Oklahoma Criminal Defense Blog

Trayvon Martin was shot to death in Sanford, Florida last April.  Fred Zimmerman shot him.  That much is known, but too little else is known for sure.

The shooting made national headlines because it involves the “Stand Your Ground” law that allows Floridians to use deadly force in self-defense under certain circumstances.  It also made headlines because Trayvon was African American and Zimmerman was not, and Zimmerman was not initially charged with any crime.  The African-American community and its sympathizers cried “foul.”  Eventually, even the President of the United States came down to make a statement.

Now that Zimmerman has been charged with second degree homicide by a second prosecutor appointed by the governor, the jury will have to decide most importantly what was in the mind of Zimmerman just when he pulled the trigger.  Intent and state of mind are always proved or disproved by circumstantial evidence, and ultimately by arguments about the tiniest details.  The problem in this case is that a lot of details were lost due to the haphazard investigation by the small-town police force.

Zimmerman told police he thought Martin, 17 yrs old, was an intruder in his gated community.  Investigation has shown he was not an intruder.  Martin was a guest at the Retreat at Twin Lakes and his girlfriend was exchanging text messages just before he was shot. Most critically, there were no witnesses to the beginning of the fight between the two, the fight ended with Martin’s getting shot to death and Zimmerman receiving a broken nose and lacerations on the back of his head.  Witnesses saw the two fighting and heard one of them crying, “help,” but it’s uncertain which of them cried out.

Police interviewed Zimmerman only 15 minutes before concluding the shooting was justified.  They never looked for his car, the location of which might have given some perspective on how far he walked to Martin.

Also significant, as reported from the first, was the fact that Zimmerman followed Martin and reported his following to the 9-11 call center.  When Zimmerman made this call, the 9-11 operator told Zimmerman to get back in his car, not to confront Martin.  It is this fact, that Zimmerman disregarded the 9-11 dispatcher, that Martin sympathizers claim makes Zimmerman an aggressor and therefore guilty of causing a confrontation and of killing Martin unnecessarily.  Zimmerman sympathizers claim that a 9-11 dispatcher has no authority to give any directions or legal advice, and that Zimmerman simply continued to follow Martin until Martin attacked Zimmerman.

That would be the nub of the case if Zimmerman were facing a jury in Oklahoma.  The jury would be given an instruction of law as follows: “ A person is an aggressor when that person by his/her wrongful acts provokes, brings about, or continues an altercation.” The instruction also provides the following additional language where appropriate: “The use of words alone cannot make a person an aggressor.”  OUJI-CR 8-53:  Defense of Self-defense – Aggressor Defined.
The jury in Oklahoma would also be given an instruction of law that provides:
“A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the viewpoint of the defendant, would reasonably have believed that he/she was in imminent danger of death or great bodily harm.”  OUJI-CR 8-46: Defense of Self-defense – Justifiable Use of Deadly Force”

The Court of Criminal Appeals has further explained regarding this law:
“Fear alone does not justify a homicide, nor may a homicide be justified because of threats or insults by the decedent, nor may a defendant kill and be justified when acting simply on subjective honest belief. Rather, a homicide is justifiable when a reasonable person would have used deadly force. A homicide is also justifiable when the use of deadly force is reasonably necessary because the danger appears imminent.”  And finally, “The jury should view the circumstances from the viewpoint of the defendant.”

Moreover, if Zimmerman was not the aggressor (as defined above), he would have no duty to retreat in Oklahoma.  “A person who (was not the aggressor)/(did not provoke another with intent to cause an altercation)/(did not voluntarily enter into mutual combat) has no duty to retreat, but may stand firm and use the right of self-defense.”  (OUJI-CR-8-52)

When this case finally goes to trial in Florida, it will be difficult for observers to follow the evidence in the media because the smallest details in evidence can be significant, and the contexts of those details matter a lot.  It requires considerable time and patience to present all that is necessary for a full understanding of those details and those contexts, and headline news does not have that patience nor give that time. This is one of the reasons trial judges warn juries not to read or listen to news reports of the case they are hearing.

The State of Illinois has abolished the death penalty.  Governor Pat Quinn signed the bill passed by the legislature in January.  At the same time, he commuted the death sentences of 167 prisoners sitting on death row.  Their sentences were commuted to life without parole.

