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Baby Dies After Severe Burns Inflicted By Mother

April 30th, 2012

Last week a local 2 month old child died after enduring burns inflicted at the hands of his mother.  18 year old Chekayla Ariel Dampier of Port Richey was arrested on April 17th and charged with aggravated child abuse causing great bodily harm after holding her young son under scalding hot water in an effort to halt his crying, according to police officials.  Aside from the nauseating facts of this case, there is no doubt Ms. Dampier will now face some form of a homicide charge due to the death of her child.

It is likely Ms. Dampier will face a 1st Degree Murder charge punishable by death under Florida Statute 782.04(1)(a)(2) due to the death of her child.  Allegedly, Ms. Dampier was engaged in committing aggravated child abuse upon her son which will likely be shown as the cause of the child’s death. Florida, amongst other states, allow for a first degree murder charge if an individual dies resulting from the commission of a felony by another.  An example would be a bank robbery where the gun accidentally discharges, hits the clerk, and the clerk dies.  There would arguably be no premeditation for murder, however because robbery is a felony, the State could charge a first degree murder charge due to the death occurring as a direct result of a felony being committed.  If the facts as alleged are true, I believe Bernie McCabe’s office can make a case against Ms. Dampier for first degree felony murder.

In the unlikely event the State Attorney’s Office elects to go the non-capital route and charge Ms. Dampier with Second Degree Murder per Florida Statute 782.04(2), the State will have the task of showing that Ms. Dampier unlawfully killed her child, when committing any act imminently dangerous to the child while evincing (show or demonstrate clearly) a depraved mind regardless of human life, but without any premeditated mental state.  Stated otherwise, the State would have to show that Ms. Dampier was committing an extremely dangerous act to her child and was oblivious to its effects and without concern for her act’s effects upon her child.  A conviction for Second Degree Murder is a life felony punishable by just that.

Lastly, the State could opt to charge Ms. Dampier with Aggravated Manslaughter of a Child, a first degree felony punishable by up to 30 years in prison.  In order to get a conviction under this charge, the State must show Ms. Dampier killed her minor son without lawful justification. Again, the State will very likely opt to charge Ms. Dampier with capital felony murder and will use Second Degree Murder and Aggravated Manslaughter of a Child as lesser included crimes should this case go to trial.  In using this strategy, the State enjoys the luxury of two lesser charge “safety nets.”  Should the jury not find felony murder to be the most appropriate charge, the jury may still find Ms. Dampier guilty on either Second Degree Murder or Manslaughter, but not both. This is quite common in homicide cases and likely is the theory behind Angela Corey charging George Zimmerman with Second Degree Murder rather than Manslaughter.

Should the State fail, in either case to prove a murder charge, there is a chance for them not to walk away empty handed and gain a Manslaughter conviction.   As with any capital murder case, there are a few legal strategies a criminal defense attorney can use to either attempt to earn an acquittal for the defendant or attempt to avoid a capital murder conviction, thereby avoiding a death penalty.

Any good defense attorney will analyze early on his/her client’s chances of a full acquittal.  If this is the case, facts will be disputed with the hope of a complete acquittal.  Think Casey Anthony.  In cases like this one, it appears the facts are so overwhelming against Ms. Dampier, that she needs to employ another strategy. It was noted that friends and family were of the opinion that Ms. Dampier has psychological issues.  If this is the case, as her attorney I would investigate whether she is mentally competent to stand trial.  If she is shown not to be competent, her trial would be delayed until which point she is deemed competent to stand trial.  Assuming for argument’s sake that she is competent, there is the possibility of asserting the affirmative defense of insanity at trial.  In using an insanity defense, the Defendant must show by a preponderance of evidence (just a tiny tip of the scale in Defendant’s favor) that at the time of the crime they had a mental infirmity, disease, or defect and because of that condition the person did not know what they were doing or didn’t know the consequences of what they were doing or although they knew what they were doing and its consequences, they did not know it was wrong.  The determination of whether someone is not guilty by reason of insanity is for the jury to decide.Lastly, if the facts are overwhelming and insanity is a longshot, there is the often employed strategy of going to trial and arguing that First Degree Murder is inappropriate and that the Defendant should be convicted, if at all, of a Second Degree Murder charge or Manslaughter.  This strategy is generally a last ditch effort to save a Defendant from the death penalty.

