Friday, March 30, 2012

Ignorant No More! Due Process and Florida Statutes

Dear nutjobs, “serious reporters,” and average Joes who are ignorant of the law, you might want to brush up on this before sticking your foot firmly in your mouth.  I know this can be a bit difficult to understand for some of you, so here’s the cliffs-notes version, with the full version below, in the hopes that you will be ignorant no more.

The Constitution of the United States, you know it’s that really old document that states the laws upon which all other laws are based, says in both the Fifth and Fourteenth amendments (it’s so important it’s in there twice) that all people have the right to due process.  The fifth amendment also states that no one can be held for a capital crime without being indicted by a grand jury.  Due process protects the rights of all people, even if he’s a 'nut-hoe ass cracka.'  This includes presumptive innocent, or as you may know it, innocent until proven guilty.  The law applies the same to everyone. 
 
The Constitution is the national law that applies to the whole country. State statutes are laws that apply to only that state.  Statutes can vary from state to state but they cannot go against what is in the Constitution.

Here are some important things to know about Florida statutes in regards to the Trayvon Martin/George Zimmerman case.

If a person feels they are threatened with bodily harm or death, they can use deadly force. The agency (police) may not (that means they can’t) unless there is probable cause that the force was unlawful.  This would be the case if a person claims self-defense and there is evidence that backs up this claim.  Once there is corroborating evidence for self-defense, the police cannot arrest.  The case is then sent to the State Attorney’s office for further investigation.  This is done because if the police arrest someone without sufficient cause it could violation of the state statute.  To all of you calling for an arrest of Zimmerman now, take special note of this.  You all watch TV, you should know, if proper procedures aren’t followed, evidence gets deemed inadmissible and the case gets thrown out.  Since the statute says ‘may not arrest’ it is better to not arrest than have evidence, or the case thrown out later.  The police must follow the law.

I’ve also included the definitions of murder, 1st and 2nd degrees as well as manslaughter, because I have seen way too many people confused about this.  Should this go to court, it is unlikely the prosecution would try him for first degree murder because it would be impossible to prove premeditation under the law.  Second degree murder or manslaughter, if the case even goes to trial, would be more likely, with manslaughter the probable.

The most important thing to remember is that it takes time for the process to work.  This is not TV where cases are tied up neatly with a bow at the end of an hour.  This is real life and works on real life time, not the fantasy timetable of television.  The state attorney’s office and the DOJ are investigating.  The supreme court of Seminole County, Florida is going to hear the case starting on April 10, 2012 to see if there is enough evidence to indict.  Due process is the only, legal, path to take.

 The Constitution of the United States
Bill of Rights
Amendment V
 
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 Amendment XIV
  Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
   

Florida Statutes:

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; or

 (2) Under those circumstances permitted pursuant to s. 776.013.

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

 7.2 MURDER—FIRST DEGREE and SECOND DEGREE

782.04  Murder.--  (1)(a)  The unlawful killing of a human being:  1.  When perpetrated from a premeditated design to effect the death of the person killed or any human being;

7.2 MURDER—FIRST DEGREE
§ 782.04(1)(a), Fla. Stat.

            When there will be instructions on both premeditated and felony murder, the following explanatory paragraph should be read to the jury.
            There are two ways in which a person may be convicted of first degree murder.  One is known as premeditated murder and the other is known as felony murder.
            To prove the crime of First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt
1.             (Victim) is dead.
2.            The death was caused by the criminal act of (defendant).
3.            There was a premeditated killing of (victim).

            Definitions.
            An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.
            “Killing with premeditation” is killing after consciously deciding to do so.  The decision must be present in the mind at the time of the killing.  The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing.  The period of time must be long enough to allow reflection by the defendant.  The premeditated intent to kill must be formed before the killing.
            The question of premeditation is a question of fact to be determined by you from the evidence.  It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.
            Transferred intent. Give if applicable.
            If a person has a premeditated design to kill one person and in attempting to kill that person actually kills another person, the killing is premeditated.
   
7.4 MURDER—SECOND DEGREE
§ 782.04(2), Fla.Stat.

            To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:
1.             (Victim) is dead.
2.            The death was caused by the criminal act of (defendant).
3.            There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

            Definitions.
            An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.
            An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:
1.            a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2.            is done from ill will, hatred, spite, or an evil intent, and
3.            is of such a nature that the act itself indicates an indifference to human life.
            In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.
 
7.7 MANSLAUGHTER
§ 782.07, Fla. Stat.
782.07 Manslaughter;  (1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
 
To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:           
1.         (Victim) is dead.
            Give 2a, 2b, or 2c depending upon allegations and proof.
2.          a.         (Defendant) intentionally committed an act or acts that
                        caused the death of (victim).
                        b.         (Defendant) intentionally procured an act that caused
                                    the death of (victim).
  c.         The death of (victim) was caused by the culpable negligence of (defendant).

The defendant cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide:

Negligence:
Each of us has a duty to act reasonably toward others.  If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.

Justifiable Homicide:
The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing. 
   
§ 782.02, Fla. Stat.
Excusable Homicide:
          The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:
1.            When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
2.            When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
3.            When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.
 
§ 782.03, Fla. Stat.
Give only if 2a alleged and proved.
In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death.  

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