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Theodore Wafer Did Not Fear Death Or Injury When He Killed Renisha McBride

10:47 am in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog

A judge's gavel

An upcoming trial will determine whether the shooting of Renisha McBride was self-defense or murder.

Theodore Wafer did not fear imminent death or serious injury on November 2, 2013 when he opened his locked front door and shot 19-year-old Renisha McBride in the face through a locked screen door with a 12 gauge shotgun, killing her.

She was alone and unarmed.

She had collided with a parked car about a half mile from his house approximately 3 hours earlier and left the scene of the accident before police arrived. No one knows where she was or what she was doing until she started knocking on Wafer’s door around 4:30 am.

Witnesses who saw her at the scene of the accident, described her as dazed and bleeding from an apparent head injury.

The Detroit Free Press reports:

McBride’s blood alcohol level was 0.218%, and marijuana was detected in her system, according to the toxicology report released today by the Wayne County Medical Examiner’s Office.

Wafer is charged with second degree murder. He claims self-defense. The trial, which is expected to last three weeks, is scheduled to start July 21st.

Wafer is white and McBride is black.

Police officers who investigated the crime scene at Theodore Wafer’s residence neglected to seize the screen door, which is one of the most important items of evidence in the case. Fortunately, they photographed it before leaving the scene and returned later to recover it.

The Voice of Detroit explains how that happened:

Wayne County Prosecutor Kym Worthy had to order the Dearborn Heights police, who first released Wafer without charges, to do a more thorough investigation of the case. They did a second crime scene review Nov. 11, during which they discovered a key piece of evidence, the perforated front door screen, in Wafer’s basement.

The exact condition of the screen door is important because the racist right-wing-hate-machine has been spreading a false story over the internet that McBride was ripping the screen door off its hinges when Wafer opened the inner door and shot her in the face, killing her, to prevent her from breaking into his house.

Here’s the police officer’s report describing the condition of the screen door when he arrived at Wafer’s residence in response to Wafer’s 911 call:

Northern most West side door was locked and no obvious sign of tampering to that door (partially collapsed wooden steps leading up to door).

The front entry door was open (no signs of prying, kicking or tampering) and the front screen door was closed/locked. The front screen was popped out with a tear in the screen (Cpl. Zawacki had photographed that upon arrival).

On the carpet near front door lay a Mossberg Model 500A 12 ga. pistol grip pump shotgun, black in color. I unlocked screen door while ME took photograph of shotgun through screen door. ID for Renisha Marie McBride on her person. TOT DHPD at scene. I popped screen back in place (held in loosely by one screwed in tab at the top and rested in the channel at the bottom of storm door) so Cpl Zawacki could photograph it in place with a tape measure, as shotgun blast could have blown screen out of place.

[Emphasis supplied]

Here’s the photograph of the screen door displaying the rip caused by the shotgun blast.

As everyone can plainly see from the officer’s report and the photograph, the door frame was intact, closed and locked when the officers arrived.

Furthermore, here’s a photograph of the inner door and front porch. A peephole is visible in the expected position and a white globe-style porch light is visible above and to the right of the door.

I believe we can reasonably assume that Wafer would have turned on the light, unless it was on, and looked through the peep hole before he opened the door.

Why did he open the door, if he feared imminent death or serious bodily injury?

Why did he claim the gun went off by accident, if he feared imminent death or serious bodily injury?

Read the rest of this entry →

Theodore Wafer ordered to stand trial for killing Renisha McBride

9:34 am in Uncategorized by Masoninblue

Cross Posted From Frederick Leatherman Law Blog*

Saturday, December 21, 2013

Good morning:

MSNBC is reporting today that a Michigan judge ordered Theodore Wafer, 54, to stand trial for murder in the second degree and manslaughter for shooting Renisha McBride, 19, to death in the face with a shotgun on November 2nd.

He is white and she was black.

Judge David Turfe said Thursday that based on the evidence presented, Wafer made a poor decision in shooting McBride, and he failed to pursue other “reasonable opportunities to defend himself,” including calling the police for help.

“He chose to shoot rather than not answer the door,” the judge said.

McBride had been drinking heavily earlier in the evening and crashed her vehicle into a parked car approximately a half-mile from Wafer’s house three hours before she knocked on Wafer’s door.

The New York Daily News is reporting:

A witness said McBride was bleeding and holding her head, but that she walked away from the scene before an ambulance arrived. It’s still unclear, at least publicly, what she did between the time of the car wreck and her arrival on Wafer’s porch.

