THROWN OUT OF COURT: Aiden Patrick (deceased 4 years old) v. Volusia County

Judge Rouse Throws Out Case Against Volusia County

SUMMARY JUDGMENT ORDER DOWNLOAD HERE ->  Aiden Patrick Case Dismissed

Two Four Year Old Children Killed in 2010 on Volusia Beaches

Before Erin Joynt was run over on Volusia beaches by a lifeguard, a pair of 4 year old children were killed on the beach.  They were run over by citizen vehicular traffic, as Volusia County has a longstanding tradition of allowing people to operate vehicles on the beach.

Aiden Patrick, the 4-year-boy struck and killed on July 18, 2010, was struck by a truck.  His parents filed a wrongful-death lawsuit against the county and driver of the truck. The suit, filed in Volusia Circuit Court, claimed that Aiden’s death was caused by the county’s negligence. The suit says the county knew the beach was dangerous and failed to take “appropriate safety measures for the safety of beachgoers” and to provide adequate police patrols.

In March 2010, Ellie Bland, a 4-year-old British girl, was killed at Daytona Beach. The pair of fatal accidents prompted Volusia officials to make some changes on the beach, including providing more signs to warn drivers of children playing and several signs to point out traffic-free zones in Volusia County.

Beach Driving Needs to be Abolished

Excerpts from my article written in the Orlando Sentinel:

Do you park on a playground? Do you drive on a football field? Normal streets have curbs and lines, crosswalks and police that enforce the rules. Hitchhikers are no longer allowed on interstates.

The line between where cars operate versus where people are allowed has gotten more distinct — except on the beaches of Volusia County. Many people have died or been seriously injured as a result.

There is something liberating about a beach, which is why so many songs have been written about the sandy shore. Even in 1939, the Florida Supreme Court recognized the beach as a special place, writing, “There is probably no custom more universal, more natural or more ancient, on the sea-coasts, not only of the Unites States, but of the world, than that bathing in the salt waters of the ocean and the enjoyment of the wholesome recreation incident thereto.”

It accordingly held that even where the beach is used as a public highway, the paramount use belongs to the public. Thinking about it just makes you want to experience “How Forever Feels,” as Kenny Chesney described it 60 years later, “Big orange ball, sinkin’ in the water. Toes in the sand, couldn’t get much hotter.”

I appreciate and often am in the position to protect heritage and understand that argument in support of beach driving. However, the true heritage in Florida is in protecting the public.

Tourism is Florida’s biggest business, with an estimated 86 million visitors in 2011. And yet, 13 women have been run over by lifeguards across the state. The public has collided with scores of others, killing several. That can’t be good for tourism.

We live in an age where attention spans have decreased vastly. Florida does not require drivers to have insurance to protect others for injuries they may cause. Texting and driving is legal. Vehicles are quieter and larger.

Despite collecting millions per year off tolls, Volusia County has failed to provide ample regulation of the lanes of traffic or even abide by its own regulation, running over several women in violation of its own rules and policies. A government can further hide behind the protections of sovereign immunity, which puts up barriers and limits on any real accountability no matter how much devastation they cause or fail to prevent. The danger and lack of safeguards are heading in a tragic direction.

The Volusia County Beach Patrol has run over six women during the last several years. Yet, it is charged with responsibility for keeping the line between the highway and playground safe? Meanwhile, at least 50 people have been injured and at least 9 have been killed over the past couple of decades, including two four-year-olds.

It’s easy to blame the parents or cite carelessness, but isn’t the beach supposed to be carefree?

The fact is, Florida leads worldwide in another unfortunate statistic — injuries and deaths by automobiles on beaches. And Volusia County is by far the standout leader and shining example of gross lack of accountability. It offers virtually no protection, virtually no accountability and Band-aid responses to the serious harm occurring on its beaches.

It is time for that tradition to end, or for Volusia County to stop the rhetoric and do more to prevent so much loss of limb and life. Empty promises and toothless policies are only going to lead to more bloodshed.

Those who sit idly by should have to experience how a different kind of “Forever Feels.” My client, Erin Joynt, will forever feel pain, hearing loss, nerve damage and facial paralysis. Her daughter may forever feel the horror of seeing her mother run over. The family of the children that died will forever feel horror no money can replace. No one is going to sing about that side of it.  No verdict will make it right.

Unless Volusia is going to adequately protect those in harm’s way, I say beach driving needs to be a thing of the past.

Red Bull Class Action Settlement – Submit a Claim Form and Get $10… next year

Red Bull LawsuitClick here to file a Claim Form online

What is a Class Action?

A class action is a lawsuit in which a person sues another party on behalf of all other people who are in a similar position. The individuals who actually bring the lawsuit are referred to as the Class Representatives, while all of the other people who are in a similar position as the Class Representatives are referred to as the Class or Class Members.

You usually see them when corporate America has gone too far, promised too much, delivered too little or had a problem with a good or service many people bought or used.

We are not affiliated with this class action lawsuit.

Me v. Red Bull?

