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PostPosted: Wed Jan 02, 2013 12:18 am 
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Wolf wrote:
I mean essentially Zimmerman will be found innocent based on the fact that there was no proof provided that he did not act in defense, but no proof on his side that he did, and no proof that Trayvon started a confrontation, I mean I get the feeling this court case will be referred back to by other court cases for time to come. I've been looking for other similar court cases but I just have not found one.


Self-defense is an affirmative defense. The defendant bears the burden of proof, and the defense only applies if the prosecution has put forward a prima facie homicide case.

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PostPosted: Wed Jan 02, 2013 12:50 am 
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A Legal Lohengrin wrote:
Wolf wrote:
I mean essentially Zimmerman will be found innocent based on the fact that there was no proof provided that he did not act in defense, but no proof on his side that he did, and no proof that Trayvon started a confrontation, I mean I get the feeling this court case will be referred back to by other court cases for time to come. I've been looking for other similar court cases but I just have not found one.


Self-defense is an affirmative defense. The defendant bears the burden of proof, and the defense only applies if the prosecution has put forward a prima facie homicide case.


It's true that self defense is an affirmative defense, but who has the burden is a little more nuanced than that. The defense only bears the burden of production. If the defense produces evidence sufficient to raise the issue, the judge will instruct the jury on the elements of self defense. The government will then have the burden to prove beyond a reasonable doubt that Zimmerman was not acting in self defense.


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PostPosted: Wed Jan 02, 2013 1:01 am 
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Maybenaut wrote:
It's true that self defense is an affirmative defense, but who has the burden is a little more nuanced than that. The defense only bears the burden of production. If the defense produces evidence sufficient to raise the issue, the judge will instruct the jury on the elements of self defense. The government will then have the burden to prove beyond a reasonable doubt that Zimmerman was not acting in self defense.


True, but the defense first has to have raised a reasonable doubt before the prosecution again has to rebut. And, of course, if the prosecution has not proved homicide, then the defense has to do nothing. It is generally an element of a self-defense argument, though, that the defendant did, indeed, kill the victim.

And however the issue may be phrased, in actuality, both sides really have the burden of persuasion. A jury that is not persuaded will not rule in your favor.

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PostPosted: Wed Jan 02, 2013 1:19 am 
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A Legal Lohengrin wrote:
Maybenaut wrote:
It's true that self defense is an affirmative defense, but who has the burden is a little more nuanced than that. The defense only bears the burden of production. If the defense produces evidence sufficient to raise the issue, the judge will instruct the jury on the elements of self defense. The government will then have the burden to prove beyond a reasonable doubt that Zimmerman was not acting in self defense.


True, but the defense first has to have raised a reasonable doubt before the prosecution again has to rebut. And, of course, if the prosecution has not proved homicide, then the defense has to do nothing. It is generally an element of a self-defense argument, though, that the defendant did, indeed, kill the victim.

And however the issue may be phrased, in actuality, both sides really have the burden of persuasion. A jury that is not persuaded will not rule in your favor.


I agree that the prosecution has to prove homicide, and I agree about both sides having the burden of persuasion as a practical matter (even though the law places no burden on the defense). But the defense does not "first has to have raised reasonable doubt" to get the self defense instruction; the defense only has to produce "some evidence" that he acted in self defense. I suppose that if he did that, that might amount to reasonable doubt as to his guilt in some cases, but it wouldn't always. And the danger in expressing it that way is that it suggests the defendant bears the burden to prove his innocence, which he does not. Even with respect to affirmative defenses, the burden always ultimately remains with the government (the insanity defense is now famously an exception to that rule after Hinkley was found not guilty by reason of insanity -- at least in the federal system and the military the defense bears the burden to prove insanity by clear and convincing evidence).


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PostPosted: Wed Jan 02, 2013 3:15 pm 
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Do you know how much constitutes "some evidence?" That has the sound of the amount of evidence necessary to survive a summary judgment motion in the civil context. I'd guess the defendant's own testimony would be sufficient, or without that, the rather equivocal injuries Zimmerman had would allow the argument to be made.

