Senate [American Just Us] white man convicted of attempted murder after successfully murdering black teen

Discussion in 'Community' started by Rogue_Ten, Feb 16, 2014.

  1. yankee8255 Force Ghost

    Member Since:
    May 31, 2005
    star 6
    I got that from here and here. Honestly, I was surprised by the number, I thought it was a majority that had the burden as Flrida does, several others like Ohio.

    EDIT: and I'm assuming it's different depending on whether it's a criminal or civil case.
    Last edited by yankee8255, Feb 18, 2014
  2. I Are The Internets Chosen One

    Member Since:
    Nov 20, 2012
    star 7
    God I hate Florida and their ****ed up laws.
  3. Rogue_Ten Chosen One

    Member Since:
    Aug 18, 2002
    star 7
    the real question here is what does Flo-Rida think about all this?
    Jedi Merkurian likes this.
  4. Rogue_Ten Chosen One

    Member Since:
    Aug 18, 2002
    star 7
    i legit tried to look it up but nobody seems to have asked his opinion on trayvon or this for some reason and even more strangely he seems not to have offered it
  5. GrandAdmiralJello Moderator Communitatis Litterarumque

    Manager
    Member Since:
    Nov 28, 2000
    star 10

    I only read the Volokh article, but I guess it turns on prove. The D's burden in VA is not to prove the aff D by any high standard but simply to introduce some evidence such that a reasonable doubt exists. Pretty low standard. Then the P has to rebut self-D beyond a reasonable doubt.

    So basically consistent with what you said, but with a slight evidentiary burden on the D first.


    Misa ab iPhono meo est.
  6. Mr44 VIP

    Member Since:
    May 21, 2002
    star 6
    Just something quick to point out about the general concept of "premeditation" as it acts as an enhancement or as it bumps a change up to a stricter penalty class, because I don't think the concept is being fairly described in this discussion.

    The act of premeditation has to be 1)a distinct action undertaken before the base crime and 2)it has to make the base crime more likely to occur.

    For example, let's say 2 people get into an argument at a bar. Neither know each other, and it's spontaneous conflict. The argument turns into a fight, and while draws up their fists, the other happens to grab a bottle off the bar and ends up killing the other person with it. Would that be 1st or 2nd degree murder or something even less like involuntary manslaughter?* No matter what, premeditation doesn't exist because there was no distinct action undertaken before the fight. Simply grabbing a bottle during a fight, even knowing that it could cause serious injury or death, doesn't count as premeditation. Now, if an hour prior, one of the people taped a hidden knife under their bar stool because they planned to get into a fight... Or paid their friends to pack the bar to pile on the other guy.... Those would be examples of premeditation.

    Someone mentioned the possibility of being a racist as an example of premeditation. Except simply being a racist and ending up in a fight with a minority isn't premeditation unless evidence of specific action was undertaken along with the base crime. (if someone hates all Chinese and was found with a detailed map of the Chinese cultural center with times of activities, that's evidence of premeditation) If the fight was undertaken specifically based on another person's ethnic background it could have a hate crime enhancement, but there needs to be specific proof of this as well.

    Someone else mentioned that premeditation could take place within seconds of the main crime, but I'd say that it would be almost impossible to prove in court. I suppose if two people were fighting, and there were a couple of seconds of a break in the fighting and one of the subjects was thrown a weapon that the other person didn't see, and which they hid in his waistband knowing that the fight is going to continue, that might be an example of premeditation within seconds of the main act. But again, once the main event has started, premeditation goes out the window and you can't charge for it.

    *= My answer to this would be involuntary manslaughter, because hitting the other person with a beer bottle is dangerous and reckless even as it was the cause of their death. It might, and I mean might, reach the level of 2nd degree murder because there is no legal justification to get into a bar fight in the first place but this is iffy as far as trial outcomes go because both people were involved in the fight. There would be no way it would ever reach 1st degree murder, and it would be overreach to bring such charges.
  7. yankee8255 Force Ghost

    Member Since:
    May 31, 2005
    star 6
    Overall very good points, @Mr44, though 2 things:

    1. I made the point about his overt racism. I wasn't saying that that would definitely bump it from 2nd to 1st, just speculating as to what a prosecutor could try to argue to make that bump given the facts of the case. No question it's a big stretch. I was more expressing my surprise that they even tried for 1st degree without bringing race into it.