Ultimately, I believe the easiest charge for the State to prove will a First Degree Felony Murder charge.  In essence they must only show an aggravated child abuse has occurred.  They allegedly have an admission as to that charge.  Step two would be to show the aggravated child abuse was the cause of death.  Again, this shouldn’t be too difficult considering the heinous nature of the abuse and the medical testimony available.  Potentially the largest obstacle the State will have to overcome is the competency of the Defendant and an insanity defense.  Often in cases like this where the act is so offensive that the common man and woman cringe, insanity is a very plausible explanation for the act as many can’t imagine what would cause someone to act in a manner of the like.  Regardless, whatever the outcome of this may be, hopefully justice will be served.  What are your thoughts?

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First Arrest Made in BP Oil Spill

April 25th, 2012
BP.  Those letters together cause many of us in the Bay Area to shutter at the thought of their ineptitude in dealing with the oil spill in the Gulf.  Business owners suffered, beach goers were scared away, fishermen were affected, and as a whole, the Bay Area economy continues to suffer to this day.  Adding insult to injury, the Federal Government has arrested BP engineer Kurt Mix on charges of obstruction of justice for deleting more than 300 text messages.  It is alleged those text messages told that a much greater amount of oil poured into the Gulf of Mexico than was reported by BP, and that BP’s feeble attempts to control the spill were failing.  Unfortunately, this something we all knew.  It is further alleged that Mix deleted approximately 200 messages to a BP supervisor in October of 2010 and then deleted 100 more the following year, despite receiving numerous legal notices forbidding the destruction of such evidence and to preserve it.  At first blush, the allegations are sickening considering the “feel good” propaganda pumped across our televisions and radios by BP in an effort to mitigate damage not to our coast, but to their bottom line.
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If convicted, Mix could face up to 20 years in prison and a $250,000 fine.  In an attempt to set aside this Bay Area resident’s bias against all things BP, depending on when and to whom the notices to preserve this evidence were sent, Mix may have a plausible defense.  If Mix did not receive the notices sent from the US Government and therefore did not read them, he may not have been on actual notice to not delete his text messages.  For argument’s sake, if the messages went to a supervisor who did not relay the order to Mix, he could defend on not having the mental state of “knowingly” deleting text messages with the “intent” of destroying evidence.  In other words, without seeing the notice or hearing news of the same, when he deleted the messages he wasn’t knowingly covering up an investigation by intentionally destroying evidence, but rather was merely deleting text messages as people do every day.  How often do we mindlessly delete text messages in an effort to clean out our phones and then realize later that we deleted a name or number that we needed?
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As Federal cases come, the evidence against a defendant is often so heavily tipped in favor of the United States that a trial would be futile.  Depending on what admissible evidence the United States has against Mix will determine whether my defense theory would even be plausible.  As so often technical attorneys forget, our system is often based on the mind of a reasonable juror.  Nix’s largest hurdle may be finding a jury in New Orleans that isn’t so angry at BP and all their minions that they will want a head to roll, period, end of story.  That isn’t to say the good people of the Big Easy aren’t fair and just people, but even this attorney couldn’t blame them if their emotions are so strung out that they couldn’t look past the damage BP has caused.  All in all, Nix now has a problem.  BP has a bigger one.  The likelihood of a forgiving jury in New Orleans is slim.  The likelihood of convincing any jury that Nix was absent minded in deleting these texts is tiny.  Nix should have known that deleting those messages could create a very large problem for him and yet he did it anyway.  However, if in fact that is the case, were I representing Nix, we would be calling to order a meeting with the Feds, asking for immunity or a slap on the wrist diversion or probation sentence, and giving them so much information against BP that BP may consider digging a hole near the oil breach and hiding out for a while.  Nix likely carries the key to his own freedom and he will no doubt use it.  BP may be facing a tougher spill to cap than they had before.
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Jason Mayberry is an attorney located in Clearwater and practicing throughout the Tampa Bay area.  Our practice focuses on Federal and State criminal defense, personal injury and medical malpractice, and family law.  Thank you for reading our blog and if you have questions or are in need of an attorney, please don’t hesitate to call us at 727-771-3847 or visit us on the web at www.mayberryfirm.com.