An autopsy found McBride had a blood-alcohol level of about 0.22, more than twice the legal limit for driving. She also had been smoking marijuana.
Her best friend, Amber Jenkins, 18, said they were drinking vodka and playing cards seven to eight hours before the shooting was reported to 911.

Wafer opened the inner door and shot her through the screen door in the face from a distance of about two feet.

Assistant Wayne County Medical Examiner Kilak Kesha testified that her injuries were so severe that he “couldn’t even reconstruct the brain.”

The result of this preliminary hearing is not surprising because she was unarmed and Wafer had admitted to police that he shot her after he opened the door in response to her knocking on it.

The purpose of the hearing was for the judge to determine whether probable cause existed to believe Wafer committed the crimes charged. There was zero chance that the judge would have dismissed the charges on that set of facts.

Defense counsel did what defense counsel all over the country do at a preliminary hearing. They used it to obtain discovery about the prosecution’s case and cross examine their witnesses under oath locking them into their stories.

Defendant did not testify and defense counsel did not put on any witnesses at the preliminary hearing. This is standard operating procedure, so no surprises there. Nothing good can come from locking your client into his story and opening him up to cross examination by a great white shark in a dress before you know if the prosecution has the ace of trumps.

That would be malpractice.

Wafer and his defense team appear to have a choice-of-defense dilemma. He initially told police that he accidentally fired his shotgun. However, his lawyers argued that the judge should dismiss the charges because the evidence introduced at the hearing was consistent with self-defense.

I did not get that impression and neither did the judge. Unless a person is predisposed to believe that an unarmed black female teenager knocking on their door at 4:30 am is a threat and should be shot in the face, and I am talking about white racists, I do not believe the evidence supports a claim of self-defense.

The prosecutor didn’t mess around; She went for the jugular.

Wayne County assistant prosecutor Danielle Hagaman-Clark said it’s “ridiculous” to believe that Wafer was deeply afraid but still decided to open the door and fire instead of first calling the police.

“He shoved that shotgun in her face and pulled the trigger,” Hagaman-Clark said.

Read the rest of this entry →

Zimmerman: How to Select a Jury Despite the Child Molestation Allegation

5:23 pm in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog

Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.

George Zimmerman in Court

George Zimmerman

To keep it simple, we are going to focus on W9′s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.

This is what she said:

The sexual abuse consisted of digital penetration of her vagina and fondling.

She ended it when she was 16 and later told her parents. Her parents told his parents.

She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.

Our client denies that he ever sexually molested her or anyone else.

We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.

We know that many, possibly all of the people in the jury pool, have heard or read her story.

What do we do?

Read the rest of this entry →

Practicum: Do You Have a Reasonable Doubt that George Zimmerman Killed in Self-Defense? UPDATED BELOW

9:03 am in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog.

Good morning, everyone. Yesterday was my birthday, so I took a little time off from blogging and did not post a new article or do a very good job of responding to many of your excellent comments. Y’all have a great discussion going on.

Commenter JD has asked what effect will all of GZ’s inconsistent statements and lies have on a jury, assuming this case goes to trial?

Put another way, just because he’s a liar, does that also mean he’s a murderer?

In this article, I propose that the answer to the question is, it depends on what he lied about and why he lied he about it.

Okay, for the sake of argument, let us suppose that y’all are members of the jury that will decide this case.

Let’s keep it simple today and just focus on GZ’s self-defense claim.

First, let’s start with some standard jury instructions.

The defendant has admitted to killing TM so that is an established fact.

The defendant claims he killed TM in self-defense and you are to presume that he did unless you are convinced beyond a reasonable doubt that he did not kill in self-defense.

The defendant has no burden to prove he acted in self-defense. Since you must presume that he acted in self-defense, he has no burden to produce any evidence.

A reasonable doubt is a doubt for which a reason exists and it may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully and carefully considering all of the evidence or lack of evidence.

Evidence may be direct or circumstantial. Direct evidence is evidence that is perceived through the senses. Circumstantial evidence is evidence of a chain of circumstances that, according to knowledge and common experience, lead to a conclusion. One is not necessarily better or more reliable than the other. As members of the jury, it is for you to decide how much weight to give to any evidence admitted in this case.

