Dunn is Done.

In July 2013, during the trial of Florida vs. Zimmerman 1, there was a lot of confusion about just what charges George Zimmerman faced for killing Trayvon Martin. I wrote a brief recap “GZ: Murder vs Manslaughter?” to clarify the charges. In some ways history seems to be sadly repeating itself. Again an unarmed Florida teenager has been shot to death, again the killer is claiming self-defense, and again the public is understandably confused about just what charges the accused faces. The names have changed, the facts are different, but the legal issues, though not identical, are remarkably similar.

In Florida vs Dunn2, Michael David Dunn is charged with killing Jordan Russell Davis, and with firing 9 rounds from a 9mm gun into the vehicle in which Davis’ three friends escaped fatal injury. On Nov. 23, 2012 Florida prosecutors brought charges of Premeditated First Degree Murder (1 count), Attempted First Degree Murder (3 counts), and Discharging a Firearm into an Occupied Vehicle (1 count) against Michael Dunn. The State charged Michael Dunn with 5 counts via indictment, specifically:

  1. 1st Degree Murder of Jordan Davis. §782.04(1)* [*Firearms Enhancement3]
  2. Attempted 1st Degree Murder of Tevin Thompson. §§777.04,782.04(1)(a)*
  3. Attempted 1st Degree Murder of Leland Brunson. ⊥*
  4. Attempted 1st Degree Murder of Tommie Stornes. ⊥*
  5. Shooting or Throwing Deadly Missiles. §790.19

Read the actual 3 page indictment here, Florida vs. Dunn- Indictment:4Michael Dunn Indictment

But those 5 named counts are not the only charges that Michael Dunn potentially faces. According to the Florida Schedule of Lesser Included Offenses5 Florida law allows for two types of Lesser Included Offenses: Category I [Mandatory] and Category II [Discretionary]. The FLvsMD jury must consider all Mandatory Lesser Included charges, and may consider Discretionary Lesser Included charges.

So although the only mandatory lesser offenses that must be given to the FLvsGZ jury are second degree murder and manslaughter (for 1st° murder), and attempted second degree murder plus attempted voluntary manslaughter (for attempted 1st° murder), either prosecution or defense may request discretionary lessers as well.

FL vs Dunn Charges

  • Thus, while re: Jordan Davis, Florida only charged Dunn with first degree murder, FLvsMD jury could find Dunn not guilty of first degree, yet still find him guilty of the mandatory lesser included offense of either second degree murder or manslaughter.
  • Similarly, while Florida charged 3 counts of attempted first degree murder, the jury could acquit of attempted first degree, but instead convict on [1, 2, or 3 counts of] attempted second degree or attempted voluntary manslaughter.
  • For the fifth and final charge, Discharging a Firearm into an Occupied vehicle, there are no mandatory lesser included charges.

Of course, the jury could also find Dunn not guilty of all charges, or convict him on any one of several discretionary lesser included charges. | Update: Neither Prosecution nor Defense counsel requested any Discretionary Lessers at the charge conference. So only the 4 enumerated Mandatory Lessers will be presented to the jury for consideration. (Essentially, ignore the far right column on the chart above; consider only first three columns from left.)

#HTH. -EHE

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Elisabeth Epps earned her JD from the University of Virginia School of Law in 2011. Follow her, her trial coverage, and her random rants/raves about basketball, dating, and other assorted miscellany: @ElisabethEpps on Twitter.
____________________

Footnotes:

  1. State of Florida vs. George Zimmerman: SA No. 1712F04573 18th Judicial Circuit In and For Seminole County, Florida. Hereafter FLvsGZ. []
  2. …State of Florida vs. Michael David Dunn: SA No. 12CF076957 4th Judicial Circuit In and For Duval County, Florida. Hereafter FLvsMD. []
  3. ...Firearms Enhancement = Possession of a Firearm and Discharge Causing Death. FL § 775.087(1), (2)(a)3. []
  4. …Indictment retrieved via MichaelDunnTrial.com, a publication of the Duval County, FL Circuit Court. []
  5. …Information retrieved Tues. 2/12/14 via Florida State Supreme Court. A disclaimer on FL website says info may not be complete nor current. []

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Florida vs Zimmerman: why the jury got it right, and how the prosecution got it wrong.