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Zimmerman Charged, Bonded, Released, Now What?

April 24th, 2012
Boom, Pop, Zing!  As quickly as it started, the fireworks show that is the George Zimmerman case will now seemingly lay in the weeds until the next interesting pretrial motion is filed or this case goes to trial.  Early sunday morning, George Zimmerman was released from the Seminole County jail after having posted bail and being fitted with a GPS monitoring device.  Today, Zimmerman’s attorney filed a written plea of not guilty, thereby eliminating the need for Zimmerman to appear in court once again on May 8.  Nearly every criminal attorney retained privately, files a standard set of pleadings including a notice of appearance, written plea of not guilty, demand for discovery (evidence the State intends to use against the accused), request for a charging document, and a waiver of client appearance.  In essence, by filing a written plea of not guilty, Zimmerman through his counsel has indicated to the court that he understands the charges against him, does not wish to hear a formal reading of such charges, and wishes to enter a not guilty plea to the allegations.  So what happens now and when will we see Zimmerman in court again?
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From this point most of the work on this case will be done behind closed doors, but for news breaking that some event has happened.  What we’ll see now is Zimmerman’s legal team demand evidence the State intends to use against Zimmerman and in turn receive the same.  The evidence received is called discovery and generally consists of police reports, witness reports, any scientific evidence obtained, any video or audio recordings, a list of witnesses, amongst other things.  Were I handling this case, immediately upon receiving this information I would call any lay witnesses listed to see what they know, go to the scene of the incident (would have gone prior to receiving discovery as well) and hire a private investigative team to interview people in the neighborhood in addition to those that knew Trayvon Martin.  In addition to this, pursuant to Florida Statute 119.07, I would file a public records request to obtain any additional evidence with respect to the police investigation, any discipline of any officer involved, or any reprimand for insufficient work performance.  This is a little used and valuable tool to catch the state sleeping and to potentially catch a witness fudging a bit on their testimony or observations.  The goal is to obtain as much information as possible informally so to be as prepared as possible when depositions are set.  Once as much information is gathered as possible using informal channels, I would use any helpful information during depositions of witnesses so as to better box in the testimony of each State friendly witness.
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As this case progresses there will be intermittent court hearings called pretrial conferences, disposition dates, or whatever other term of art a jurisdiction uses.  In essence, these dates are nothing more than a Court’s way to monitor the progress of the case and will allow the presiding judge to maintain a schedule thereby ensuring both parties are making their best effort to move the case along.  Unfortunately for those taking a real interest in this case, it is unlikely George Zimmerman will appear at these hearings.  Florida Rule of Criminal Procedure 3.180(a)(3) requires the Defendant to be present for all pretrial conference, unless that defendant waives his appearance.  Florida Rule of Criminal Procedure 3.220(p)(1) requires the Defendant to be present at pretrial conferences unless such presence is waived in writing.  Further, pursuant toWalters v. State, 905 So.2d 974, 977 (Fla. 1st DCA 2005 ) unless the trial court finds good cause for requiring a Defendant to be present at a pretrial conference, “the trial court does not possess the discretion to deny a defendant the ability to waive his appearance at pre-trial proceedings.”  No doubt, because of the relative simplicity of a pretrial conference, the court in the Zimmerman case will not have an issue with Zimmerman’s presence being waived, should he want to waive.
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The long and short of the Zimmerman case is that we will likely have to wait for a while before news of substance is reported from the courtroom.  This is the nature of the criminal process whether the case is a simple ordinance violation or a high profile case the likes of State v. Zimmerman.  It’s a hurry up and wait process that will clip along uneventfully until trial where again we’ll interested in the outcome of George Zimmerman.  Who knows what’s in store out of Court with the demonstrators and supporters of both sides, but for now, we wait for the Court to do its job.