Quinn was elected governor in 2009.  During the campaign for election, he supported the death penalty when “applied carefully and fairly.”  Only upon the announcement of his signing the bill did he reveal whether he would sign the legislature’s bill.

Governor Quinn’s own words explain his actions better than paraphrase.  He said, among other things:

As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government.  Since 1977, Illinois has seen 20 people exonerated from death row.  Seven of those were exonerated since the moratorium was imposed in 2000.  That is a record that should trouble us all.  To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice.

Since our experience has shown there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper action is to abolish it.  With our broken system, we cannot ensure justice is achieved in every case.  For the same reason, I have decided to commute the sentences of those currently on death row to natural life imprisonment, without the possibility of parole or release.

I have found no credible evidence that the death penalty has a deterrent effect on the crime of murder and that the enormous sums expended by the state in maintaining a death penalty system would be better spent preventing crime and assisting victims’ families in overcoming their pain and grief.

The debate in the legislature focused on more than a dozen death row prisoners who were found to have been wrongfully convicted, including one who was within 50 hours of execution.  Opponents of the death penalty also focused on its costs.  Legislators had help from well-known death penalty opponents like South African anti-apartheid leader Bishop Desmond Tutu and Sister Helen Prejean.  Also among them were actor Martin Sheen, whose son has saturated the airwaves lately proving how much psychological help he needs by his exaggerated denials that he needs any help, intervention, or drug rehab.

Proponents of the death penalty focus on the victims’ families, argue fairness and claim it is a deterrent.   Deterrent is an issue Governor Quinn addressed.  Clear conclusions of cause and effect in human behavior issues like this are hard to come by.   Each side insists their side is the intuitive, obvious path, but empirical proof is thin.  Criminal defense lawyers will tell you that defendants in homicide cases think they will never be caught, if they had any thoughts about any penalty at all.

Fifteen other states have abolished capital punishment.  Illinois is one of several states that have lately reconsidered the death penalty.  New Jersey abolished it in 2007.   New Mexico’s legislature abolished it in 2009, but there have been some efforts to reinstate there.  Connecticut’s legislature passed a bill last year to abolish it, but the governor vetoed the bill.

It is axiomatic when a baby is seen at a hospital emergency room.  The child has no marks or apparent injury.   The child is examined, and when they find the triad of symptoms, it is axiomatic: Child abuse.   The triad of symptoms is: subdural hemorrhaging,  retinal hemorrhaging, and swelling of the brain.  Subdural hemorraging is bleeding in a space between the skull and the brain.  Retinal hemorrhaging is bleeding at the back of the eyes.

Law enforcement describes it as “suspicion” of child abuse, but that may sound like this is just a starting position from which an investigation begins and is conducted with an open mind.   Not really.  Because law enforcement has been indoctrinated that these symptoms are almost necessarily caused by child abuse.  Any suspect who says they don’t know what caused the symptoms will be arrested and prosecuted.  Unless someone can otherwise explain those symptoms, criminal charges will be filed and any investigation is narrowed to gathering more evidence to convict, nothing else.

Since the 1980s, something called “shaken baby syndrome” came into medical literature ansd soon into criminal prosecution.  It arose from some experiments made on rhesus monkeys in the 1960s by a neurosurgeon named Ayub Ommaya.  He subjected the monkeys to acceleration experiments but never experimented with shaking them.  Obviously, he never experimented on children.   Nevertheless, pediatric specialists wrote papers citing that study as evidence that unexplained subdural bleeding in babies could occur without direct impact to the head and without or without visible neck injury.

Prosecutors began to call doctors to testify that shaking a baby could generate the same force as throwing a child from a second story window.  This is a very dramatic illustration to generate the jury’s anger.  But it was not true.  A neurosurgeon named Ann-Christine Duhaime published a paper that discussed her study with biomedical engineers who used infant-sized dummies for acceleration studies.  They equipped the dummies with sensors to measure the acceleration.  Shaking the dummies as hard as they could never produced the force earlier claimed.  This and subsequent experiments raised doubts in the minds of some doctors and biomedical engineers that shaking alone could cause severe brain damage or death.   However, the experiments did not rule it out since the dummies are not live children and the effects of acceleration on brain tissue are hard to model.

