Podcast 55 A Case of Self Defense

4 Replies to “Podcast 55 A Case of Self Defense”

1. Ben, your last paragraph says it all.
   Point well taken about about who decides who is not worthy of CCW, I could be next.
   God bless and thank you for your service as a United States Marine.

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   1. Thanks for the comments and for listening. I’m honored that you listen to my show. Your reply proves what I already suspected; you truly are a scholar and a gentleman. Thank you.

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2. Ben, Your welcome, listened to the whole thing. Very enjoyable.

   A few points if I may;

   You mentioned Trayvon Martin choosing a path of violence in his life preceding the incident at hand, but you didn’t mention George Zimmerman had been taking Mixed Martial Arts classes for the previous 18 months leading up to the the shooting. He was also arrested previously for resisting arrest with violence and battery on a police officer, admittedly plea bargained down. And an ex girlfriend of GZ had once taken out a restraining order against him for domestic abuse.

   It was never determined by the court that TM was a felon violent aggressor, only that the state could not prove beyond a reasonable doubt that GZ didn’t use justifiable homicide. Actually, had TM survived and been charged with aggravated battery, he would have been given the same presumption of innocence that GZ was given, his story would have been very different than GZ, and the court would have told the jury this defendant, TM, must be given the benefit of doubt on all facts in dispute, and he must be found guilty only if it was beyond a reasonable doubt. If there is truly justice, he too would have been found not guilty.

   In my opinion, and I am a firearm owner and CCW holder, I don’t think GZ had the maturity to carry a concealed weapon, yes I realize he had the legal right to. In my opinion GZ was only “emboldened” and used very bad judgement because of that firearm, to leave the safety of his truck and later to proceed down that dark, secluded pathway in the same direction as that dangerous suspect he was reporting on.

   I believe GZ had a flashlight but it wasn’t working. DUH!

   To expand on your excellent flashlight summary, I believe “if” TM was possibly afraid, and that is a possibility (not all black males are fearless thugs), of this strange man following him around in the dark, the shining of a flashlight might have indicated “good guy” to TM, as most home invaders probably don’t go around the neighborhood shining flashlights everywhere and attracting attention. Also GZ had at least three opportunities to announce he was the Neighbor Watch Captain, which most likely would have deescalated the situation, even if TM was a criminal on the prowl. I will never understand why he didn’t. There was, however, no evidence presented in court that TM was out to commit any crime that evening.

   I appreciate your acknowledgement that both GZ and TM had a legal right to be where they were on that property. Too many television talking heads have proclaimed GZ had a legal right to walk anywhere he wanted and a legal right to follow anyone he wants, and yet in their next breath they proclaim, TM should have just gone, or run home, and none of this would have happened to him. Hypocrites! Kinda racist, the white skinned guy can be anywhere he wants, but the young black adult should just stay in his house (and if doesn’t run home, he must have some evil criminal intent).

   You are so right, Command Voice requires practice, but again, why didn’t GZ make any attempt to communicate he was Neighborhood Watch?

   As to the two small lacerations to his head, Sanford Investigator Serino wrote that he thought they were minimal and were just barely consistent with GZ’s story. The examining physicians assistant, also minimized the two, less than 3/4 inch lacerations, and a Medical Examiner said they could have been consistent with one incidental contact with the sidewalk, and not even one, let alone a dozen slams of the head.

   As to whether GZ planned to commit murder, it is my understanding that the law does not require a long length of time preparing to commit murder, and that a person can make a few decisions in a few seconds to constitute the charge of murder applicable. That being said, I believe Second Degree Murder was over reaching and manslaughter or perhaps something even less would have been more appropriate.

   As to the problems of starting the fight and then claiming self defense, I believe Florida Statute 776.041 declares an aggressor can start a fight, and if his opponent takes the level of force to a much higher level, the initial aggressor can claim justifiable homicide.

   776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
   (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
   (2) Initially provokes the use of force against himself or herself, 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;

   One last question for you Ben, if by some chance you have continued reading this far;
   Do you think Zimmerman should have kept his mouth shut until his attorney was present?
   In this case, the fact that he couldn’t stop talking, seemed to work out for him as he was able to get all of his statements into evidence without having to take the stand and to undergo cross examination. Someone may have to rewrite the book on post-shooting interaction with the police. Given what I perceived from his many statements, GZ taking the stand may have been very problematic.

   Thanks

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   1. Yes I read the entire thing! Thanks for the comment William. Let me take it a piece at a time:

      Violence; During the trial every little thing that Zimmerman ever did that looked violent was brought out by the prosecution. If someone dug back far enough into any of our records we would all look violent for something. Just the info on Martin’s phone was enough to show he was moving towards a life of violence. So I do think Martin was headed towards a life of violence while Zimmerman was moving away from one.

      You are right about Martin never being proven a Felon. I went back and read the Florida Statues 776 and 782. Both only say that “…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;” So I think you are right, the jury was probably thinking that “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself” and not to prevent a forceable felony. The Jury said Zimmerman believed he was in imminent danger and they (the jury) thought they would have been in danger if they where there knowing what Zimmerman knew. I stand corrected. It’s close, but not the same.

      I think you are right about the use of a flashlight. It could have helped de-escalate the situation before it got violent. On the talking heads being hypocrites, I have no idea because I listen to them as little as possible. They will have some legal analysts come and talk about the law for longer then it took me to look it up and read it. Half the time their “expert” isn’t even right.

      Starting the fight and then claiming self defense, that is a weird Florida law. Thanks for bringing that to my attention. The hard part of that law is going to be “…that he or she has exhausted every reasonable means to escape such danger…” But that law does blow out the idea that Zimmerman should be convicted because he was there and started the fight. Under Florida law that doesn’t have a lot of relevance in this case.

      Should Zimmerman have kept his mouth shut to police. At first I would have said yes, but in this case it sure worked for him. I was really surprised to see how well it worked for him. Self defense legal issues are changing all the time. This case might change the prevailing thoughts even further to telling more to the police. A long time ago, you would have been advised to say nothing without counsel. Now I even teach to say a little (just enough to establish that you are the good guy and need help). The full statement should be given in a couple days with your lawyer present. In his speaking to police, Zimmerman was truly gifted. That he could recount the situation so quickly afterwards and have it be mostly right. I can’t do that. I was tung-tied more then once in combat and my own thought is to wait until I get all my senses back to make a statement. As more and more cases happen we will learn more and more about talking to police. It’s all a work in progress.

      I do have one thing of caution for you, if I might. Judging whether Zimmerman had the maturity to carry a gun or not, I cannot say. I don’t personally know the man and I’m assuming you don’t either. If we start judging people we don’t know as unable to carry a gun, someone will judge us too. I just fear if we openly judge others (without total knowledge of all the facts), then someone will judge us. And that someone may be a government employee that thinks no one should own or carry a gun. That’s my 2 cents, and it’s worth what you paid for it.

      In the end; thank you for making those points. You forced me to do more research and learn something new. I really appreciate that. Keep the comments coming! And if you are ever in San Antonio we should get together.

      This entire case was a tragedy. It’s always a tragedy when someone loses their lives. Hopefully we can all learn something from this and going forward lives will be saved because of it.

      Stay Safe,

      Ben

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