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Rocket’s trial part 2

April 20th, 2012
He unequivocally told us, the US Congress, and the media show 60 minutes he has never used performance enhancing drugs (“PEDs”).  His best friend, and fellow future hall of fame pitcher, Andy Pettite, told us he had used HGH and that Clemens had told him just that .  Former personal trainer Brian McNamee claims he has materials used to ingest PEDs by Clemens in a beer can in addition to a FedEx box.  How does all this come together?  During the Major League Baseball witch hunt to sniff out and snuff out any and all use of PEDs, Roger Clemens denied any involvement despite suspicion that he was a user.  He was named as one of 87 Major Leaguers to use performance enhancing drugs in the Mitchell Report, a 407 page report put out by baseball in 2007.  Subsequent to this report, Clemens, along with many others, testified before Congress regarding the use of PEDs, to which Clemens denied any involvement and then sued his former trainer Brian McNamee.  Ultimately, and likely due in large part to Clemens’ dumb ass decision to sue McNamee, thereby opening himself up to deposition and trial testimony, the US Attorney’s Office in Houston elected to charge Clemens in 2009 via a three count Federal Indictment .  In round 1 on Clemens’ trial the US Attorneys office mistried the case by showing the jury a video that had been ruled to be inadmissible in trial.  Fast forward 9 months and here we are again, set to watch a clash of wills between Clemens’ Federal Criminal Lawyer and the US Attorney’s Office over something so ridiculous as charging a former professional athlete with fibbing to a group of what may or may not be a group of fibbers themselves.  What an excellent use of Federal funds!
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So what happens if the Rocket man is convicted of these horrible misgivings?  Unlike most State courts, the Federal Sentencing System operates using rather complex guidelines.  Because Clemens is charged with 3 counts all generally arising from the same incident, his allegations will be “grouped” for purposes of sentencing should we get that far.  For arguments sake, Clemens likely has no significant history and thus his criminal history category would be a “0″ or “1,” which is the lowest category one can be in.  Obstruction of Justice is found in the Sentencing Guidelines under Section 2J1.2 and Perjury is found under Section 2J1.3.  Because both of those carry the highest Base Offense Level of 14, they will be considered the threshold charge and the calculation of the applicable guideline sentence will begin there.  Again, due to these allegations arising from the same incident, the charges will be grouped and so under Clemens’ criminal history category using a base offense level of 14, he is potentially facing 15-21 months in a Federal Penitentiary.  Generally one charged with a Federal Crime is eligible for certain mitigating opportunities in an effort to reduce his sentence, however these are almost never available to a defendant if he goes to trial.
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Federal charges are hands down the most serious criminal charges and individual can be saddled with.  If you or someone you know need a Tampa Federal Criminal Lawyer contact the Federal Criminal Attorneys at The Mayberry Law Firm immediately.  We’re available 24 hours a day, 7 days a week at 727-771-3847.

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Zimmerman Granted $150,000 Bond

April 20th, 2012
After a two hour hearing today in Seminole County, an apology for the death of Trayvon Martin, and a potentially monumental admission by a state investigator that as of now, special prosecutor Angela Corey does not have evidence to refute George Zimmerman’s assertion that Trayvon Martin initiated the scuffle leading to his death, George Zimmerman has been granted the opportunity to post a $150,000 bond.  As is often required in cases of the like, Zimmerman will have no contact with the victim’s family, will have a GPS monitoring device to ensure he doesn’t flee, cannot use controlled substances, and cannot possess firearms during the pendency of his case.

As predicted in a prior blog, Zimmerman’s $150,000 bond is on the high side of Seminole County’s bond schedule.  Conversely, it is clear this Judge does not feel Zimmerman is a risk to the community, is a flight risk, and has very little concern over Zimmerman’s prior history or lack thereof.  Stated otherwise, despite the serious nature of the charge against him, he just doesn’t have a history indicative of a notion that he will commit further wrongs while out on bond.  Florida Statute 903.046 sets out the criteria a Judge must consider in setting a bond.  Applying George Zimmerman’s history in conjunction to the known facts of this case indicate that this Judge made a fair decision.