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Even with respect to affirmative defenses, the burden always ultimately remains with the government (the insanity defense is now famously an exception to that rule after Hinkley was found not guilty by reason of insanity -- at least in the federal system and the military the defense bears the burden to prove insanity by clear and convincing evidence).


And your correction is, of course, correct.

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PostPosted: Wed Jan 02, 2013 4:06 pm 
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A Legal Lohengrin wrote:
Do you know how much constitutes "some evidence?" That has the sound of the amount of evidence necessary to survive a summary judgment motion in the civil context. I'd guess the defendant's own testimony would be sufficient, or without that, the rather equivocal injuries Zimmerman had would allow the argument to be made.

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Even with respect to affirmative defenses, the burden always ultimately remains with the government (the insanity defense is now famously an exception to that rule after Hinkley was found not guilty by reason of insanity -- at least in the federal system and the military the defense bears the burden to prove insanity by clear and convincing evidence).


And your correction is, of course, correct.

A comparison to summary judgement in a civil context sounds about right (although procedurally it will look much different). Florida case law might have its own language with respect to the quantum of evidence needed to raise the issue, but from everything I've read about this, Florida follows the same "some evidence" requirement that most other jurisdictions have regarding affirmative defenses. Whether Zimmerman gets the self defense instruction is a question of law to be resolved by the judge, but it will be based on admissible evidence presented at the trial. The defense will point to whatever evidence is before the jury from which it can conclude that he acted in self defense, and the judge will decide if it's enough to raise the issue (it's a very low threshold). Zimmerman wouldn't necessarily have to testify; like you said, the defense could point to injuries, the 911 call, etc. -- anything they think supports their claim of self defense. If the judge finds evidence sufficient to raise the issue, he'll give the instruction. Whether Zimmerman acted in self defense is a question of fact for the jury.

I'm very interested to see whether Zimmerman testifies. Even though he doesn't have to, and the jury will be instructed over and over again that he doesn't have any burden, yada, yada, yada, I think if the defense is self defense, the jury is going to want to hear that from his own lips.

Edit: Whether the government proved beyond a reasonable doubt that Zimmerman did not act in self defense is a question of fact for the jury


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PostPosted: Wed Jan 02, 2013 4:25 pm 
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Maybenaut wrote:
I'm very interested to see whether Zimmerman testifies. Even though he doesn't have to, and the jury will be instructed over and over again that he doesn't have any burden, yada, yada, yada, I think if the defense is self defense, the jury is going to want to hear that from his own lips.


I agree on that, and that was part of my thinking about the issue. Putting on Zimmerman is really a double-edged sword. Frankly, I believe he is a liar and that he is not a very good liar. I think any competent prosecutor would rip him to shreds on cross examination, and he is arrogant and stupid enough to think he can lie and get away with it.

So I hope to see him on the stand in this case, because I want to see him convicted.

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PostPosted: Sat Jan 05, 2013 6:51 am 
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A Legal Lohengrin wrote:
Maybenaut wrote:
I'm very interested to see whether Zimmerman testifies. Even though he doesn't have to, and the jury will be instructed over and over again that he doesn't have any burden, yada, yada, yada, I think if the defense is self defense, the jury is going to want to hear that from his own lips.


I agree on that, and that was part of my thinking about the issue. Putting on Zimmerman is really a double-edged sword. Frankly, I believe he is a liar and that he is not a very good liar. I think any competent prosecutor would rip him to shreds on cross examination, and he is arrogant and stupid enough to think he can lie and get away with it.

So I hope to see him on the stand in this case, because I want to see him convicted.


I couldn't agree more about Zimmerman being arrogant and ignorant enough to believe he can lie and get away with it. After all, he still thinks he convinced the SPD that it was self-defense despite all the inconsistencies in his statements. If O'Mara goes ahead with a self-defense hearing, it's my understanding that Zimmerman would have to testify. In doing so, he opens himself up to a cross-examination that I imagine would tear his many different fairy tales regarding the events of the 26th of February, to absolute shreds.