A person may use deadly force in self-defense, if he reasonably believes that

a. he is imminent danger of being killed or suffering grievous bodily injury and

b. the amount of force he uses to defend himself is reasonably necessary to prevent being killed or suffering grievous bodily injury.

An aggressor cannot claim self-defense.

Okay, now some evidence with which to work.

The prosecution will be able to introduce during it’s case in chief some, none or all of the statements GZ made. This means that before he ever takes the stand, assuming he chooses to testify on his own behalf, the prosecution will have introduced all of his statements to the police, including his conversation with the dispatcher.

Recall that the dispatcher told him not to follow TM and, as a student in his last semester of Criminology, he was taught that an aggressor cannot claim self-defense.

The prosecution also will have introduced evidence that he had been advised that a neighborhood watch person is limited to watching the neighborhood and calling the police to report crimes and suspicious activity. He was specifically instructed not to contact or attempt to detain a suspect because that is a job for the police to handle.

Assume the autopsy report has been admitted and the Assistant ME who performed it testified that the muzzle of the gun was 2 to 4 inches away from TM when GZ fired the fatal shot. The bullet entered TM’s chest 1″ to the left of the midline and 1/4 inch below the nipple and penetrated the chest cavity proceeding straight through from front to back destroying the right ventricle of the heart, the lower lobe of the right lung, and collapsed both lungs.

Assume the rest of the evidence that has been released and y’all have discussed has been admitted.

The prosecution will argue that, given the nature of what he knew at the time and the lies he told, there is no question that he lied to conceal that he followed TM with intent to find him after he lost sight of him and detain him, using force if necessary, until the police arrived.

“These assholes, they always get away,” likely will repeated over and over at every opportunity by the prosecution, particularly in closing argument.

The defense will argue that there is a reasonable doubt in this case, given the nature of GZ’s injuries that show TM was the aggressor, not GZ.

Now assume you are a juror. Are you going to have a reasonable doubt (i.e., a doubt for which a reason exists) that he killed in self-defense?

Come on in, the water is fine.

By the way, please suggest any topics on this case that you would like me to write about.

UPDATE:

The prosecution released this afternoon a 29-page investigation report by Investigator Chris Serino in which he said the shooting was avoidable and George Zimmerman passed up two opportunities to defuse the situation by speaking to Trayvon Martin. An additional short video also was released.

Investigator Serino wrote that Trayvon Martin did not use deadly force and:

Investigative findings show the physical injuries displayed by George Michael Zimmerman were marginally consistent with a life-threatening episode as described by him,”

The Orlando Sentinel has the cover story and the video.

Go to MSNBC to access the 29-page report, which is here.

Why Is Trayvon Martin Dead?

10:54 am in Uncategorized by Masoninblue

(photo: werthmedia/flickr)

Cross posted from Frederick Leatherman Law Blog.

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

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

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

Keep in mind that it is after dark and raining.

What Was Zimmerman’s Intent?

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

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

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

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

Zimmerman: He looks black.

Dispatcher: Did you see what he was wearing?

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

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

Dispatcher: OK…

Zimmerman: Now he’s just staring at me.

He also was concerned about Martin approaching him and possibly being armed. Read the rest of this entry →

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

10:59 am in Uncategorized by Masoninblue

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Was George Zimmerman a reasonable person that night?

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

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

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

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

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

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

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

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

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

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

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

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

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

What is reasonable about that?

Cross posted from my law blog

Stand Your Ground Explained

11:42 am in Uncategorized by Masoninblue

Scale of Justice (Wikipedia)

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

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

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

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

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

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

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

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

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

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

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

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

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

This is how it will happen in the Zimmerman case:  [cont'd] Read the rest of this entry →

Trayvon Martin: What Forensics Can Tell Us

8:57 am in Uncategorized by Masoninblue

Introduction

We already know that two independent forensic audiologists have examined a recording of a 911 call by a woman who reported a struggle going on behind her residence. A long high-pitched scream for help that is audible in the background terminates abruptly with what sounds like a single shot.

Using different analytical methods the two experts have compared the scream to a police recording of George Zimmerman’s voice when he called a police non-emergency number approximately 10 to 15 minutes before the shooting to report a suspicious person in his neighborhood.

We now know that person was Trayvon Martin, who was walking back to his father’s girlfriend’s residence, whom he was visiting with his father, after walking to a nearby 711 store to purchase some Skittles and Arizona Iced Tea.