 

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Motion to Recuse Judge in Zimmerman Case

April 19th, 2012
We’ve learned George Zimmerman’s attorney plans on filing a motion to recuse sitting Circuit Court Judge Jessica Recksiedler.  Judge Reckseidler is married to a partner of Orlando defense attorney Mark Nejame, an attorney once contacted by Zimmerman.  Nejame referred the case to current attorney Mark O’Mara and will act as a contributor to CNN throughout the duration of the case.  It seems O’Mara will make this request so as to prevent any appealable issue that could be asserted in that Judge Recksiedler is through several levels of separation, connected to Zimmerman’s defense team.  From a practical standpoint, this is not something that causes my eyebrow to raise, though I can certainly see where O’Mara would make the move so as to chop off at the knees, any appeal on this issue the State would have.
In Florida, pursuant to Florida Rule of Judicial Administration 2.330 a motion to disqualify a judge requires the following:

RULE 2.330. DISQUALIFICATION OF TRIAL JUDGES


(a) Application. This rule applies only to county and circuit judges in all matters in all divisions of court.


(b) Parties. Any party, including the state, may move to disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the Code of Judicial Conduct.


(c) Motion. A motion to disqualify shall:

(1) be in writing;

(2) allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification;

(3) be sworn to by the party by signing the motion under oath or by a separate

affidavit; and

(4) include the dates of all previously granted motions to disqualify filed under this rule in the case and the dates of the orders granting those motions.

The attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith. In addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.


(d) Grounds. A motion to disqualify shall show:

(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

(2)   that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.


(e) Time. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.


(f) Determination — Initial Motion. The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.


(g) Determination — Successive Motions. If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (d)(1), a successor judge shall not be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion.


(h) Prior Rulings. Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.


(i) Judge’s Initiative. Nothing in this rule limits the judge’s authority to enter an order of disqualification on the judge’s own initiative.


(j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.



No doubt subsection (d)(2) is where O’Mara will hang his hat.  His motion will allege because Judge Recksiedler is married to a partner of CNN consultant Mark NeJame and Nejame is the referring attorney to O’Mara, that there is too much potential for conflict.  My guess is that O’Mara will have no issue getting this motion granted if for nothing else but this Judge erring on the side of caution.  Ultimately I don’t think this issue is of consequence regardless.

 

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The Ultimate Bandage?

April 17th, 2012
It was learned on April 16, 2012 that George Zimmerman’s neighbors saw him with bandages on the back of his head and with a broken nose, facts which would most certainly aid Zimmerman’s defense effort.  This story in the New York Daily News details what his neighbors saw regarding Zimmerman’s injuries.  In short, injuries of the like would support Zimmerman’s allegation that Martin was on top of him punching him and beating his head into the ground, causing risk for serious injury.  Had Martin attacked Zimmerman and Zimmerman been in reasonable fear of his life, he would have grounds to use deadly force.  In sandstorm that is this case, we have heard Zimmerman had injuries, that he had NO injuries, and now it seems he at the very least was wearing some type of bandage to either treat an injury or make it look like he was treating an injury.
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Don’t get overwhelmed with this information and assume that locks it up for Curious George.  A good prosecutor will argue that Zimmerman was covering his a$$ for this very reason.  He is a concealed weapons permit holder and with that comes at least a surface knowledge of Florida’s stand your ground law.  These facts, without a witness, cut close to the line no matter how you look at it and it is possible George was initiating “Operation CYA” and building a defense.  Further, if he contacted an attorney after the fact (I believe he likely would have whether it’s known or unknown) no doubt he was told to bandage up “if” he had any injury at all so as to broadcast that fact and help his defense effort.  Obviously, this is an argument the State could use.  However, regardless of whether the bandages were legitimate, if they were in fact on Zimmerman, it is something the defense team could really hop up and down on.  It supports his story, plain and simple.
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Keep in mind throughout this process THE STATE must prove beyond a reasonable doubt, that Zimmerman murdered Trayvon Martin with a  depraved mind, whereas Zimmerman must only show by a preponderance of evidence that he was entitled to use the defense of stand your ground.  In other words, the State must show that there is no other reasonable explanation for the death of Trayvon Martin other than the notion that George Zimmerman killed him with a depraved mind.  Think about that.  To put this in perspective, this is a higher standard than the standard the State of Florida must meet to come into your home and remove your child for neglect.  Proving this case beyond a reasonable doubt will be INCREDIBLY hard for them to do short of nearly overwhelming evidence.  Zimmerman, on the other hand, must merely tip the scales ever so slightly in his favor in support of his stand your ground defense.  This is a much lower standard.
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All in all, there is much to come in this saga and at this point all any of us can do is speculate.  I believe that if these neighbor witnesses are credible, they will aid Zimmerman and his defense.  Time will tell.  If you’ve been charged with a crime in Clearwater, Tampa, St. Petersburg, Pasco, Manatee, or Polk County, contact Clearwater Criminal Lawyer Jason Mayberry today at 727-771-3847.