Sometimes class actions can be a little silly or frivolous.  You can read the Complaints made against Red Bull, the energy drink here, as this one is a little of both:

Plaintiffs brought these lawsuits, alleging that Red Bull’s Marketing and labeling misrepresents both the functionality and safety of Red Bull beverages- basically over the marketing campaign saying Red Bull “gives you wings.”  Fact is- you will neither grow wings now will it is much more than little boost.  It provides no more energy than a cup of coffee or a caffeine pill, according to the lawsuit.

Red Bull denies any and all wrongdoing or liability, and maintain that its marketing and labeling have always been truthful and accurate.

Do I Receive Money?

If you have consumed a Red Bull in the last 12 years, yes.  It is on the honor system. The Settlement Class includes all persons who made at least one purchase of Red Bull products in the United States between January 1, 2002 and October 3, 2014.

How Do I Receive Money?

If you are a qualified Settlement Class Member and submit a Claim Form, you may choose to receive one of the following two benefit options:

  1. A cash reimbursement (in the form of a check) of $10.00; or
  2. Free Red Bull products (either Red Bull ® Energy Drink or Red Bull ® Sugarfree, as selected on the Claim Form) with a retail value of approximately $15.00 (the “Product Option”).

Complete Claim Form Here:

These pages haven’t been working, so you can Complete this – Long Form Notice.

And then WAIT a YEAR!

The Court will hold a hearing on May 1, 2015 at 10:00 a.m. to decide whether to approve the settlement. If the Court approves the settlement, after that there may be appeals. Payments will be distributed within 150 days after the Court grants final approval of the settlement, pending any appeals.

So it may be a year before you get your $10.  No interest.

Want More info:

wings lawsuitContact:

Energy Drink Settlement
c/o GCG
P.O. Box 35123
Seattle, WA 98124-5123

Toll-Free: 877- 495-1568
Email: energydrinksettlement@gcginc.com

 


 

We invite you to review our verdicts, our accolades and awards, and what clients have to say about us and give us a call for a free consultation where our lawyers will sit down with you personally.  John represents clients in Florida, Georgia and Alabama with passion and compassion.


 

Our Appellate Decisions and Lobbying: Changing Laws, Protecting People

Our Appellate Decisions: Changing Laws, Protecting People

appeal2After a trial is over, sometimes important issues warrant an appeal. Appeals to Florida’s courts of appeals and Supreme Court provide us with an opportunity on behalf of our current clients to fix laws that have proven unfair, ambiguous or unsafe for our community.  It can make the community safer as a whole.  Sometimes Legislators just get wording wrong or have political or conflicted motivation when drafting laws. In fact, we have been known to take cases that many would deem losing cases in order to correct what we view as unjust laws.

https://www.youtube.com/watch?v=j2XtZg3-L00

Bullying Cases

appealIn Paris Cannon v. Melisia Thomas (Aria Jewett), which can be downloaded here, we argued against bad law. The Court agreed, although it put the blame on the legislature. As we said in the above interview, children shouldn’t have to be beat up two, three or four times before finding protection under the law. (Dist. Ct. App. 1st Dist. 2014).

 

Insurance Companies Being Unfair

appeal3In Essex Ins. Co. v. Underwood, 2012 Fla. App. LEXIS 4674 (Fla. Dist. Ct. App. 5th Dist. Feb. 27, 2012), we argued against an insurance company which was denying coverage to a victim of its insured’s negligence.  Our argument is located here –

https://www.youtube.com/watch?v=pcSC55tpQnw

We won at trial, prevailed upon appeal and settled the case before a trial on damages.

 

Other cases

Other appellate cases: Boatright v. Smith, 905 So. 2d 127 (Fla. Dist. Ct. App. 1st Dist. 2005); All Fla. Pipe & Supply, Inc. v. Green, 977 So. 2d 580 (Fla. Dist. Ct. App. 1st Dist. 2008); Nall v. Burrows Interiors, Inc., 840 So. 2d 228 (Fla. Dist. Ct. App. 1st Dist. 2003).

 

Michael Dunn v. Jordan Davis

legisWe also have fought poorly written or bad laws on the Legislative level.  John has been invited to speak before the Florida Legislature to make a presentation on Stand Your Ground, civil rights and gun laws.  Working on behalf of parents such as Ron Davis and Lucia McBath, it is John’s honor to try to change laws and make people aware.

flaJohn has also attended and supported clients speaking before the U.S. Senate and other government officials.

Feet on the Ground

That is not all.  Sometimes the changes in law start with awareness and solidarity with clients on the ground.  Our team has joined families all over the county to walk with them figuratively and literally.

https://www.youtube.com/watch?v=Ek0joMC2uEM

 

 

What to expect Saturday in the Jordan Davis case?

At the close of eleven days of trial, there was a point today where it seemed we finally are near verdict.  Justice is spelled one way, but defined many different ways.  Conviction of Michael Dunn for the murder of Jordan Davis is one of the keys to justice.  Will that come tomorrow?