Trayvon Martin: February 5, 1995 – February 26, 2012.

Trayvon Benjamin Martin: February 5, 1995 – February 26, 2012.

| Part I | Part II | Part III | Part IV | Part V |


Part I: Opening Statement/Introduction.

How could this happen? How did a killer walk away as a free man after murdering an unarmed boy? Why was the verdict not a conviction? What was this jury thinking? After George Zimmerman was found Not Guilty of any criminal liability for killing Trayvon Martin (Florida vs. Zimmerman1), the disbelief seemed nearly universal. But to many who carefully watched the trial, the better question was: How could a jury not acquit? Given the inexcusably poor job by the state of Florida, coupled with the thorough zealous advocacy by Zimmerman’s defense team, how could reasonable jurors do anything else but acquit Zimmerman?

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  1. State of Florida vs. George Zimmerman: SA No. 1712F04573 18th Judicial Circuit In and For Seminole County, Florida. Hereafter FLvsGZ. []

Zimmerman Verdict: Murder vs. Manslaughter?

QUESTION: What crime(s) could George Zimmerman be convicted of for killing Trayvon Martin?
ANSWER: In Florida vs. Zimmerman1, the jury could do 1 of 3 things:

  1. Acquit- Not Guilty of all charges.
  2. Convict- of either 2° Murder or Manslaughter.2
  3. Convict- of a Discretionary Lesser, i.e. 3° felony murder, assault, battery, etc.3

On April 11, 2012 via a one page charging document, Florida charged George Zimmerman with one count: Murder in the Second Degree, for the Feb. 26, 2012 shooting death of Trayvon Martin:
FL vs GZ: Charging Document

While Florida only specifically charged second degree murder, FLvsGZ jury has more options than simply acquitting or convicting of second degree. The six-member jury could find Zimmerman not guilty of second degree, yet still find him guilty of the mandatory lesser included offense of manslaughter, or could convict on any one of several discretionary lesser included charges.

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  1. State of Florida vs. George Zimmerman: SA No. 1712F04573 18th Judicial Circuit In and For Seminole County, Florida. Hereafter FLvsGZ. []
  2. …Second Degree Murder- as explicitly charged, or Manslaughter: as presumptively charged, via Mandatory Lesser Included Offense. []
  3. …In Florida, there are two types of Lesser Included Offenses: Category I Lesser Offenses [Mandatory] and Category II Lesser Offenses [Discretionary]. []

In Defense of Don West.

Kids. If you have them, you’ve been embarrassed by them; if you’ve raised them, they’ve disappointed you.1 Though all of us lucky enough to call ourselves parents have been embarrassed and disappointed by actions of our children, few amongst us have the misfortune of being so publicly embarrassed and disappointed as Don West2 must have been on Fri. June 28, 2013, on the 5th day of Florida vs. Zimmerman3.

While Mr. West should have been breathing a slight sigh of relief after three straight prosecution witnesses4 went far better for the defense than could have been expected, and preparing sans familial distraction for week two of trial, he was instead briefly sidelined by the antics of his well-meaning but misguided 23-year-old daughter, Molly West.

Some time during the first week of FLvsGZ, Ms. West took to Instagram to share with a few million of her closest friends a photo of herself, her sister Rachel, and their father eating soft-serve ice cream after court. Had she stopped there, we would not be discussing her (poor) judgment.

Oh my.

Unfortunately for Mr. West, his daughter did not stop at merely uploading the selfie her father’s outstretched arm reveals that he took. Instead of leaving the photo uncaptioned, or better yet leaving it offline entirely, Ms. West captioned the family photo “We beat stupidity celebration cones.” As if that insensitive moniker weren’t enough, she added hashtags #Zimmerman #Defense and #DadKilledIt5 the former an easy way for anyone to find all photos tagged about FLvsGZ; the latter a cringe-worthy gaffe.

Just a day ago the world was criticizing the public behavior, questioning the judgment6, and speculating as to the proper rearing7 of prosecution witness Rachel Jeantel [Rachel Jeantel: When Keeping It Real, Goes Wrong]. Enter Molly West: a young woman not from a marginalized community, not lacking in education, who despite all the home-training that presumably wealth and familial success would afford, demonstrated that poor judgment crosses all color and class lines.