I looked at it from a medical standpoint from the very beginning and clearly believed he was lying about his injuries and his alleged being in fear for his life. Not only were his injuries minor (I saw far worse as a result of a playground scuffle during recess when I would fill in for the school nurse on occasion) but he only saw a physician the following day at his employer's request to obtain a note that would allow him to return to work. He obviously didn't tell the EMS techs that his head was allegedly banged against the sidewalk for a minute and that he was losing consciousness or they would have taken him to the hospital or demanded that he sign a medical release. His vital signs were all within normal limits only minutes after the adrenaline was supposedly pumping and he was in fear for his life. He also said that at the time he was in severe pain but didn't use those words with the techs. Considering he has a self-professed history of high blood pressure, I'd not only expect to see his B/P elevated but his heart rate and respirations, too. He told Hannity it was the most traumatic event he ever lived through but only moments after it happened, his vitals were normal? No f'ing way! I've seen the results of real fist fights where a fist slams into a face repeatedly,( GZ's claims vary from more than a dozen times to 20 to 30 times as far as how many times TM hit or punched him in the face ) and they don't look like this https://encrypted-tbn3.gstatic.com/imag ... pgH7ybR_oA a few hours later. In fact, many times their families can't recognize them due to bruising and swelling. Yet, there we have GZ looking like he was in a minor scuffle at best. The cuts on the back of his head were only 1/4" and 3/4" in length w/o enough depth to require sutures. As a Nurse Practitioner, I call bullshit on his story. He and Trayvon were seen running behind the townhomes by two witnesses yet not once in GZ's story does this occur. According to his initial written statement, the fight started a few feet from the "T", where he was dropped by a punch to the nose, or as we see in the re-enactment, (when GZ suddenly finds himself faced with a marker for TM's body 40 feet from where he said the fight started) he was punched, he might have stumbled, tripped, etc. as he was swatting at the air but somehow he ended up on the ground but he didn't move that fight 40 feet from where it started. He claimed it started there and ended there, no running, no arguing as eyewitnesses also stated, and that's only a portion of the inconsistencies found in the re-enactment!

I've looked at a lot of the videos online, the better ones on YouTube are done by LLMPapa and he has torn the timeline that GZ provides to pieces, among other discrepancies he's highlighted. If the state is half as thorough as some of the things I've seen that are backed up by statements from GZ or the SPD, he should be found guilty. I sure as hell don't want to see him walk and I'd settle for manslaughter which, if I understand correctly, will be allowed to be considered by the jury. That would get him a minimum of 25 years. It's not life, but it's far better than nothing. Trayvon Martin's death cannot go unanswered for, he deserves justice and so does his family. I've never been a visitor to any of the Crime Forums prior to this case, but it just hits home, as a Mother, as a Pediatric Nurse and as the grandmother of a bi-racial child. I pray that something will be accomplished as far as our gun control laws being re-written. This past year has brought the problem into the public light more than ever. If anything positive can happen as a result of these tragedies, then our legislators need to do it. I hope they have the guts to stick with it.

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PostPosted: Sat Jan 05, 2013 11:26 am 
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I pretty much agree with exactly this. One note is that I think Zimmerman will note, in watching the other witnesses, how incredible his story is, and will try to change it yet again to clear up the inconsistencies, making it even less believable.

I think it would be a mistake for the prosecution, though, not to argue the lesser included offenses along with the second degree murder charge. The defense could easily spread enough bullshit to make a conviction on even second degree murder difficult, and leaving the jury without an alternative charge to convict would be a bad gamble.

It may even be reasonable to offer a plea to manslaughter, at least if they can also stipulate to sentencing to some degree.

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PostPosted: Sat Jan 05, 2013 12:58 pm 
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A Legal Lohengrin wrote:
I pretty much agree with exactly this. One note is that I think Zimmerman will note, in watching the other witnesses, how incredible his story is, and will try to change it yet again to clear up the inconsistencies, making it even less believable.

I think it would be a mistake for the prosecution, though, not to argue the lesser included offenses along with the second degree murder charge. The defense could easily spread enough bullshit to make a conviction on even second degree murder difficult, and leaving the jury without an alternative charge to convict would be a bad gamble.

It may even be reasonable to offer a plea to manslaughter, at least if they can also stipulate to sentencing to some degree.