The jury asked a question tonight which spawned much discussion- the jury insinuated they may be a little hung up on only one of the five counts by asking, “Can we not agree on one count and reach a verdict on other counts.”  One.  We weren’t given guidance if this was ONE juror’s question or the ENTIRE jury’s.  We also weren’t given guidance if this was a question involving whether to convict or acquit or merely a disagreement as to degree of wrong.  Yet, off we go mind-reading what this question means and who and how many asked it.

Mind Reading

The most logical plausible scenario is that the jury has made some decision of guilt on charges two, three, four and five- consisting of three attempted murder charges (one for each teenager who survived) and one for merely firing his gun- four felonies.  Even Dunn said he found it hard to explain this “second volley” of shots.  In one interview, he said he stepped out several feet before firing.  In another, he ducked behind cover.  The jury asked for the video/audio from that night and likely have listened to the timing of gunshots over and over again.  The final three shots were flush in the rear of a retreating vehicle.  If that is true, attempted murder convictions may be forthcoming.

Michael Dunn will therefore serve the rest of his life in jail and two of my clients will receive partial justice. Dunn’s actions will be deemed reprehensible at law and not self defense. And yet- no one feels safe.  No one is satisfied.  If the jury draws the line at Dunn getting out of the car, it sets a dangerous precedent.  It says that words can be legally fatal.  The jury says that young black boys cannot get the benefit of the doubt against a clear liar.  The jury allows lies to substitute for reasonable doubt.  The jury calls Michael Dunn a mere “attempted murderer,” and not a “murderer.”  At least for now.

Ray of Hope

But then there was a ray of hope.  Instead of expressing deadlocked disagreement before going home, the jury said they will try again to hurdle this wall tomorrow.  They didn’t quit.  They didn’t take the easy way out.  They asked to go to bed and start fresh tomorrow.  It could take mere hours or more days, but there are people fighting for Jordan Davis in that jury room.  They aren’t giving up and taking the easy way out. Hopefully, they are discussing impact angles and weighing witness credibility, asking questions about evidence and doing what is right.

What happens next?

Assuming this question means what some think it means, before this jury can throw up its hands on Count I- the murder of Jordan Davis -there is more legal wrangling that may happen- the jury first tells the judge in some way it cannot reach a verdict as to the charge.  The jurors must look at each other and not be able to find an answer on whether Jordan Davis died from 1st Degree Murder, 2nd Degree Murder or Manslaughter or whether this was a case of self defense.

The Court cannot coerce this decision.  In an effort to prevent jury coercion by trial judges, the Florida Supreme Court crafted a jury instruction commonly referred to as an “Allen charge,” which “allows a jury to continue deliberations, even after it has announced its inability to do so, where there is a reasonable basis to believe a verdict is possible, while cautioning jurors that they should not abandon their views just to get a verdict or to accommodate the majority.”  The deadlock instruction is also referred to as a “dynamite charge” for its “ability to blow apart deadlock.”  It dates back to a decision by the U.S. Supreme Court in Allen v. United States, 164 U.S. 492 in 1896. The Allen charge embodied in Florida Standard Jury Instruction 3.06 provides:

“I know that all of you have worked hard to try to find a verdict in this case. It apparently has been impossible for you so far. Sometimes an early vote before discussion can make it hard to reach an agreement about the case later. The vote, not the discussion, might make it hard to see all sides of the case.

We are all aware that it is legally permissible for a jury to disagree. There are two things a jury can lawfully do: agree on a verdict or disagree on what the facts of the case may truly be.

There is nothing to disagree about on the law. The law is as I told you. If you have any disagreements about the law, I should clear them for you now. That should be my problem, not yours.

If you disagree over what you believe the evidence showed, then only you can resolve that conflict, if it is to be resolved.

I have only one request of you. By law, I cannot demand this of you, but I want you to go back into the jury room. Then, taking turns, tell each of the other jurors about any weakness of your own position. You should not interrupt each other or comment on each other’s views until each of you had a chance to talk. After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation of your services.

You may now retire to continue with your deliberations.”

Justice Delayed will NOT be Justice Denied

If justice doesn’t come tomorrow for Jordan Davis, specifically, it will come.  We will not let justice delayed mean justice denied.  If convicted of Courts 2 through 5, Michael Dunn will leave the court room as a 4-time convicted felon, certain to spend the rest of his life in prison.  More and more will come out about Michael Dunn and expose him for who he really is.  Much of this did not make an appearance in this case, but will in the next one.  Another trial will occur as to Count 1.  We will continue to fight.

We hope the jury sees finds the answers it needs.  Our heads are high. This jury is going through it in great detail. We cannot express enough gratitude for their sacrifice.  We pray for its resolve.

George Zimmerman Tangles with Copyright Law

George Zimmerman Tangles with Copyright Law

By

The Painting on top of the Picture…

pictureinpictureWhat is this all about?

As Tina Chen reported for ABC News,

——-

George Zimmerman, the neighborhood watch captain who was acquitted of killing teen Trayvon Martin, has been selling his artwork connected to the famous case online.  But now he’s under fire for using an Associated Press image as inspiration for one painting, without permission.