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Zimmerman Arrested, What Now?

April 16th, 2012

Earlier last Friday George Zimmerman appeared in court to learn formally what the charges were against him filed by Special Prosecutor Angela Corey.  This was very much a formality as we’ve all known for a couple days Zimmerman will face second degree murder charges as referenced in my earlier blog on this subject.  Early on Friday April 13th Zimmerman’s attorney announced his intention to request a reasonable bond for Zimmerman at an April 20th hearing.  The question is, will he get it and how does a court go about making that determination?

Criminal defendant’s in Florida are entitled to a bond for most crimes.  Capital felonies punishable by death, Life felonies punishable up to life imprisonment, and violations of probation are generally the allegations that are scrutinized most by judges and could lead to a bond being denied.  In Zimmerman’s case, second degree murder is a first degree felony punishable by life.  A look at the Seminole County “First Appearance Manual“ on page 31 lists a life felony as a crime that the Court has discretion to deny bond on altogether.  This doesn’t necessarily mean the Court will deny bond, however many jurisdictions use bond schedules much like this one based off of Florida statute to find uniformity in awarding bonds.  So, now that the Court can deny bond, does that mean they will?  Not necessarily.

Pursuant to Florida Statute 903.046, the Court will look at the following criteria in their determination of whether to award a bond and if so, how much:

 

(a) The nature and circumstances of the offense charged.

(b) The weight of the evidence against the defendant.

(c) The defendant’s family ties, length of residence in the community, employment history, financial resources, and mental condition.

(d) The defendant’s past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings. However, any defendant who had failed to appear on the day of any required court proceeding in the case at issue, but who had later voluntarily appeared or surrendered, shall not be eligible for a recognizance bond; and any defendant who failed to appear on the day of any required court proceeding in the case at issue and who was later arrested shall not be eligible for a recognizance bond or for any form of bond which does not require a monetary undertaking or commitment equal to or greater than $2,000 or twice the value of the monetary commitment or undertaking of the original bond, whichever is greater. Notwithstanding anything in this section, the court has discretion in determining conditions of release if the defendant proves circumstances beyond his or her control for the failure to appear. This section may not be construed as imposing additional duties or obligations on a governmental entity related to monetary bonds.

(e) The nature and probability of danger which the defendant’s release poses to the community.

(f) The source of funds used to post bail or procure an appearance bond, particularly whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities. The burden of establishing the noninvolvement in or nonderivation from criminal or other illicit activity of such proffered funds, real property, property, or any proposed collateral or bond premium falls upon the defendant or other person proffering them to obtain the defendant’s release.

(g) Whether the defendant is already on release pending resolution of another criminal proceeding or on probation, parole, or other release pending completion of a sentence.

(h) The street value of any drug or controlled substance connected to or involved in the criminal charge. It is the finding and intent of the Legislature that crimes involving drugs and other controlled substances are of serious social concern, that the flight of defendants to avoid prosecution is of similar serious social concern, and that frequently such defendants are able to post monetary bail using the proceeds of their unlawful enterprises to defeat the social utility of pretrial bail. Therefore, the courts should carefully consider the utility and necessity of substantial bail in relation to the street value of the drugs or controlled substances involved.

(i) The nature and probability of intimidation and danger to victims.

(j) Whether there is probable cause to believe that the defendant committed a new crime while on pretrial release.

(k) Any other facts that the court considers relevant.

(l) Whether the crime charged is a violation of chapter 874 or alleged to be subject to enhanced punishment under chapter 874. If any such violation is charged against a defendant or if the defendant is charged with a crime that is alleged to be subject to such enhancement, he or she shall not be eligible for release on bail or surety bond until the first appearance on the case in order to ensure the full participation of the prosecutor and the protection of the public.