Some doctors are now called to testify by criminal defense lawyers to testify.  Skeptical of the “shaken baby syndrome, ” based on the later research, they believe shaking alone could in theory cause the triad of symptoms, but only if there is an injury to the neck or spinal cord.   This is a critical departure point between the prosecution experts and the defense experts.

When Audrey Edmonds was prosecuted in 1996 for the child abuse death of a child, the triad of symptoms was observed but no spinal cord injuries.  She denied ever harming the child, but the prosecution witnesses testified she had to have been the person to inflict the injuries on the child because, as she told authorities, she had care of the child and observed the child to go limp.   Robert Huntington, a forensic pathologist, was one of the prosecution witnesses testified the child had to have been injured two hours before the child collapsed.

Of course, Edmonds was convicted and sentenced to 18 years in prison.   Then, ten years later, Edmonds was granted  a hearing to determine whether she should get a new trial.  Her defense attorney called as a witness the same Robert Huntington, who had now changed his opinions and now testified he had since observed a child with subdural hemorraging and retinal bleeding yet was lucid for some time between a brain injury and collapse.   His earlier testimony had been that the collapse would necessarily be within two hours of injury.

After that observation, Huntington revisited the medical literature in the field and found research that supported the new observation.   He now believed that a lucid interval between injury and collapse is a real possibility, and he could therefore no longer precisely time the injury that caused the death of the child for whom Edmonds was convicted.   He testified he simply could not say when the injury had occurred.

Some of that newer research includes a 2001 study by British neuropathologist named Jennian Geddes.  That study found most babies with the triad of shaken-baby syndrome symptoms suffer from a lack of blood to the brain – not from a rupture of the nerve fibers of the brain.  The lack of blood is caused by oxygen deprivation.  Rupture of brain nerve fibers is immediate.  It causes an instant coma.  Oxygen deprivation, on the other hand, can have slower and subtler results.  This could explain how a baby with shaken-baby syndrome triad of symptoms could seem fussy or lethargic or stop eating or sleeping well for some time after the injury.  Even Cindy Christian, a leading proponent of the triad of symptoms alone as indicating shaken baby, conceded in a 2005 paper that, “although infrequent,” victims of fatal head injury may appear lucid for a period before death.

Audrey Edmonds was granted a new trial by the Wisconsin Court of Appeal in 2008.  The court wrote that the disagreement among physicians was a shift in medical opinion, and therefore Edmonds deserved a new trial.

Among the alternative explanations for the triad of shaken-baby syndrome are infant stroke related to an infection, such as meningitis, resulting in thrombosis.    Defense experts concede that severe retinal bleeding is far more common in cases of abuse but assert that does not mean it is never found in other circumstances.  At last year’s meeting of the American Academy of Forensic Sciences, Evan Matshes, a Canadian forensic pathologist, presented a study of 123 autopsies performed in Miami, Florida, on infants who died from natural or accidental causes or homicides.  Of those with retinal hemorrages, 53 per cent died from accidental or natural causes and 47 per cent from homicide.  Severe retinal hemorrages were found in some of those who died from accident.  Those in the homicide group were more likely to have severe retinal hemorrages, but this could be explained by factors other than abuse.  For instance, the children in the homicide group had isolated head injuries and were more likely to be resuscitated, and, thereafter, they were more likely to develop brain swelling and bleeding disorders.  Matshes concluded, “It is simply incorrect to state that severe retinal hemorrhaging is diagnostic or abuse or shaking.”   He is now investigating whether infants with subdural bleeding and brain swelling might actually have neck injuries that have not been discovered.

Patrick Barnes, a pediatric radiologist who began as a believer in the prosecution theory, even an author of a chapter of a textbook espousing the traditional prosecution theory, but converted, after much reflection and study, to the other side and sees other possible explanations for the triad of symptoms.  He testified for Audrey Edmonds in her bid for a new trial.  He says most of his colleagues in the field do not simply present the science dispassionately, that they have built their whole careers on this one issue.   One of those is Robert Block, an Oklahoma City testifying doctor and this year’s president of the American Academy of Pediatrics, who has made his name by complete commitment to the single-explanation prosecution theory without a shred of doubt.   Block was critical of Deborah Tuerkeimer, a law professor and former prosecutor, when she wrote an Op-Ed piece last September in the New York Times that warned of wrongful convictions and sought the involvement of the National Academy of Sciences to referee the dispute between the experts.   Block appears not to welcome other scientists to the debate.