eventually triggered the explosion, the plant owner’s decision to maintain such a large and unreported amount of highly explosive ammonium nitrate so close to so many people played a huge role in how this tragedy played out.

Those deaths, and their roots in blatant disregard for government regulation in the belief that it harms business, are sadly just a small part of the larger picture of how free marketeers have corrupted the public marketplace of ideas to sow widespread death and destruction so that the “job creators” can go about their usual business of pocketing massive profits while refusing to make microscopic investments in small steps that would save many lives.

Remember the other, larger Massachusetts tragedy that killed at least 50 and injured 722? No?  It was discovered last fall that New England Compounding Center in Framingham, Massachusetts had been flaunting the rules on drug manufacturing and in their haste to reap maximum profits shipped out vials of steroids contaminated with fungus. Thousands of patients around the country were injected with contaminated material and deaths and injuries followed.

You would think that since this tragedy played out last fall, the government would have realized the error of letting companies call themselves compounders when they are in reality manufacturing drugs on a large scale. Drug manufacturers are subject rigid FDA standards while compounders are regulated as if they are simple neighborhood pharmacies where the druggist might mix single vials of drugs into a form a local doctor has requested for individualized treatment of a patient. But no, because of massive lobbying on the part of compounders, who have become a huge presence because of the vast sums of money they can earn by working the margins of regulation, lawmakers pocket the proceeds of the lobbying and proclaim themselves powerless to harm the job creators as they bring these products to market. It should be viewed as no surprise then, that a different compounder, this time in Florida, now is recalling all of its products because it has been found to have been shipping product that was contaminated with bacteria. It is not yet known if any patients have been harmed by products from this compounder, but at least today’s article on the recall was able to update the death toll from the Massachusetts compounder to 53.

The Boston Marathon bombing and the subsequent search for the perpetrators also was touched by John Galt. Technology has existed for nearly 20 years that can make individual production lots of explosives traceable. But when it came time to implement the technology, the NRA and other gun enthusiasts managed to limit the inclusion of taggants to plastic explosives and to specifically exempt black powder (otherwise known as gunpowder) from being required to be traceable. The Boston bombs used black powder. If investigators had been able to know within hours of the blast where and when the black powder was purchased, would they have been able to arrest the bombers sooner and without the subsequent death of one police officer and near death of another? The full shutdown of Boston on Friday would not have happened if the brothers had been arrested Wednesday or Thursday through tracing the black powder they purchased. But no, John Galt said that gunpowder manufacturers shouldn’t have to spend the extra pennies to tag production lots and the inclusion of taggants in gunpowder infringes the rights of gun owners in a de facto registration of their ammunition, so society has to suffer the consequences of this freedom.

Oh and all that gun freedom. It appears that we have five more gun freedom victims in Seattle today.

John Galt is a very busy guy, sowing death and destruction from one side of the country to the other. But since he continues to make good money, we have to give him his freedom and keep those markets wide open. Praise the lord of the free market and pass the untagged ammunition.

How Can We Say John Brennan “Kept Us Safe”?

I was struck when I read this line in Dexter Filkin’s article on John Brennan and drones:

None of the above is intended as an attack on Brennan, who has spent the past four years as President Obama’s counterterrorism advisor. He has a hard job. He is almost always forced to act on the basis of incomplete information. His job is to keep Americans safe, and he’s done that.

How are we supposed to measure Brennan’s success in the White House?

His title, after all, is not just “Counterterrorism Advisor.” It is “Deputy National Security Advisor for Homeland Security and Counterterrorism.” Homeland Security and Counterterrorism.

As Counterterrorism Advisory Brennan deserves credit, I guess, as terrorism has declined from 2009 levels (2009 was a spike year). Though it’s unclear how much of that is organic, and how much a result of Brennan’s efforts. In any case, I’m certainly willing to give him credit on that front.

But say his Homeland Security mandate includes cyberdefense? If that’s true — and it was for Richard Clarke when he was in that job — then Brennan has most assuredly not kept us safe. We’re getting hacked more than ever and we have yet to implement a comprehensive program that will keep critical infrastructure owned by corporations adequately defended.

Domestic terrorism is sort of included in Homeland Security. Indeed, Brennan has been involved in responses to mass shootings of both the domestic terrorist and non-terrorist varieties. If that’s part of Brennan’s mandate, than isn’t the spiraling rate of mass gun shootings proof he has failed? How can Filkins say Brennan “kept us safe” after Newtown?

And then there are things that should be included under any Homeland Security mandate but aren’t. Chief among them would be, at the very least, increasing resilience to extreme weather events, but preferably even efforts to minimize the risk of climate change. Hurricane response is included, and there are still people in NYC who lack heat from Hurricane Sandy. Drought badly damaged the navigability of the Mississippi this year; does our failure to resolve that problem count?