Considering the above, I would focus on subsection A, B, C, D, and E in arguing for his bond.  The nature of the offense is obviously a murder allegation.  This criterion overlaps the weight of the evidence criterion in that though there is an allegation of murder, the amount of evidence against Zimmerman is an unknown to this point and likely the same will be true on April 20th.  Though charges were brought, it seems the story is one known only by Zimmerman himself and prospectively two other witnesses who claim to have seen the fight, in addition to one other who did not see but heard.  With that being said, using a reasonable doubt standard, at this point it seems the weight of evidence against Zimmerman, is balanced with the weight of evidence for Zimmerman.  I don’t believe those criteria will be as detrimental to Zimmerman as it is to most charged with a similar crime.  With respect to ties to the community and how long he’s been in the Sanford area, it is my understanding that he’s been there since 2009 and considers the area his home.  I would argue that this is to his benefit in arguing that he is not a risk of flight as he has substantial ties to the community having lived there for 3 years and has a wife that may (or may not since this dust up) remain there.  It’s unclear as to what Zimmerman’s criminal history is.  I have read he was twice accused in 2005 of incidents involving criminal mischief and violence.  However, he does hold a concealed weapon’s permit in Florida and considering the strict requirements for this privilege, it appears as if Zimmerman is pretty clean.  If that is the case, that will be to his benefit at his bond hearing under subsection “D” of 903.046.  With respect to the risk of flight Zimmerman poses, here I would jump up and down on the fact that the man turned himself into the authorities.  Zimmerman could just as easily hopped on a plane to Wallawalladingdong, Afghanistan when this oven was preheating and never been heard from again.  He didn’t.  At the least he has honored his responsibility to answer to his charge.  That, arguably, makes him far from a flight risk. Lastly, and the criteria likely to raise the most eyebrows for advocates of Trayvon Martin is the “danger to the community” Zimmerman poses.  It can be argued that this incident, if in fact he is at fault, is an isolated incident and he poses no further risk to society.  Martin’s advocates will argue that he is a rogue seeking vigilante justice and that he has done just that with Trayvon.  They will cite his prior 46 nonemergency calls to 911 between August 2004 and the date of this shooting to say he has a propensity to play “supercop” and try to do the job of the professionals on his own.  On this one, they may be correct and they may not.

All of the above will be argued just the opposite by the State Attorney’s Office no doubt and there will likely even be a pretrial detention brief filed in writing to prevent such release of Zimmerman.  All in all, Zimmerman is undoubtedly located in the safest possible place he could be right now as he sits in the Seminole County Jail.  With that being said, I do believe a reasonable bond will be awarded to Zimmerman in concert with the charge and I believe that amount will be somewhere between $50,000-$150,000.  I believe Zimmerman’s history, ties to the community, and disputable evidence against him allow for a Judge to grant a bond in good faith and allow for the release of George Zimmerman.

 

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Justice for Trayvon? Time will tell.

April 11th, 2012
Today Special Prosecutor Angela Corey decided to file second degree murder charges against George Zimmerman in the death of young Trayvon Martin.  The threshold issue that will no doubt continue to be litigated is whether Zimmerman was within his right in Florida to shoot Martin out of self defense.  This issue will be decided in part on who was the aggressor, amongst other things mentioned in my prior blog.  Second degree murder is a first degree felony considered a “life felony” punishable by a maximum of life imprisonment with a minimum mandatory 25 year prison term should one be convicted.  As this is not a capital case based on the second degree murder charge, Zimmerman will be entitled to a bond.  Based on the fact Zimmerman turned himself in, he will likely not be considered a flight risk and will be awarded a bond.
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The pertinent portions of Florida Statute involved are found in 782.04(2) and defines a second degree murder charge as:
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The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
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With this announcement, it is now clear why Special Prosecutor Angela Corey elected to forego the grand jury process of seeking an indictment.  Though a grand jury proceeding involves only evidence presented from a prosecutor’s office, this case was one that cut very close to the line.  No doubt Corey wanted to avoid a “no bill”  handed down from a grand jury, thereby shutting her effort down before it could start.  In filing against Zimmerman via “information,” Corey held all the cards and could ensure that a charge would be brought.
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Welcome to the second coming of the Casey Anthony case ladies and gents.  No doubt this case will have just as much press attention, jabber jawing by Nancy Grace, and proclamations by Jesse Jackson and Al Sharpton.  Angela Corey’s office has a tall task ahead of them, as does Zimmerman’s counsel.  This one’s going to be interesting!