Photographer Rick Wilson says he was shocked and angered to find that his photograph of Florida prosecutor Angela Corey was “ripped off” by Zimmerman.

Wilson told ABC News that he finds the use of his photo “extremely disrespectful, if not illegal.  George Zimmerman is not a professional artist, what he is in this situation is just a scam artist,” Wilson said.

 

The AP image Wilson took has been widely distributed across the Internet and in newspapers. It was taken when prosecutor Angela Corey was announcing that she was pressing charges against Zimmerman in April 2012.  Zimmerman’s painting appears to be a duplicate of the photo, done in orange and red.

———————-

The story was also well detailed by the Orlando Sentinel.

Rick Wilson

RashadRick Wilson called me Wednesday morning, upset his image was being used for political commentary by George Zimmerman.  And now his name was associated with his scandal.  Rick is a friend who I met when he shot a series with me and NFL running back Rashad Jennings for the radio show jordanjetI hosted for a couple years called Courts & Sports.  Thereafter, Rick and I ran into each other when he shot photos of Ron Davis, Jordan Davis’ father, for Jet Magazine.

rashad5He is a very talented photographer.  He has been featured in a chapter of a book and has a long career of the photographic arts.  Read more about Rick here- http://tinyurl.com/3t3rsev.

Artists such as Rick capture a moment in time.  Often, hours of work go into establishing a shot, not to mention the enormous investment that goes into equipment and training.  Split second decisions are made during the shoot.  Finally, during production of the image, there are hundreds of personal touches that make a photo truly that artist’s image.  rashad3The courts have unquestionably upheld that a photograph is a copyright protected piece of property even if it only remains a digital image. It is owned by the artist and/or anyone for whom the artist is working.  In this case, that is the Associated Press- or AP.

Here is the official AP licensed photo.  As you can see, the AP granted rights “for editorial use only.”  The photo was from State Attorney Angela Corey’s press conference announcing second-degree murder charges against George Zimmerman on April 11, 2012.  You can purchase additional rights and uses from the AP, but Zimmerman did not.

CoreyCopy

Copyright law

Copyright law is a complicated body of law.  Many different levels of protection exist.

Copyright is automatic.  However, a photographer can register the copyrights of his/her photographs with the U.S. Copyright Office prior to the infringement (or within 3 months of the first publication of the photo). If the photographer fails to Register, a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages.  According to the law, “the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.”  Courts tabulate these damages based on normal license fees and/or industry standard licensing fees, as well as any profits the infringer made from the infringement.

It is certainly better to Register. If a photo is timely registered before an infringement, the Rights owner will be eligible to receive HEIGHTENED statutory damages of up to $150,000 for a willful infringing use.  See 17 USC §504(b) and (c).  Legal fees and costs also may be recovered from the infringer.  See 17 USC §505. The text of the law is located here- http://www.law.cornell.edu/uscode/text/17/504.

Including a copyright notice is actually not required for copyright protection, but it is a good idea.  It serves as a reminder that the work is protected, as does some restriction from the ability to “right click,” “screen grab” or otherwise “capture” the photo.  All of these measures add not only to the notice to the infringer that the photograph is protected, but show his/her efforts were deliberate misappropriation of the image from the rightful owner.

It is very important for copyright owners to take steps to protect their works, including lawsuits. Prosecution of unauthorized uses are a must in order to protect rights.  Before filing a lawsuit, there are a host of remedies, including sending cease and desist letters and otherwise trying to achieve respect of the photographer‘s copyright.

Shepard Fairey

obama_hope-300x300Before George Zimmerman killed Trayvon Martin, an AP photographer, Mannie Garcia, took a photo of then-Senator Barack Obama while at an event with actor George Clooney in 2006.  Faced with the possible landmark election of American’s first African-American President, Shepard Fairey used the photo on posters that he emblazoned with the word “Hope.”  Once caught, Fairey argued that his conduct actually popularized a photo that no one would have otherwise cared about and that his use of the mundane photo constituted “fair use” under the law. The AP determined that Fairey used Garcia’s image.

Like Rick Wilson, Garcia was a freelance photographer.  Like Rick Wilson, the AP hired Garcia to take photographs of the event where he took the misappropriated photo.  AP Images syndicates photos to nearly every paper in the country.  The AP’s news content is seen by half of the world’s population on any given day- thousands of papers, plus its plugged into by magazines, blogs and television media. The AP makes money through the granting of permissions of usages of its photos.  Once in awhile, there is an image that wins the lottery and provides awards, prestige and financial windfall. Regardless of how popular the image is, the AP is still entitled to credit and compensation.

6a00d8341c630a53ef0147e18242f8970b-500wiLike Rick Wilson’s depiction of Angela Corey, the purpose of the photo of Obama was to illustrate a news story, not for art.  Fairey did not intend to make the poster for a news story. He also did not intend parody.  Even if he did, it would have been parody of Obama, not parody of the AP photographer’s work.  Thus, it would not constitute an exception.