    2. As to the timing, there's a legal adage that i can never rememebr ( @GrandAdmiralJello, do you remember it?) about malice aforethought and how it can be formed in the blink of an eye. But yeah, very hard to prove.
  8. Rogue_Ten Chosen One

    Member Since:
    Aug 18, 2002
    star 7
    gee i wonder what side of this debate mr44 falls- oh.
    Last edited by Rogue_Ten, Feb 19, 2014
  9. yankee8255 Force Ghost

    Member Since:
    May 31, 2005
    star 6

    Not really muchaof a debate here, @Jabba-wocky insisting that 1st degree murder was reasonable, @Ender Sai, @dp4m, @Mr44 and I saying it's pretty clearly 2nd degree not first. Hard to really comment much more without knowing how the jury voted.
  10. Ender Sai Chosen One

    Member Since:
    Feb 18, 2001
    star 9

    I think you're being unfair. 44's perspective is no different to mine and dp's. Nobody is a fan of the outcome or suggesting the law in Florida is ideal. We are merely concerned that a specific charge was laid seemingly in excess of what the facts of the case supported - namely, proving mens rea is very difficult in many cases and in this one, seemingly impossible because of the standard of proof. I'm the only one who suggested it was political so far, with respect of overcompensating for the Zimmerman result.
    Jedi Merkurian likes this.
  11. Rogue_Ten Chosen One

    Member Since:
    Aug 18, 2002
    star 7
    i think that's a little premature of you to state
    Last edited by Rogue_Ten, Feb 19, 2014
  12. yankee8255 Force Ghost

    Member Since:
    May 31, 2005
    star 6

    Not so much overcompensation for Zimmerman. The prosecutor has a track record of overcharging that was highlighted early on when she took over the Zimmerman case. Many thought she overcharged in that case as well, thinking she might have had a better chance of convicting Zimmerman of manslaughter/negligent homicide. Certainly political, though.
    Jedi Merkurian likes this.
  13. Jabba-wocky Chosen One

    Member Since:
    May 4, 2003
    star 8
    We will have our answers very soon now. Jurors are beginning to give public interviews.

    Apparently, the initial vote count was 10-2 in favor of a conviction.* The other 2 votes were not in favor of second degree murder, but in favor of acquittal by reason of self-defense. The juror who gave the interview cited Dunn's multiple inconsistencies between formal testimony and previous interviews or other eyewitness testimony in causing them to disbelieve his testimony and accept the prosecution's theory of the case. The final vote was 9-3 in favor of conviction.

    Does this change anyone's perception of what happened, or the appropriateness of the charges?

    *As the interview in whole is embargoed until the airing date, this clip does not explicitly say what level of charge the jury was in favor of. However, initial vote or poll is most always on the charges as the prosecution has presented them, just to get a rough idea of where everyone stands. That would strongly suggest these were votes in favor of a conviction on first degree murder.
    Last edited by Jabba-wocky, Feb 19, 2014
  14. yankee8255 Force Ghost

    Member Since:
    May 31, 2005
    star 6
    Well, that gives a pretty good look at where the jurors lined up. Astounding that two to three completely bought his self-defense theory, and yet voted to convict him of attempted murder of the other three.

    EDIT: To answer your question, though, no it doesn't change my view on the appropriateness of the charges. It just leaves me questioning what those three jurors were thinking.
    Last edited by yankee8255, Feb 19, 2014
    epic and Jedi Merkurian like this.
  15. GrandAdmiralJello Moderator Communitatis Litterarumque

    Manager
    Member Since:
    Nov 28, 2000
    star 10
    @Mr44 I dunno I think a bar fight could be a classic case of voluntary manslaughter as a heat of passion offense. Could also be second degree as you note. Involuntary would be a harder case because it's not just criminal negligence: intent to maim or injure is good enough.

    But as yank notes, premeditation is simply a conscious prior decision to kill. It's not preparation: lying in wait and/or prep work is simply good evidence of premeditation since it's hard to prove beyond a reasonable doubt that somebody resolved to murder in the blink of an eye.


    Misa ab iPhono meo est.
  16. yankee8255 Force Ghost

    Member Since:
    May 31, 2005
    star 6
    @Jabba-wocky

    One other thing that interview doesn't change for me: my belief that the focus on SYG is, as in the Zimmerman case, rather misplaced. Three of the jurors bought, to some degree, Dunn's story that he saw a gun pointed at him. Except in very limited circumstances (e.g. someone threatening to shoot you unless you leave), you are under no duty to retreat in that case, as it is reasonable to believe the person will shoot you as you're trying to retreat.