I watched the full interview w/Hannity last week for the first time. It's difficult to stomach, watching GZ's smirks and laughing, especially when asked about being familiar with the SYG law and his denying the same. One of the biggest changes in the story was GZ's saying that Trayvon wasn't running but instead, he was skipping away from him. Immediately prior to asking that question, Hannity tells him all the nation is watching and listening and it made me wonder if that is why he changed his story. Did he think the running part was questionable and that's why he changed his story from running to skipping as outrageous as it sounds? After all, in 3 previous interviews with the Detectives in charge of the case and in his written statement, along with the 911 call, he used running. In fact, on the 911 call, he said, "Shit, he's running!" Did he really mean, "Shit, he's skipping!"? Lol, I doubt it.

An attorney from Florida who was writing about the case on another forum had said that manslaughter would automatically be included in the jury instructions. I haven't read or heard anything contrary to this but I also haven't heard anything that confirmed it, either. I do know that a charge of manslaughter, with a firearm being discharged, is an automatic 25 year sentence in FL, so I certainly hope this info is correct.

Zimmerman will try to cover up his inconsistencies brought to light by other witnesses, but like you say, it won't work, he'll only sink himself deeper with more lies. It may still be difficult to prove 2nd degree murder but if the right buttons are pushed, GZ will bring himself down. He's arrogant enough to believe that he is smarter than everyone else and can lie well enough to fool a jury. I hope the jury has at least several people with common sense because that should be all that's necessary to see through his fairy tales.

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PostPosted: Sat Jan 05, 2013 1:13 pm 
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Jocelyn9596 wrote:
I hope the jury has at least several people with common sense because that should be all that's necessary to see through his fairy tales.


It is, of course, the job of defense counsel to move heaven and earth to keep such people off the jury.

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PostPosted: Sat Jan 05, 2013 7:59 pm 
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A Legal Lohengrin wrote:
Jocelyn9596 wrote:
I hope the jury has at least several people with common sense because that should be all that's necessary to see through his fairy tales.


It is, of course, the job of defense counsel to move heaven and earth to keep such people off the jury.


Considering O'Mara's ridiculous decision to allow GZ to sit for an interview with Hannity, I'm hoping that this is a sign of things to come for the defense as far as future decisions being made. I think MOM has his hands full with his client and is probably regretting the day he said that he would take on this case. He got excited about the initial amounts of $$ coming in and hoped that the interview would do the same, not a smart move no matter how much money you hope to raise. ](*,)

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PostPosted: Sat Jan 05, 2013 9:12 pm 
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Jocelyn9596 wrote:
A Legal Lohengrin wrote:
Jocelyn9596 wrote:
I hope the jury has at least several people with common sense because that should be all that's necessary to see through his fairy tales.


It is, of course, the job of defense counsel to move heaven and earth to keep such people off the jury.


Considering O'Mara's ridiculous decision to allow GZ to sit for an interview with Hannity, I'm hoping that this is a sign of things to come for the defense as far as future decisions being made. I think MOM has his hands full with his client and is probably regretting the day he said that he would take on this case. He got excited about the initial amounts of $$ coming in and hoped that the interview would do the same, not a smart move no matter how much money you hope to raise. ](*,)


Maybe he's a wannabe Mark Geragos

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PostPosted: Tue Feb 05, 2013 9:24 pm 
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Judge Debra Nelson denied a defense request to postpone the murder trial scheduled to start in June.
Topeka Capital-Journal wrote:
George Zimmerman's lead attorney Mark O'Mara presented a motion to have the trial pushed back to November. He argued that prosecutors had been slow to turn over needed evidence.

State attorney Bernie de la Rionda denied the accusation the prosecution had been dragging its feet and said it was rather a case of the defense using inefficient means to secure the information it wanted.

With roughly four months left before the scheduled June 10 trial, Judge Debra Nelson said she felt the defense still has time to work out the outstanding issues.

"I don't see any of your issues to be insurmountable," Nelson said in denying the motion.
http://ap.cjonline.com/pstories/us/2013 ... 4389.shtml

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PostPosted: Tue Mar 05, 2013 4:51 pm 
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From HP

“George Zimmerman Waives Right To 'Stand Your Ground' Hearing In Stunning Twist To Trayvon Martin Case”

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In the year since it landed on the international news radar, the Trayvon Martin case has raised a global discussion about Florida's controversial "Stand Your Ground" law. But in a stunning twist of events Tuesday morning, George Zimmerman's attorneys waived their client's right to a scheduled April 22 hearing that was to be held under the law that has sparked so much debate, ABC news reports.

