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July 11, 2013

With all evidence now in, are there any (sentencing?) lessons in the Zimmerman prosecution?

I have a strong feeling that lots of readers have lots of strong feelings about the on-going George Zimmerman trial.  As is my tendency, I do not post much (or even think much) about high-profile cases unless and until their is a conviction and a sentencing proceeding in the works.  But perhaps there are insights to draw from the Zimmerman-Martin events and subsequent prosecution even before we get any verdicts, and I thought it might be valuable to provide this opportunity for readers to express any such insights.

I will be off-line much of the day, so I hope commentors will try real hard to keep comments respectful and on-point, while also still feeling free to express genuine opinions and perspectives.

July 11, 2013 at 08:51 AM | Permalink

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Not guilty on 2nd degree murder... (Not beyond a reasonable doubt, just as much support that the 911 call was Zimmermans voice)

Guilty on Manslaughter... (What is he doing patrolling the subdivision with a loaded gun,pursued Martin after Police him told not to)

The pursuit could be what hangs him on the first charge if found guilty.

Its a sad ordeal...This is not anything like Aaron Hernadez situation, not even close.

Posted by: MidWest Guy | Jul 11, 2013 10:08:59 AM

From a purely sentencing perspective, I think this post by Florida attorney Richard Hornsby, if accurate, illustrates the problem with constructing mandatory minimums around poll-tested phrases like '10-20-life':

http://blog.richardhornsby.com/2013/07/george-zimmermans-10-20-life-problem/

Somewhat inexplicably, it appears that Zimmerman could face a substantially higher sentence if convicted of a lesser included offense like aggravated battery rather than manslaughter.

I'm generally a fan of guidelines, even mandatory ones, when I think they're constructed in a reasonable way (I prefer grid systems like in Minnesota or North Carolina because I think they implicitly compel the committee constructing the guidelines to try to rank crimes in a sensible manner), but what happens under Florida law just seems crazy.

(not that I think it will matter anyway, as my guess is acquittal)

Posted by: dsfan | Jul 11, 2013 10:38:43 AM

Is there really any lesson to be learned from a trial in which the defense lawyer's opening gambit in a trial concerning the tragic death of a teenage boy was to tell a knock-knock joke? The facts are terribly sad, and the state of the lawyering is even sadder.

Posted by: AFPD | Jul 11, 2013 10:44:28 AM

AFPD --

The defense lawyer's opening was jaw-dropping, I agree, but he's going to win anyway. My understanding of Florida law is that, once the defense has put forward evidence of self-defense, the state must prove its absence BRD. This it has failed to do.

I think there was an adequate basis, although not by much, to bring this prosecution. But it never really got off the ground. If the defense lawyer blundered in his opening, the state blundered worse with its lead -- and I guess "star" -- witness, who looked and sounded awful, and that's putting the surliness to one side. If I'm on the jury, my first thought is, "If this is the best the government has, why are we here?"

The state probably had to call her at some point, but when you lead off with a witness like that, you are asking to lose, which is what is likely to happen.

I also thought the federal DOJ's behavior leading up to this case was astounding, unprofessional and unethical, as I set out in my remarks at http://www.crimeandconsequences.com/crimblog/2013/07/new-doj-function-whipping-up-h.html

Posted by: Bill Otis | Jul 11, 2013 11:48:45 AM

I think there was an adequate basis, although not by much, to bring this prosecution.

Bill-

Do you think the basis was adequate for second-degree murder or for manslaughter? It seems to me that part of the reason the prosecution appears to have gone off the rails (and who knows, the jury might well convict, though like you I doubt it) is that they have tried to construct a (to me) very thin argument that Zimmerman "profiled" Martin as a criminal (despite the fact that second-degree murder is generally committed by someone who knows the victim http://lawofselfdefense.com/law_case/light-v-state-841-so-2d-623-fl-ct-app-2003/ ) rather than the (again, to me) vastly more plausible argument that a spontaneous fight broke out and Zimmerman's response was disproportionate to the threat, which feels much more like a manslaughter case.

Posted by: dsfan | Jul 11, 2013 12:13:42 PM

I appreciate the discussion and would not be surprised with most any of the possible verdicts. I think some had a personal reaction to the facts but as a matter of law, it seemed to me an uphill battle. But, manslaughter might work.