Both experts excluded George Zimmerman as the person screaming in the background to a reasonable scientific certainty. They have not compared the scream to a recording of Trayvon Martin’s voice, presumably because they do not have a recording of his voice.

Trayvon Martin’s mother has identified her son as the person screaming.

Since there is a witness who claims to have seen the struggle between Zimmerman and Martin with Martin on top and Zimmerman lying on his back in the grass yelling for help, there is an apparent conflict in the evidence between the eyewitness’s statement and the two expert opinions. I say “apparent conflict” because the witness did not observe the fatal shot. He locked his door, went upstairs, and when he looked out the window, he saw Martin lying face down in the grass and not moving.

Because the witness did not observe who initiated the physical confrontation or the fatal shot, he cannot tell us who was the aggressor or where Martin and Zimmerman were positioned and what Martin was doing when Zimmerman fired the fatal shot. This missing information is important because, under Florida law, Zimmerman’s claim of self-defense must be rejected, if he was the aggressor, or if he was not in danger of being killed or suffering serious bodily injury when he fired the fatal shot.

For example, during the time period while the witness was in transit between locking his door, going upstairs, and looking out the window, Zimmerman, who outweighed Martin by 40 pounds, according to Wikipedia, might have locked his arms and legs around Martin, rolled over on top straddling him, and then pulled his gun out of the holster and fired the fatal shot. He might even have separated from Martin and fired the fatal shot. Neither scenario would justify using deadly force in self-defense.

Let us now consider what other forensic evidence to see what it might tell us about the relative positions of Zimmerman and Martin when Zimmerman drew his gun and fired.

What Can Forensics Add To This Investigation?

I would want to review the autopsy report and interview the medical examiner who conducted the autopsy to find out whether he noticed any injuries other than the fatal gunshot. For example, did Martin have any abrasions on his hands and fingers.

I would have a lot of questions for the medical examiner regarding the nature of the gunshot wound and Martin’s clothing.

For example, the weapon was a black Kel Tek 9 mm PF9 semiautomatic. The bullet would have been discharged when Zimmerman pulled the trigger causing the hammer to strike the primer igniting the smokeless powder in the casing producing rapidly expanding gas (consisting of carbon monoxide, nitrogen dioxide, carbon dioxide and other gases) that ejects the bullet, burning and unburned gunpowder (the burn always is incomplete), and trace amounts of the primer that contains heavy metals, including lead, antimony, and bismuth. Depending on the nature of the wound and the presence of all, some, or none of these materials, a qualified forensic firearms expert can determine how far away the gun barrel was when the shot was fired.

The gases, including the heavy metals, and some smoke from unburned but gaseous carbon, are projected only a few inches. The effects of the gas produce what are called contact or near-contact wounds that are characterized by variable skin lacerations or tears from the expanding gases that rip the skin apart and stippling, which is blackening skin from the unburned smokeless gunpowder that is propelled out the barrel of the gun with the bullet by the rapidly expanding gas.

As the distance of the gun barrel to the skin increases, the effect of the gas diminishes and only the unburned powder and bullet are capable of penetrating the skin. Stippling is present when the gun barrel is 0.5 centimeter to 1 meter from the wound. The pattern gets larger as the distance increases. So-called distant wounds do not cause tearing or stippling.

Based on Zimmerman’s statement, I would expect Martin to have had a contact or near contact wound with skin laceration or tearing caused by the explosive gases entering the wound expanding and tearing the skin. I also would expect to see some stippling or unburned smokeless powder. If I did not see evidence of either in the wound or clothing fibers, I would conclude that the gun barrel was more than a meter away, which is at odds with Zimmerman’s statement in which he claimed that he shot Martin as Martin was on top and hitting him.

Given Zimmerman’s statement, I also would expect to see high velocity blood spatter (mist-like spray of blood drops about 1 mm in diameter) or blowback on the barrel of Zimmerman’s gun, his shooting hand, and the sleeve of his jacket.

Absence of skin tearing, stippling, and high velocity blowback or blood spatter would seriously undermine a claim of self-defense.

Cross posted from my law blog.

Zimmerman Did Not Shoot Trayvon Martin In Self-Defense

2:10 pm in Uncategorized by Masoninblue

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

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

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

The Florida statute provides:

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

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

(Emphasis supplied)

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

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(Emphasis supplied)

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

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

(Emphasis supplied)

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

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

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

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

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

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

Cross posted from my law blog.