Shame on Molly West. Intentionally or not, her post came across to many observers as callous, cruel, and utterly uncalled for. Ms. West should know better. She embarrassed herself, her family, and did a disservice to George Zimmerman.8 I was repulsed by Molly West’s poor judgment in choice of captions/hashtags, and said so immediately:

Criticism was swift and sweeping: The Root posted a misleading headline “Don West’s Faux Pas“, alternately “Don West: Daughter’s Instagram Controversy“- the latter a fair description, the former an unfair characterization. Molly West is not Don West; family or not, she is neither Mr. West’s agent nor spokesperson. It’s unconscionable that so many ostensibly thoughtful people are inexplicably incapable of separating the two.

While Ms. West’s bad judgment of course reflected poorly on her father, she should not have been deemed his representative. The Grio went beyond misleading with its inflammatory headline: “George Zimmerman’s Attorney Don West Took The Most Offensive Selfie Of All Time.” Huh? There is nothing offensive about the “selfie” itself. What is offensive is people’s inability to distinguish actions of adult children from those of their parents.

The Wests went to Chick-Fil-A, not to enjoy some leisurely celebratory multi-course meal. Whether taken during trial or not, the photo is not “offensive.” The man is not poppin’ bottles or jumpin’ on couches; he’s eating ice cream, in Florida during June FFS. Nothing in the photo itself can reasonably be construed as Mr. West “celebrating.” The only indication of “celebration” is his dim-witted daughter’s unfortunate caption. It would be utter nonsense to take an IG caption at face-value as if it were encouraged or authorized by Mr. West, as if he were even aware.

Again and again I heard the question posed: What lawyer celebrates publicly during an ongoing trial? Um, none. Which is why it’s asinine for people to think Mr. West would do so. Ask a better question: What 20-something posts something stupid on social media unbeknownst to her unwitting family or friends? Lots. See, e.g. Molly West.

Most middle-aged people don’t assume every family pic they take is going to be shared with the world… …nor do they think they have to actually TELL their kids ‘don’t post during trial.’” -Sai Grundy

So give Mr. West a break; give the man the benefit of the doubt. Does anyone with a grip on reality actually believe Mr. West was out “celebrating” in the opening days of the biggest trial of his career? Is anyone who thinks Mr. West ok’d that post even remotely familiar at all with parental dynamics of young adults vs the relative lack of savvy social media skills of the 50+ set? One wonders…

Trial is Hell. Even when your family doesn’t humiliate and disappoint you, even when your every move is not scrutinized by rabid round-the-clock media, even in the most mundane non-sensationalized settings, jury trial is harrowing on lawyers. It’s like playoffs for athletes: sleep and diet are a wreck. Nothing else matters: you barely see your family… and when you do, you don’t expect them to act recklessly. The best trial attorneys prepare for every contingency: technical difficulties, surprise witnesses, you plan and plan… but you don’t expect to have to plan for this.

Defense attorneys are already maligned as “bad guys.”9 Ms. West just made her father’s already difficult job harder; her antics could have compromised her father’s ability to do his duty to his client. Mr. West should be embarrassed too, even apologetic. But he should not be held responsible for the actions of a 23-year-old woman, even one that he raised. Still, in an abundance of deference to discretion that his daughter did not exercise, Mr. West should:

  1. Have his daughter apologize via brief written apology to the court and Mr. Zimmerman.
  2. Ensure his daughters do not return to court for the duration of the trial.
  3. Have his daughter(s) delete her/their social media accounts.10

In the wake of the avoidable brouhaha, Mr. West issued a statement that said simply, perfectly:

Sometimes we’re deeply disappointed by the things our children do. But we love them anyway, and we move on.” – Don West.

And he’s right. He should be disappointed. He should love his daughter anyway, and he- and we- should all move on. I appreciate Ms. West’s fierce loyalty and celebratory support, but next time she wants to encourage her beleaguered father she should post an inspirational photo on the family frig, not humiliate her father by exposing her poor judgment to the entire world via social media.