Fairey sued seeking an affirmative determination that his use was fair.  Many, including Fairey, argued that the Obama poster was transformative, saying “the poster that resulted was no longer a straightforward news photograph of Obama, but a stylized, blue pencil drawing that conveys an entirely different feel, a different Obama and which mimics the propaganda posters of the mid-20th century.”  The AP’s counterclaim in 2009, asserted that “[the poster does] not alter any of the distinctive characteristics that make the Obama photo so striking.” In fact, it was much more “transformative” than Mr. Zimmerman’s depiction of “Angie.”

Had Shepard Fairey paid a fee to the AP instead, he likely could have obtained permission to use the photo. Instead, contentious litigation resulted.  Ultimately, Mr. Fairey agreed that he would never use another AP photo in his work without obtaining a license from the AP.  The parties agreed to work together going forward with the Hope image and share the rights to make the posters and merchandise bearing the Hope image and to collaborate on a series of images that Fairey will create based on AP photographs.  The parties have agreed to additional financial terms which remained confidential.

A separate suit arose out of the use of the image in clothing. The AP contended the T-shirt company sold almost a quarter million pieces of clothing between March 2008 and September 2009, bearing an image that copied the Obama photo.  It also resolved.  Don Juncal, president of Obey Clothing, said: “The Associated Press has an impressive archive of work provided by talented photographers. We look forward to working with those photographers, as part of our long-standing relationship with Shepard Fairey, to produce and market apparel with the new images that will be created. We have collaborated with other photographers and artists in the past, and hope that will be a successful endeavor for all parties.”

This wasn’t the first or last time this matter has gone to the courts.  More details about this cans other cases are located here- http://lawreview.vermontlaw.edu/files/2012/02/13-Rosenfeld-Book-2-Vol.-36.pdf.

How did Zimmerman do it?

DontsueThis all goes back to a guy named Jeff Sonksen. Last year, the Seminole County Board of County Commissioners named Jeff Sonksen Seminole County’s “Artist of the Year,” largely for his work painting a 400-ft. fence of various murals. At some point, Sonksen encountered George Zimmerman and has said in media interviews that he taught Zimmerman to paint by projecting an image onto a canvas, admitting he does little “free hand.”  In fact, Sonksen has even acknowledged the legal liability of some of his own work on his Facebook page, saying about a drawing of Mickey Mouse, “Tell Disney not to sue me please.”

Unlike the Obama photo in some respects, the Zimmerman “painting” is a virtual replica of Rick’s photo. It was done by either projecting Rick’s AP photo and painting it or by printing the AP photo on canvas and then painting over it. Frankly, similar work could have been generated by overlaying layers of color via photoshop.  We won’t know exactly how he did it until someone forensically examines the paining.

What is next?

Mr. Zimmerman has been sent a letter by the AP and Mr. Wilson, asking him to stop any dissemination of this painting in any way.  The point is to stop this misappropriation and to have Mr. Zimmerman obey the copyright laws of the United States.  We will follow and support the AP in every way, while preserving Mr. Wilson’s rights, as well.  As this matter develops, we will continue to keep the public apprized.  It is a very important, landmark case for the AP and artists like Mr. Wilson.

A Few Points from a Worried Mind About Trayvon Martin and George Zimmerman (and Our Nation)

An original civil rights pioneer, Abraham Lincoln, often said “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”

We, as a country, were founded on freedom- freedom to do, say and act how we wish.  It was a system of ideals – a literal Constitution- that stemmed from oppression and longing for expression.  But that very freedom was tucked inside Pandora’s Box.  Because my free expression and your free expression (or desire to avoid my expression) may contrast. Our grandfathers may not have valued each others’ rights, but that doesn’t mean that we have to hold on to that dowry of hate.  We cannot hold on to that.  Pandora’s box of freedom is open and making everyone upset, some people crazy and dividing this nation further.  As KRS-One rapped, “Self destruction, (we)’re headed for self destruction.”

Even though some hold sacred the Constitutional Right to the violent ‘defense of self’ guaranteed by the Second Amendment, other Amendments were drafted to provide rights to women and minorities- to force peace and quality.  It means our forefathers were wrong sometimes, too.  Even Thomas Jefferson thought the Constitution of this nation should be redrafted every generation or so.  Yet, some now use those very Second Amendment guarantees to define freedom in America. Lincoln would undoubtedly define that as- “faltering.”  We cannot impinge or insult one another and use the Second Amendment to bail ourselves out of mere free or misunderstanding.  We cannot be violent mice waiting for our tail to be stepped on to teach the great elephant a lesson.

What if -and this is just a hypothetical- George Zimmerman is as much of a “wanted man” as his own family and legal counsel claim.  And what if -to continue that hypothetical- someone he considers menacing (a black child with candy, soft drink and a possible bad attitude, perhaps) comes at him in his car or in a store- fist in the air.  Can he shoot and claim he was standing his ground or was in defense of self?  And do it again?  And do it again?  Where is the line of defense of self and reason?  Ladies and gentlemen, welcome to the world where the Stand Your Ground killer is not only legal, but he (or she) is festering among us.  ‘Dexter’ could run four more seasons if the writers dare approach the laws of lethal force and Stand Your Ground in Florida.