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The Tragedy That is Trayvon

March 29th, 2012
He was 17.  He had recently purchased iced tea and skittles at a local convenience store.  Trayvon was wearing a hoodie sweatshirt while walking back to his father’s fiance’s residence to finish watching a basketball game.  He is now dead, shot at the hands of George Zimmerman, a member of the neighborhood watch for the subdivision in which Trayvon was visiting.  Those facts, in addition to Al Sharpton and Jesse Jackson showing up to Sanford, FL for a rally calling for the head of George Zimmerman are all we know at this point.  That’s it.  As of March 28, 2012, nothing else conclusive is known.
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This is my blog and so I’ll write it from my perspective.  Did Zimmerman have the right to shoot Trayvon?  No one knows at this point.  Is it a tragedy that a young man is dead?  Absolutely.  Do I believe in the stand your ground law we have here in Florida?  You’re damn right I do.  Do I believe in the right of a civilian to be armed and further to carry a concealed weapon?  Yes.  I am a middle of the pack voter, feeling extremity at either end of the spectrum will do nothing but divide society and political issues even further apart than they already are.  I am not a card carrying member of the NRA, nor do I cry for trees and drive a car with a hamster shelling out as much horsepower as his fat little legs can chug out.  With that being said, hopefully I can give a neutral perspective on this issue, aside from the liberal media, reverends jockeying to get facetime on TV, and conservative gun rights zealouts screaming that Trayvon deserved it.  Again, all of you can sit down.  This is my blog.
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In April 2005 Florida Statute 776.012 and 776.013 were passed, thereby extinguishing the necessity of an individual to make an effort to flee from harm.  776.012 is the applicable statute for Trayvon’s case and the language of the statute is as follows:
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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; or

(2) Under those circumstances permitted pursuant to s. 776.013.
This statute is self explanatory in that an individual that reasonably believes their use of deadly force is necessary to prevent getting killed or coming damn close, can fire away.  No need to run, no need to hide.  As applied to Trayvon, many questions exist.  Who attacked who?  If Zimmerman attacked Trayvon and Trayvon got the upper hand, Zimmerman could not just pop Trayvon as Trayvon would not have been using “unlawful force” against Zimmerman.  Under this scenario, Trayvon had the right, under the same statute, to defend himself.  Zimmerman should be prosecuted under this scenario.  Conversely, if Zimmerman ran his mouth to Trayvon and Trayvon proceeded to beat Zimmerman to a pulp and Zimmerman reasonably believed he had to shoot in order to avoid his brains from getting bashed in, Zimmerman likely would enjoy the right to use deadly force and Trayvon would have then been using “unlawful force” in his attack.  As any 2nd year law student knows, sticks and stones may break bones, but words don’t warrant beat downs.
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Contrary to the latest wave of press justifying Zimmerman’s actions via an independent witness attesting that Trayvon was on top of Zimmerman and that Zimmerman received a broken nose and had injuries to the back of his head, this in and of itself is not conclusive.  What in total, did the witness see?  Going the preceding paragraph, if Zimmerman was playing super cop and attacked Trayvon, I argue Trayvon has a right to fight back.  What about Zimmerman’s alleged broken nose and skidmarked head?  Again, this proves nothing as there is no conclusive evidence as to the aggressor.   Alas, there is supposedly  a police video that shows no conclusive video of injury to Zimmerman.
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Unfortunately, I have my doubts this case will ever be resolved conclusively and to the satisfaction of all parties.  My gut tells me the special prosecutor won’t have enough to move forward on a charge against Zimmerman.  I don’t agree that this is race issue, though I respect the right of those who do to voice their opinions just as I respect the right of gun owners to bear arms.  I know this is a very tough case for a prosecuting body based on the facts or lack thereof.  No law is perfect and the aforementioned statutes aren’t meant to justify the use of negligent deadly force, but rather to add a layer of protection to the law abiding citizen who fears for his life at the hands of an assaulter with criminal intentions.  Whether or not the law did its job in this case is yet to be known.  Aside from the legal mumbo jumbo, posturing, and talking heads yapping, it’s a tragedy that a young man died before his time and my heart goes out to the Martin family.

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