Infrastructure safety is another; some of the very same corporations that refuse to implement cybersecurity defenses have had major catastrophes caused simply by neglect (which suggests the push to get them to shore up only their cybersecurity defenses is a mistaken approach). How do we measure that?

Honestly, I’m as critical of Brennan as anyone, and I’m not sure it’s fair to hold him accountable for all the Homeland Security lapses on his watch. After all (as this Congressional Research Service paper makes clear), we don’t have a solid definition of what’s included in Homeland Security. So until we define it clearly, no one can be held accountable to that fuzzy definition.

That said, we ought to, at least, be cognizant of the definitions those executing the mission use. This is actually even relevant assuming (as is almost certain) that Brennan is confirmed; there has been debate, after all, whether or not CIA should be collecting intelligence on climate change. John Brennan prioritized his own work at the White House, and he appears not to have prioritized keeping first graders and Sikhs in their temple safe from crazy gunmen.

The point is, we as a country need to get better about defining what security for the “homeland” means, particularly because it is intended to include non-military defense. We need to shift our resources and emphasis accordingly based on what the greatest threats are. The fact that we don’t even know how Brennan defined that part of his job — and whether he was successful or not — tells us we’ve lost the big picture on our security.

John Galt Kills Americans

The National Research Council and Institute of Medicine yesterday released the results of a study addressing mortality in the United States as compared to other developed nations. The full report can be purchased here, where a summary also can be downloaded as a free pdf file. The press release on the study frames the questions addressed:

On average, Americans die sooner and experience higher rates of disease and injury than people in other high-income countries, says a new report from the National Research Council and Institute of Medicine.  The report finds that this health disadvantage exists at all ages from birth to age 75 and that even advantaged Americans — those who have health insurance, college educations, higher incomes, and healthy behaviors — appear to be sicker than their peers in other rich nations.

“We were struck by the gravity of these findings,” said Steven H. Woolf, professor of family medicine at Virginia Commonwealth University in Richmond and chair of the panel that wrote the report.  “Americans are dying and suffering at rates that we know are unnecessary because people in other high-income countries are living longer lives and enjoying better health.  What concerns our panel is why, for decades, we have been slipping behind.”

From the summary, we have this long explanation of the causes of high US mortality, where I have added emphasis:

The panel’s inquiry found multiple likely explanations for the U.S. health disadvantage:

• Health systems. Unlike its peer countries, the United States has a relatively large uninsured population and more limited access to primary care. Americans are more likely to find their health care inaccessible or unaffordable and to report lapses in the quality and safety of care outside of hospitals.

• Health behaviors. Although Americans are currently less likely to smoke and may drink alcohol less heavily than people in peer countries, they consume the most calories per person, have higher rates of drug abuse, are less likely to use seat belts, are involved in more traffic accidents that involve alcohol, and are more likely to use firearms in acts of violence.

• Social and economic conditions. Although the income of Americans is higher on average than in other countries, the United States also has higher levels of poverty (especially child poverty) and income inequality and lower rates of social mobility. Other countries are outpacing the United States in the education of young people, which also affects health. And Americans benefit less from safety net programs that can buffer the negative health effects of poverty and other social disadvantages.

• Physical environments. U.S. communities and the built environment are more likely than those in peer countries to be designed around automobiles, and this may discourage physical activity and contribute to obesity.

No single factor can fully explain the U.S. health disadvantage. Deficiencies in the health care system may worsen illnesses and increase deaths from certain diseases, but they cannot explain the nation’s higher rates of traffic accidents or violence. Similarly, although individual behaviors are clearly important, they do not explain why Americans who do not smoke or are not overweight also appear to have higher rates of disease than similar groups in peer countries.

More likely, the U.S. health disadvantage has multiple causes and involves some combination of inadequate health care, unhealthy behaviors, adverse economic and social conditions, and environmental factors, as well as public policies and social values that shape those conditions.

What stands out to me is that the list of reasons Americans die early overlaps significantly with the social goals of right-wing libertarians who worship Ayn Rand and John Galt. Continue reading

Whitlock, Costas Bravely Point to Role of Guns in Perkins, Belcher Tragedy

[youtube]http://www.youtube.com/watch?v=B1ijkccD9_8[/youtube]

In a disgusting demonstration that for the NFL, money dictates that “The Show Must Go On”, the NFL never considered those who, like Dave Zirin, found it astounding that the NFL would encourage the Kansas City Chiefs to go ahead with their game barely 24 hours after Chiefs Coach Romeo Crennel and other Chiefs personnel witnessed Jovan Belcher kill himself with a handgun shortly after he had murdered his girlfriend, the mother of their three month old son daughter. Zirin tweeted throughout the day on the coverage provided by the various networks as they continued broadcasting games, mostly as if the event had never happened.