I respectfully ask -so what- that you agree Michael Dunn was wrong to kill Jordan Davis.  It won’t bring Jordan back– a college bound kid with a more potential than Dunn ever had.  It is time to stop the faltering.  Or it is time to give up on some freedoms.  Or just to find some common thread of kindness.  We are headed towards self destruction.  I don’t need you to agree, I need you to act.

As for Zimmerman, the jury has spoken.  Yet, the jury had a -still- unanswered question before it spoke- a question I still ask -why didn’t anyone explain manslaughter?  When you drive recklessly and kill someone, it is arguably manslaughter.  When you act carelessly with a firearm, it is arguably manslaughter.  When you kill someone with the intent to simply pull the trigger, it -legally- is manslaughter.  And it was never argued.  And I don’t believe it was self defense for any of about 50 reasons located here.  The Prosecutors’ silence to omit manslaughter is only made louder by their desire to go on every talk show and justify their failures.

My only request, you have trial in less than two and a half months of a murderer who never had a hair harmed, ever called the police, who just went to his hotel and ate pizza after shooting ten times in a car, killing Jordan Davis- Because Stand Your Ground told him he could.  And this nation falters under bad attitudes and worse laws.  Get to work, please.  Justice depends on it.

It was Manslaughter All Along- Will the Jury Get it Right?

It was Manslaughter All Along- Will the Jury Get it Right?

by John M. Phillips

As I have said all along, manslaughter is the correct verdict.  I asked here- have we opened Pandora’s Box so wide that what George Zimmerman did is ACTUALLY legal and reasonable and entirely free from punishment?  I hoped not.  The jury’s question seeking explanation of “manslaughter” means they have the finger on that button.

As my dad always said, “don’t start no shit, and there won’t be none (sic).”  Let’s look at that-

Manslaughter by Act (Voluntary Manslaughter): Committing an intentional act that was neither excusable, nor justified that resulted in the death of another person.

Stated in jury instructions-

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1.    (Victim) is dead.
2.    a.    (Defendant) intentionally committed an act or acts that caused the death of (victim).

On February 26, 2012, Zimmerman did one right thing- he called police. That was the LAST thing he did correct, reasonably and with any intelligence.  If he stopped there, Trayvon Martin would be alive and George Zimmerman would be free of the criminal justice system.  But he compounded neglect of omission and commission thereafter- manslaughter.  He didn’t roll down the window to engage this young man and didn’t call out once he left his vehicle.  No.  He didn’t do or answer any of these other FIFTY issues which reveal misrepresentation upon bad decision upon- manslaughter.

On that fateful telephone call, Zimmerman identified a “black male” who he described as a “real suspicious guy,” who looked “up to no good,” who was “on drugs or something.” On the other hand, Trayvon also saw a white man who also was a real suspicious guy, who also looked up to no good, as Zimmerman stared at the black teenager while he spoke on the phone. Trayvon reacted by “coming towards” Zimmerman. Trayvon was close enough and it was clear enough for him to be identified as a teenager with a button on his shirt, Zimmerman added, “Somethings wrong with him. Yup, he’s coming to check me out, he’s got something in his hands, I don’t know what his deal is.”

Zimmerman misjudged him and thought it was something more sinister.  And Zimmerman misjudged that something was wrong with Trayvon.  But something was wrong- Trayvon had a guy staring at him, talking on the phone about him, watching him.  Trayvon didn’t run because he had every right to be there and probably wanted to get a good look at Zimmerman, just like did Trayvon.  At that point, we know George Zimmerman jumped to several wrong conclusions- a black teen was in an area he shouldn’t be- Zimmerman’s neighborhood, and he might have a weapon and was acting strange.  Yet, we know the opposite- Trayvon was unarmed and not doing anything illegal at that moment and was entirely entitled to be there.

George then revealed his impatience, “How long until you get an officer over here?” And, “These assholes they always get away.” George jumped to a conclusion and instantaneously tried and convicted Trayvon of some wrongdoing. George was gauging if he should be the neighborhood hero like he had before.  He got neighborhood fanfare last time he captured someone.  Maybe he should be the hero again and help the police, he likely thought.  “Let me capture this nuisance,” his actions spoke.

George then admitted Trayvon “ran” from this white man, who stared at him.  George thought he ran because he was guilty.  We know Trayvon spoke to a friend and ran because he was “creeped out” or scared.  Trayvon described George as a “creepy” white guy or “cracker.”  Rachel expressed concerns to Trayvon that George might be a rapist, probably further scaring the unarmed 17 year old.  Trayvon was forming his own conclusions in a world where the young black male usually loses the battle of he said / she said. Trayvon had every right to think George meant him harm.  He had every right to defend himself.  He had every right to Stand His Ground.  George clearly meant him harm- to apprehend him- a likely assault or battery… or worse.