    I canÄt for the life of me understand how they believed him, though. Zimmerman actually had physical evidence (cuts on the back of his head) and witness testimony backing up at least part of his story. Dunn had nothing but his own assertion, while the testimony of his girlfriend that he never mentioned a gun contradicting his assertion.
    Jedi Merkurian likes this.
  17. Mr44 VIP

    Member Since:
    May 21, 2002
    star 6
    Jello, I was referring more to what could be proven in court, and/or what evidence even supports charges being brought in the first place. It's the crux of the concept of prosecution- overreach.

    If you and Yank want to note that premeditation is simply a conscious prior decision to kill, you wouldn't be incorrect. I suppose under the book definition of the concept it would make any action that the person finally carries out "premeditated..." But that's simply the textbook definition alone. Because simply wanting to kill someone does not meet the legal burden of proof to bump up charges to the next penalty class or to enhance existing ones. Sure, technically, someone could want to kill another person for 20 years. But if they don't tell anyone or take steps to actually make it happen before the fact, then there is nothing to prove and nothing to present as evidence for the enhanced penalty. Any lawyer could speculate all they want---"Oh, I'm quite sure the defendant wanted to kill the victim..I mean, he thought about it before it happened.." But without any other action, speculation is all it would be.

    No law can cover every exception or example, but every law spells out the requirements that have to be met for prosecution. As a result, in every state that I can think of, the penalty classes are well defined and set for a reason. This is not unique to murder/homicide. From the lowest to the most serious. To prove misdemeanor assault, one has to have a threat and the means to carry it out. Or take drug crimes. There is mere possession and then there is distribution/sale. Possession is a lesser class than distribution, which the requirements are defined. Because you would need some sort of additional action to bring charges for the latter. A bunch of pre-packaged baggies...the witness of an actual transaction...That sort of thing. No prosecutor worth their salt would ever bring distribution charges against someone found with drugs based on a possibility that the person thought about selling them, unless there was some sort of extremely strong supporting exception.

    Moreso, I think using only the textbook definition of any law is damaging in the long term because it would give the other side an almost slam dunk for an appeal. Let's say someone actually was convicted of 1st degree murder based on the mere fact that they simply had a prior thought to kill. If that was the case, they would take the conviction to the appellate court and say "hey, I was involved in a spontaneous argument which involved people I didn't know, and the prosecution didn't raise any evidence of premeditation. I want my 1st degree murder conviction thrown out because they didn't even meet the burden of proof for the charge..." I think it would be a 99.9% guarantee to get the charges overturned, or at least sent back down because of misinstruction.
    Ender Sai likes this.
  18. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    That's not actually too hard to explain.

    The basis for the attempted murder charges came from the fact that Dunn kept firing at the Durango as it drove away. Even in a case of self-defense, you are only authorized to use lethal force while the threat is imminent. Once it is no longer imminent, you have a duty to stand down.

    Even if we accept Dunn's testimony as true, the threat was only presented by Davis, not by the other passengers. Once the threat presented by Davis was neutralized and in the absence of anything to indicate a threat from Davis' companions, Dunn lost the justifications for any further use of lethal force. His continued use of lethal force after that point supported the charges for attempted murder, separate from his self-defense claims.

    In general, I agree that the prosecutor likely overcharged in this case (much like she did in the Zimmerman/Martin case). I didn't follow all of the evidence, but from what I did see, a charge of second degree murder was likely the best fit, and had I been on the jury, I likely would have voted to convict on such a charge (unless there was some evidence that I've not seen that changes things radically).

    A few other key points. "Stand Your Ground" is actually the standard in 31 states, with the other 19 (and DC) imposing a "Duty to Retreat" in at least some circumstances. (For example, Pennsylvania imposes a DtR if the attacker hasn't displayed a weapon or the ability to produce lethal force without a weapon.) SYG isn't something new. It actually reaches all the way back to English Common Law at the time of the founding of the US, which held that a person had no legal obligation to retreat if they were not otherwise violating the law. The Castle Doctrine also derives from English Common Law of that time, following the same principle. While English Law has since changed to impose a DtR, that did not change the US legal traditions that were based on the older Common Law. While some states have since followed England's lead, the majority of the states have not.

    The major difference in Florida's SYG law is that it provides for a pretrial hearing on the subject that can dismiss the entire case (as well as preempt any civil liability). That's it. Other than that procedural matter, it is essentially a statutory implementation of the pre-existing Common Law.
  19. Mr44 VIP

    Member Since:
    May 21, 2002
    star 6
    And that's exactly it, KK.

    I think Dunn was an idiot who put himself in the situation he is now facing. But any case also has to be tried by the facts. Not speculation. Not mob/social media justice. This is what those like Rogue Ten don't seem to understand when they attempt to shoehorn people into broad camps. I loathe the idea of raising self defense claims if the person was the one who instigated the situation. If someone's music is too loud just go somewhere else. Or if it's soooo loud, call the police and have it officially addressed. But regardless of anyone's personal feelings, one also has to take the situation as it existed at the time and injecting speculation should be kept to a minimum.