But then, just at the close of halftime in the nationally televised Sunday night game on NBC, Bob Costas took the microphone for the minute and a half you see in the YouTube above. Costas started by slamming the cliche that the playing of the game somehow began the “healing” process for those affected by the tragedy, giving voice to the sentiment Zirin had stated earlier. But then Costas moved on to confront an even bigger taboo in the national debate, as he quoted this powerful column by Jason Whitlock, who dared to point out the way that our national sickness relating to guns contributed to this tragedy. From Whitlock:

I would argue that your rationalizations speak to how numb we are in this society to gun violence and murder. We’ve come to accept our insanity. We’d prefer to avoid seriously reflecting upon the absurdity of the prevailing notion that the second amendment somehow enhances our liberty rather than threatens it.

How many young people have to die senselessly? How many lives have to be ruined before we realize the right to bear arms doesn’t protect us from a government equipped with stealth bombers, predator drones, tanks and nuclear weapons?

Our current gun culture simply ensures that more and more domestic disputes will end in the ultimate tragedy, and that more convenience-store confrontations over loud music coming from a car will leave more teenage boys bloodied and dead.

In the coming days, Belcher’s actions will be analyzed through the lens of concussions and head injuries. Who knows? Maybe brain damage triggered his violent overreaction to a fight with his girlfriend. What I believe is, if he didn’t possess/own a gun, he and Kasandra Perkins would both be alive today.

Whitlock deftly destroys so many of the false narratives that our society has forced upon it regarding guns. As he states, this tragedy demonstrates that the second amendment actually threatens our liberty rather than protecting it. He goes on to state that although the second amendment is regarded by many as the last refuge by citizens against a government turned tyrannical, mere guns won’t protect against a determined government armed with “stealth bombers, predator drones, tanks and nuclear weapons”. Whitlock cleanly demonstrates that the pervasive nature of guns in our sickened society is what enables so many senseless deaths, pointing out that both Perkins and Belcher likely would still be alive if a gun had not been available during Belcher’s moment of extreme rage. Whitlock also alluded to the tragic murder of Jordan Davis in Jacksonville, Florida recently in a case that appears to possibly be headed once again into an inovcation of Florida’s “Stand Your Ground” law that many see as a license for murder.

Whitlock went directly in the face of the cliche, often pointed out by David Waldman on Twitter, that the immediate aftermath of a tragedy of this magnitude is “too soon” to enter into a discussion on the perils of society’s glorification of guns. Others would say that public discussion of guns on a rational basis is no longer possible because of the overwhelming power of the NRA.

The fact is, it is never “too soon” to discuss the role of guns in tragedies because the tragedies come at us so quickly that we would otherwise always be in the quiet period after one gun tragedy or another. But even more importantly, the myth of the power of the NRA has been completely destroyed. In the 2012 elections, Media Matters informs us that the NRA spent just under $12 million but only 0.42 percent of those funds supported winning candidates and only 0.39 percent opposed losing candidates.

Just as the latest round of elections and the current Kabuki over the “fiscal cliff” is poking a hole in Grover Norquist’s power over preventing tax increases, our society may actually be moving toward a more rational discussion on the sickness inherent in our gun culture. I don’t harbor any illusions that progress will be fast or that substantive improvements are even still possible, but if changes do finally take place, we may be able to point to the courage shown by Bob Costas last night as the turning point when we finally started a long overdue discussion.

Emptywheel Twitterverse
bmaz My question at the outset was why GM concealment was not bankruptcy fraud; now that will be litigated. Good. http://t.co/CCL3wm2HYE
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bmaz @trevortimm Be terrified. Very terrified. Cause what you saw is, I think, all you get.
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bmaz @johnson_carrie According to my wife, "impossible jerk" characterizes lawyers in many locales @npratc
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT The constitutional framing is amazingly resilient, but resets are slow.
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT I represent far too many of the former and lament the latter. Things change though
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT Frankly, US can exert such influence, will not be effective foreign prosec either
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT Yes, in these considerations, that is exactly right. Not happening.
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT I wasn't being a smart ass, just honest as to situation.
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bmaz @mucha_carlos @ColMorrisDavis @KenDilanianLAT @HoltenMark Safe enough bet; no administration will want to open that can of worms.
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bmaz @mucha_carlos @ColMorrisDavis @KenDilanianLAT @HoltenMark ...ought to give pause in above regards too. If DOJ ever cared about these crimes.
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bmaz @mucha_carlos @ColMorrisDavis @KenDilanianLAT @HoltenMark Well, yes, and the wild expansion of extraterritorial jurisdiction in other cases
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bmaz @ColMorrisDavis @KenDilanianLAT @HoltenMark Granted, what Im saying applies to execution of US nationals as opposed to foreign nationals.
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