Zimmerman, the former neighborhood watch volunteer who is facing second-degree murder charges for the shooting of 17-year-old Martin, is awaiting trial set for June 10, 2013. His counsel's move waiving his right to the April hearing leaves open the opportunity for it to be rolled into Zimmerman's trial this summer, and gives the defense more time to prepare, an obvious concern after a motion to delay the proceedings was denied.

Martin was headed back to the home of his father's girlfriend shortly after 7 p.m. on Feb. 26, 2012, after a trip to the convenience store at the time he was killed. George Zimmerman, a 28-year-old neighborhood-watch member, reported Martin to the police and told the 911 dispatcher that the teenager looked "suspicious." Zimmerman was told by the dispatcher not to follow Martin, but a few minutes after the police call, Martin lay dead from a gunshot to the chest.

Zimmerman admitted to police that he shot Martin, but claimed he acted in self-defense. He was later arrested and charged with second-degree murder.


More at the link
http://www.huffingtonpost.com/2013/03/0 ... 12347.html

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PostPosted: Tue Mar 05, 2013 5:08 pm 
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Well, the burden is on the defense to establish the applicability of the stand your ground immunity. Since the physical evidence pretty much cuts against Zimmerman's claim, he would have to take the stand. If he did that, he would be subject to cross examination. If he were eviscerated on cross examination, any future testimony inconsistent with what he gave at the stand your ground hearing could be introduced to impeach that testimony. It's possible it could be introduced for a variety of other purposes under a variety of other hearsay exceptions, but at the very least, if the SYG hearing went very badly, it could seriously impede Zimmerman's ability to testify convincingly at trial.

I'm frankly not sure this is exactly a "stunning twist." IIRC, many posters to this very thread predicted that having a SYG hearing would be a mixed bag and that it might be wiser to waive it. In fact, we were already discussing this exact development and why it would be taken way back in August. I know news is all about the sensationalism, but calling this "stunning" is utter bullshit.

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PostPosted: Wed Mar 06, 2013 8:54 am 
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A Legal Lohengrin wrote:
I'm frankly not sure this is exactly a "stunning twist." IIRC, many posters to this very thread predicted that having a SYG hearing would be a mixed bag and that it might be wiser to waive it. In fact, we were already discussing this exact development and why it would be taken way back in August. I know news is all about the sensationalism, but calling this "stunning" is utter bullshit.

Just like they always say "in a rare and surprising legal maneuver, the defense asked the judge to dismiss all the charges at the close of the prosecution's case, arguing that the state had not proved its case." If it's network TV, they'll get some talking head to explain why it is both rare and surprising, when in reality it is neither.


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PostPosted: Wed Mar 06, 2013 11:29 am 
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A stand your ground hearing at which Zimmerman didn't testify would give the defense a look at the prosecution's case, albeit only after the defense proceeded. The defense would probably have to make out a prima facie stand your ground defense, though. And that would be quite difficult without Zimmerman's testimony. I suspect that it would interfere with the orchestrated testimony the defense is hoping to get from Zimmerman at trial.

Tough call, but in my view Zimmerman's testimony will not be helpful.

And remember what an expert I am: I predicted a quick jury verdict in the Casey Anthony case. While it was quick, I also predicted a conviction.

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PostPosted: Wed Mar 06, 2013 11:51 am 
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Turley

Key Witness In Zimmerman Accused Of Lying Under Oath
Published 1, March 6, 2013


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The murder trial of George Zimmerman just got a bit more complicated after an attorney revealed in open court that the girlfriend of teenager Trayvon Martin, known as Witness 8, is believed to have lied about her whereabouts following his death. The girlfriend has supplied a key account that portrayed Zimmerman as the aggressor from a brief telephone call with Martin. However, Mark O’Mara revealed in court that she is believed to have lied in stating under oath that she did not go to Martin’s funeral because she was hospitalized. While that does not change the account of the telephone call, it would be a lie under oath that could be prosecuted and would chip away at her credibility, particularly with another witness saying that Martin was seen on top of Zimmerman shortly before the shooting.