________

  1. …If you’re a parent and you disagree: then either you’re in denial, or just wait ’til Junior gets out of diapers. []
  2. …note that this piece is entitled “In Defense of Don West,” not “In Defense of Molly West.” []
  3. State of Florida vs. George Zimmerman: SA No. 1712F04573 18th Judicial Circuit In and For Seminole County, Florida. Hereafter: “FLvsGZ“ []
  4. …Jonathan Good, Jonathan Manalo, and an incredibly cooperative police officer whose name escapes me at the moment. []
  5. …In a private room of defense attorneys would I say one of my colleagues “killed it” after an exceptionally strong day in trial? Yes. But to post that pic + caption? NEVER. []
  6. …or lack thereof. []
  7. …again, or lack thereof. []
  8. …Hate him, support him, or- like me- have no emotional feeling about him at all, other than to hope he gets his constitutionally mandated fair trial… []
  9. …until you or you someone you love needs one, which you will. []
  10. …Some time on Fri. 6/28/13 Molly West’s Twitter account changed from public to private; by Sat. 6/29/13 Molly’s Twitter and Instagram accounts both appear to have been deleted entirely. []

Rachel Jeantel: When Keeping It Real, Goes Wrong.

2/26/13: 1 year.

It could’ve been my baby…” Hardly a day has passed since Feb. 26, 2012 that I have not looked at my only child and ached to imagine Sybrina Fulton’s pain. I have a 16-year-old son1. I am not here for the senseless slaughter of innocent black teenage boys by armed vigilantes. Period. Full Stop. I can not defend Trayvon’s death; I do not defend George Zimmerman2; and unlike many educated, intelligent, sensitive souls who watched the first week of FLvsGZ3, I will NOT defend Rachel Jeantel. STOP DEFENDING RACHEL JEANTEL.

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  1. …that’s my son and I in the green/black photo; #HoodiesUp for Trayvon, exactly one year after Trayvon Martin’s death []
  2. … Although (having earned a law degree, trained as a defense attorney, and worked for/with three of the finest public defender offices in the country) I would zealously defend George Zimmerman in a court of law given the chance, I am not- here, in the present piece- defending him at all. []
  3. State of Florida vs. George Zimmerman: SA No. 1712F04573 18th Judicial Circuit In and For Seminole County, Florida. []

[Sexist] Dime… Piece.

NEWSFLASH: Just because something makes some wo/men uncomfortable, does not make it sexist.

When Dime Magazine published its list of 22 20 “Girls on Twitter Who Know Their Basketball (and Look Great)” online, there was predictable backlash and accompanying “sexist” accusations. Just how great these “girls” look and/or just how well they know basketball is not my concern; it’s the [errant] allegation of sexism that intrigues me.

sex·ism: \ˈsek-ˌsi-zəm\ noun (via MW)
1 : prejudice1 or discrimination based on sex; especially: discrimination against women
2 : behavior, conditions, or attitudes that foster stereotypes of social roles based on sex

Today I experienced a “can’t make this stuff up” random intersection of my #OnHere and #IRL worlds colliding. Within hours of celebrating women who transcended barriers of all sorts- including gender- to excel, I find myself writing a mini-treatise on what sexism is[n't], to me.

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  1. …Prejudice. Wrote a song about it. Like to hear it? Here it goes. []

“Why I laughed when The Onion called Quvenzhané a cunt.”

I also cringed, winced, rolled my eyes and almost certainly audibly groaned, but still- I laughed:@TheOnion Tweet 2/24/13

I had just watched the entire Oscar telecast and its accompanying sideshow of live social media commentary, in which every aspect of female worth, sexuality, and beauty, were dissected mercilessly:

  • Is Anne’s dress darted, or are her nipples erect? Her boyish hair was ghastly but…
  • Halle and Charlize wore their closely-cropped ‘dos beautifully…
  • Dame Shirley Bassey was alternately a hag or a diva…
  • Jane Fonda looks great at 75- thanks to plastic surgery…
  • However old Jamie Foxx’s daughter is, we lust for her, jail-bait or not…

Then- unlike the onslaught of misogynistic mockery- out of nowhere, came this baseless, asinine, universally offensive barb slung circuitously at an adorable little girl who is most definitely not a “CUNT.” And so, I laughed!

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