At that point, George made his first mistake- he left his vehicle and ADMITTEDLY followed Trayvon Martin.  George admitted he was following Trayvon.  While he also said he was looking for a “street sign,” anyone who is looking for a street sign (1) off of a street, (2) in a back ally, (3) behind houses, (4) while directly walking passing one (5) by a man who had made 40-plus such complaints without a prior problem of naming an address, (6) who had gone basically door-to-door and knew the neighborhood, (7) whose best friend lived right there, might lose the credibility battle on that issue. Further, he left his vehicle with a gun- a gun without a safety and a gun with an extra “topped off” bullet pre-loaded in the chamber.  He appeared to have been running after Trayvon, as noted by the dispatcher.  All clues lead to him leaving the role of “neighborhood watchman” and becoming and actively involved “neighborhood chaseman”- one with a cocked gun.  After all, he was the captain of the “watch.”  He once noted his desire to “hunt fugitives.”  He failed to be a cop only because he had bad credit. His ambition was to be a judge and he had already convicted Trayvon Martin because he looked like a bad guy acting strange.  Each passing second, each step, heightened his culpability.

The “black male,” who was a “real suspicious guy,” who looked “up to no good,” who was “on drugs or something” was profiled by Zimmerman. This led Zimmerman to take matters into his own hands and try to seek apprehension of an innocent teen.  He even called the unidentified kid with a can of tea a “suspect” days later.  A suspect of what?  At that point, George made his second mistake- he erroneously jumped to conclusions of wrongdoing by Trayvon Martin and sought to act on them.

The police operator heard the door alarm and the sound of what appeared to be running and asked, “Are you following him?” George ADMITTED he was. “Ok, we don’t need you to do that,” the operating admonished, as he could not tell him not to under the rules of dispatchers. George said, “ok,” acknowledging this request.  At that point, George made his third mistake- he ignored the dispatcher, continuing to follow Trayvon Martin.

Despite wondering in the area he last saw Trayvon Martin for over TWO MINUTES, at no point does George say yell, identify, say or mention he is with neighborhood watch, mention the police are coming or try and engage Trayvon in discussion or try to diffuse the situation.  He keeps following, looking and trying to capture him.  At that point, George made his fourth mistake- he failed to use reasonable measures to resolve a dispute, continuing to follow Trayvon Martin without attempt at reason, escalating this matter further.  

George says he was punched in the nose at the “T-intersection.”  Trayvon’s last known whereabouts are where his phone (and phone call) were dropped- dozens of yards from the “T.”  Witnesses describe motion running away from the T, as if George was chasing or tackling Trayvon.  George said Trayvon was hiding in the bushes.  There were no bushes in the vicinity.  Even if Trayvon was making a preemptive strike, George was chasing down a teenager he thought was armed and dangerous, suspicious and on drugs. George let his adrenaline and desire to be a hero and ARMED COURAGE lead him into a HAPHAZARD PHYSICAL CONFRONTATION.

I submit Zimmerman had gun drawn.  I submit he lost control of his gun if Trayvon, indeed, made a preemptive strike. There is simply no way Trayvon Martin could have been straddling George Zimmerman and George could have pulled out his gun covered up by Trayvon’s leg and shot him.  That would not match up ballistically.  At that point, George made his fifth mistake- he was a lousy excuse for a cop and engaged in haphazard and reckless confrontation.  He tried to use his $100/month MMA and “self defense” training and hours in the gun range to be a hero when police were coming.  He failed to identify he had a weapon.  He failed to try and diffuse the situation IN ANY WAY as a grown man.  He failed to control the situation.  He failed to secure his firearm.  He failed reason.

And then he FATALLY shot Trayvon in the heart- not a warning, not a non-lethal alternative  We can argue about whether the force was reasonable, whether it was a defense of last resort, who the voice was or the lack of real injury to George Zimmerman, but all of those matters are up for debate.  If George didn’t have a gun, police would have stopped the fight.  Or the screams of neighbors would have stopped the fight. Or Zimmerman would have been knocked out cold by the kid who weighed less, had less fight training and who allegedly got the best of him.  I submit both would be alive.  But George Zimmerman was programmed and psychologically influenced by the power of being a law enforcer and member of the $162 club of gun toting Americans.  At that point, George made his sixth and final mistake- he shot and killed the black teen he called a “suspect” for days after the killing. He brought a knife to a fistfight.  He ran to trouble and had to shoot his way out of it with police seconds away…

Manslaughter-

Again, to prove manslaughter, the State must show:

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.