    Clearly, everyone agrees that shooting at a moving car that is fleeing away from the shooter is unreasonable and criminal. And not so surprising, that's the charges that were decided beyond a reasonable doubt. But you can't simply force additional charges into a situation where the evidence doesn't support them. It cheapens the entire system, and you end up with the current debate. Dunn is already facing decades in prison because of his actions under the law. What could be added? That he'll spend 80 years in prison instead of 60? That should be the discussion instead of the media criticizing him not being convicted of one charge that probably shouldn't have been brought about in the first place.
    Ender Sai likes this.
  20. I Are The Internets Chosen One

    Member Since:
    Nov 20, 2012
    star 7
    A 20 year difference among prison sentences is not that big a deal I guess.
  21. Mr44 VIP

    Member Since:
    May 21, 2002
    star 6
    Dunn is 47 years old. How would giving him a sentence of 120, or 80 years be any different than giving him a sentence of 60 years? The issue is not that 20 more years isn't a big deal, it's how the debate is being framed. If the prosecutor aligned the charges with the situation, Dunn most likely would have been convicted of all of them. And realistically, the penalty would still be similar. Dunn could have been given a 500 year sentence, but anything beyond the first couple of decades would be pointless. But even the 1st post of this thread suggested that he somehow got off of charges, which isn't the case. Being convicted of 3/4 of charges is not a case of beating the system, especially since the single charge that isn't resolved seems to be a case of overreach, not of excusing the action or otherwise giving it a pass because of speculated factors.
    yankee8255 and Ender Sai like this.
  22. Ender Sai Chosen One

    Member Since:
    Feb 18, 2001
    star 9
    I think more importantly, to your point Mr44, that in bringing a first degree murder charge - and no, @Jabba-wocky, my view on the over-charging issue has not changed - when the situation would, prima facie, speak against premeditation ironically ensures the victim and his family are less likely to receive justice for the death.
    yankee8255 likes this.
  23. yankee8255 Force Ghost

    Member Since:
    May 31, 2005
    star 6

    OK, I didn't realize that, obviously changes things somewhat. Though I do think the the 3 jurors voting to acquit were still stretched "beyond a reasonable doubt" quite a bit too far. Not a single shred of evidence that they had a gun, and his girlfriend contradicted his story.

    Also, as I mentioned earlier, England no longer has a duty to retreat. They repealed it by statute in 1967. I think they take the better overall approach, not having an outright duty, but taking the opportunity to retreat into account in determining reasonability.
    Last edited by yankee8255, Feb 19, 2014
  24. Ender Sai Chosen One

    Member Since:
    Feb 18, 2001
    star 9
    I posted a link to a law blog on page 1 Yankee, with some interesting research about perception bias. The question is more, for me, if he could have believed he saw a gun where none existed (due to media imagery etc that negatively impacts on the image of black Americans).

    But given his status as a firearm owner surely he'd have some awareness of the threat a shotgun posed and close quarters to him in his car, and that would have suggested a more cautious path i.e. retreating.
    Last edited by Ender Sai, Feb 19, 2014
  25. yankee8255 Force Ghost

    Member Since:
    May 31, 2005
    star 6

    There's a problem with the point that blogger is trying to make, though. I believe she says that whites really see a gun when there isn't one when the other person is black, and she uses that as a basis to attack SYG. The problem is that she's not attacking SYG, but self-defense, and that's common to a vast majority of the attacks on SYG. If you reasonably saw the other person holding a gun, causing you to fear for your life, in most cases it won't be reasonable to retreat, as you have no guarantee that the person won't shoot you as your attempting to do so. So in the end it's still a question of whether your feeling threatened was reasonable, and duty to retreat is irrelevant.

    Not sure that answers your question, but it was something in the back of my mind since I read that blog.

    EDIT: Question for you -- I believe you mentioned you studied law at some point. Who caries the burden of proof for self-defense in a criminal case in England/Australia, and what is the standard. The issue is a fairly controversial one in criminal law in the US, for the obvious reason that it arguably makes it too easy to claim self-defense in cases with no witnesses, but in the end legislators and courts are loathe to do anything that would weaken the overall beyond a reasonable doubt standard. The Supreme Court has held, though, that Ohio's requirement that the defendant prove self-defense by a preponderance of the evidence does not undermine the overall reasonable doubt standard.
    Last edited by yankee8255, Feb 19, 2014