[...]

News accounts report that defense attorney Don West in court said that the girlfriend “lied” and that “[s]he, in fact, did not go to the hospital as she stated under oath.” West is quoted as saying that “[prosecutor] Mr. [John] Guy represented there would not be hospital records confirming her sworn statement, because, in fact, she lied.”

A lie in a sworn statement is a crime and we have previously discussed how prosecutors are often inconsistent in who they choose to charge — sometimes giving a pass to false accusers in high profile cases like the one involving the Duke Lacrosse case.

The lie, if proven, will add to the difficulty in the case. I have previously expressed my view that the prosecutors have yielded to public pressure in over-charging the case. Prosecutors will be in a tough position if a key witness made up her hospitalization under oath.

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PostPosted: Wed Mar 06, 2013 11:53 am 
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Sterngard Friegen wrote:
A stand your ground hearing at which Zimmerman didn't testify would give the defense a look at the prosecution's case, albeit only after the defense proceeded. The defense would probably have to make out a prima facie stand your ground defense, though. And that would be quite difficult without Zimmerman's testimony. I suspect that it would interfere with the orchestrated testimony the defense is hoping to get from Zimmerman at trial.

Tough call, but in my view Zimmerman's testimony will not be helpful.

And remember what an expert I am: I predicted a quick jury verdict in the Casey Anthony case. While it was quick, I also predicted a conviction.


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PostPosted: Mon Mar 25, 2013 9:20 am 
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George Zimmerman’s Brother: ‘Black Teens’ Are Killers

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en on Mar 25, 2013 at 9:04 am

Since he shot and killed 17-year-old Trayvon Martin last year, George Zimmerman has been trying to convince the public that he was not acting simply out of racist aggression but because Martin attacked him. Zimmerman’s brother, Robert Zimmerman Jr, is not helping his cause. On Saturday, Zimmerman went on a Twitter tirade against “black teens,” equating the boy killed by his brother with De’Marquise Elkins, the 17-year-old suspect in the murder of a Georgia infant.

As highlighted by Mediaite, Zimmerman tweeted a photo comparison between Elkins and Martin flipping their middle fingers with the caption, “A picture speaks a thousand words…Any questions?”

[...]

In case the reason for his comparison of the two young black men was unclear, Zimmerman later tweeted:

.@therealpest @michaelskolnik – Lib media shld ask if what these2 black teens did 2 a woman&baby is the reason ppl think blacks mightB risky

— Robert Zimmerman Jr (@rzimmermanjr) March 24, 2013


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PostPosted: Mon Mar 25, 2013 9:52 am 
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realist wrote:
George Zimmerman’s Brother: ‘Black Teens’ Are Killers

ThinkProgress

Quote:
.@therealpest @michaelskolnik – Lib media shld ask if what these2 black teens did 2 a woman&baby is the reason ppl think blacks mightB risky

Ppl shld ask if what GZimmerman did to a black teen is the reason ppl think GZimmerman mightB risky

](*,) ](*,)

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PostPosted: Fri Mar 29, 2013 3:30 pm 
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BDLR has responded to the defense. Although IANAL, this is one hell of a reply IMO. Will it serve as a warning to the defense that the prosecution is not playing? I haven't read anything about O'Mara's experience in murder trials and am off to do some research to see just what he's encountered prior to this one. Looking forward to hearing what our esteemed attorneys here at the FB have to say about the state's response.

http://tmwarriors.files.wordpress.com/2 ... -28-13.pdf

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PostPosted: Fri Mar 29, 2013 3:51 pm 
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Jocelyn9596 wrote:
BDLR has responded to the defense. Although IANAL, this is one hell of a reply IMO. Will it serve as a warning to the defense that the prosecution is not playing? I haven't read anything about O'Mara's experience in murder trials and am off to do some research to see just what he's encountered prior to this one. Looking forward to hearing what our esteemed attorneys here at the FB have to say about the state's response.

http://tmwarriors.files.wordpress.com/2 ... -28-13.pdf

IANAL, but after reading it? OUCH! That's going to hurt. :flame:

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