While I think the State can might show “spite” here to the right jury, I think this is a manslaughter case.  If the State doesn’t overdo it in closing argument, manslaughter is not only entirely possible but probable and proper.  Manslaughter by culpable negligence, a second degree felony, involves the killing of a human being where the defendant engages in:

A course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare or the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The hundreds of thousands of dollars donated to Zimmerman’s legal campaign by gun-rights proponents, the propping up of this case by the NRA and Fox News and the sheer effort taken to make this a case “for gun rights” shows exactly how important this decision is.  If Zimmerman can neglectfully run to and initiate a fight, if Zimmerman can forgo ANY use reason or debate, if Zimmerman can create a situation he must shoot his way out of, if Zimmerman can act like a bad rookie cop, if Zimmerman can be overcome by impatience and prejudicial thinking and let the power of a gun cloud his mind and it not be neglect, then we all are in trouble.

We all lose if people can let fear trump reason.  We all lose if we can let violence trump communication.  We all lose if the defense of self allows one to act carelessly, negligently, even callously and stand free to kill.  We all lose if citizens on patrol can be judge, jury and executioner because they learned it in a law book sold in a gun store or were taught it by a friend in law enforcement.  We all lose if “you aren’t going to talk to me like that” or “these assholes always get away” becomes the measure for whether you can take a life.

We all lose if we do not learn from the loss of life- no matter how much we value its substance.

Zimmerman Trial – What is a Hung Jury and Why it Might Happen?

Zimmerman Trial – What is a Hung Jury and Why it Might Happen?

by John M. Phillips

I wrote about the importance and foundation of the jury trial system here.  With that as a basis, you are hearing a lot about a “deadlocked” or “hung” jury.  This piece will explain what that is and why it is a distinct possibility here. Statistics show that hung juries cause a mistrial in 5% to 12% of the more than 200,000 felony criminal jury trials that occur in the United States each year.

The State of Florida (Trayvon Martin) versus George Zimmerman case has divided a nation.  Factions are convinced Zimmerman’s right to self defense was triggered as soon as Trayvon became a threat to his safety.  Others flip it around and say Zimmerman, by getting out of the car with a gun, threatened his own safety.  Both sides are grounded in fact and in law.  This is a close case in many ways because it contains so many issues of race, gun rights, self defense and stand your ground questions and whether reason should rule the day.  So, why shouldn’t it divide six women who come from different backgrounds?

The problem with division is a jury must reach a unanimous consensus of voting “guilty” or “not guilty” in Florida.  A few states, such as Louisiana and Oregon, have situations permitting verdicts to come down to 11-1 or 10-2 majorities in order to make a conviction for certain felonies.  However, whether in juries of 6 or 12 (reserved for capital criminal cases), Florida requires unanimity in its court verdicts.  Every person must agree and, at the end, individually own the verdict as his or her own.

When a jury is “hung up” or “deadlocked” on an issue, it therefore becomes a problem. Some might recall the screenplay, 12 Angry Men.  The setting is a courtroom in New York City, where an 18-year-old boy from a slum is on trial for allegedly stabbing his father to death. The judge instructs a jury of 12 men to decide whether the boy is guilty of murder. One juror has tickets to a basketball game, one prejudges the poor boy because of where he came from. Almost all have their reasons for a quick conviction.  One primary hold-out pulls a case from certain conviction to acquittal.

If seemingly deadlocked, according to the Florida Supreme Court, the judge may deliver additional instructions – known as an “Allen charge” – to encourage the jurors to continue to seek a verdict. The name comes from an 1896 Supreme Court case, Allen v. The United States, which found that this added encouragement was not considered coercion or forced compromise.

The official charge used in Florida includes the following clarifications:

“There are two things a jury can lawfully do: agree on a verdict or disagree on what the facts of the case may truly be. There is nothing to disagree about on the law [...] If you have any disagreements about the law, I should clear them up for you now. That should be my problem, not yours.”

The Florida Bar Association notes that a judge must read the designated Allen charge verbatim, or – if a modified version is used – it has to specify that the jurors are not obligated to reach a consensus, and they should by no means give up on their “conscientious concerns” in order to do so.  Further, in giving an Allen charge, the trial court must avoid 1) coercive deadlines; 2) threats of marathon deliberations; 3) pressure for the surrender of conscientiously held beliefs; and 4) any implication of a false duty to decide.  In Tomlinson versus State, the court held it was reversible, fundamental error to repeat a deadlock jury instruction after the jury has announced a second deadlock. There has been some exception, depending on the circumstances.

If the “12 Angry Men” were not able to agree, or if these 6 women in Sanford are not able to agree, it results in a mistrial, and the case can be retried, according to the Rules of Criminal Procedure in federal court and most states. Hung juries have been criticized for wasting significant amounts of time and money, as the trial is a “do over,” and the time spent- wasted. Hung juries are burdensome to the parties caught up in the justice system, witnesses, victims, and already crowded courts.  Hung juries allow the prosecution to benefit from an earlier “dress rehearsal” or prevent the prosecution from retrying the case because of time or money considerations or problems with witnesses.

The fact is -ANYONE- and I mean -anyone- predicting what these six women are doing or will do have no clue.  Their deliberations are anonymous and should remain anonymous and sacrosanct.  Let’s let them take their time to decide because this is a very important case to the Tracy Martin and Sybrina Fulton, to George Zimmerman, to you and me, and to this great country.