Posted by: Joe | Jul 11, 2013 12:28:16 PM

I may be wrong, but based on the evidence presented I don't see manslaughter as a valid conviction by law. Self defense is a complete defense. If the jury believes, or I should say if the prosecution hasn't disproven BRD, that Zimmerman's account is correct then he is not guilty of anything. If they don't then it's 2nd degree murder. I don't know where the legal hook comes in to get a true manslaughter conviction. If that is the ultimate result it reeks like a compromise by the jury. We think he did something but not sure what, so here you go, everyone's happy(ish).

Posted by: Matt | Jul 11, 2013 1:46:09 PM

Bill, I don't understand how the documents provided to the Daily Caller (hardly an unbiased news source, BTW) show anything to support your charge that CRS was there to "whip up hate" against Zimmerman. The records show that CRS went to Florida to provide support and assistance to the city in managing protests. Do you have any evidence for your charge that DOJ was "whipping up hate" besides this?

What did the CRS officials actually do while in Florida? Do you even have any idea?

Posted by: vachesacree | Jul 11, 2013 1:52:37 PM

vachesacree --

I am well aware that CRS wants to whitewash, with vague and meaningless boilerplate, what it was actually up to. You have to be somewhere beyond naïve to think that smoothing the path for Al Sharpton is done to "ease racial tensions." Sharpton, a frequent guest at Obama's White House, has made a career of whipping up racial hatred, which is exactly what he's been doing here, with CRS assistance.

It doesn't make any difference what CRS officials personally did; they're easily shrewd enough to facilitate others, like Big Al, doing their dirty work for them. It's the oldest trick in Washington.

Finally, if a Republican administration smoothed the way for the Aryan Brotherhood to put on street demonstrations in order to promote the prosecution of OJ Simpson, you would be exploding in outrage -- and properly so. It is no proper function of a prosecutor's office, ever, to facilitate what it knows in advance is very likely to be a poisoning of the jury pool.

Posted by: Bill Otis | Jul 11, 2013 2:31:19 PM

So your answer is "no," then. You don't have any actual knowledge about what CRS did or did not do. You have a lot of unfounded allegations that you have put together and called "whipping up hate." Pot, meet kettle.

Posted by: vachesacree | Jul 11, 2013 3:16:28 PM

"reeks like a compromise by the jury"

Such is how group decision-making often tends to work. Bug or feature?

Posted by: Joe | Jul 11, 2013 3:18:11 PM

vachesacree --

"So your answer is 'no,' then."

My answer is what I wrote.

I know more about how DOJ works that you ever will. Of course if you want to contest that, feel free to give your name and professional background, as I have, including my many years at Main Justice and in the USAO, both in career and political positions, and in administrations of both parties.

I know government stonewalling when I see it. If you don't, time to take a break from your CRS-facilitated Al Shartpon rallies and wise up.

Posted by: Bill Otis | Jul 11, 2013 3:29:29 PM

Bill --

I find it fascinating that you routinely demand evidence from people on this blog who make claims contrary to your positions, but when you're challenged, your evidentiary support ranges from "I know how the DOJ works" to "I know it when I see it." Then you quickly devolve to ad hominem attacks, which you also routinely deplore when used against you.

I have no direct stake in this, and don't really care. It's just interesting to watch your particular style of debate.

For the record, I have never been to or facilitated one of the "CRS-facilitated Al Shartpon rallies" you speak of, so I wouldn't call them "mine."

Posted by: vachesacree | Jul 11, 2013 3:41:49 PM

I haven't followed the case closely but the profiling argument actually resonates with me. Fundamentally, I do not believe that one gets to claim self-defense for a situation one has instigated. That seems to me the heart of the prosecution's profiling argument. So to me, facts like whose voice it was screaming and who was on top are side-shows. You started it, no self-defense for you.

Posted by: Daniel | Jul 11, 2013 3:46:07 PM

Daniel,

I would say that the state would have to prove that Zimmerman did more than follow, or even verbally accost Martin to get there. It might be incredibly rude behavior but you do in fact have every right to go up to someone and start yelling at them to get out of your neighborhood -- even if it's not your neighborhood (setting aside fighting word doctrine, which the state would also need to prove before the following/shouting became unprotected activity).

Without some evidence of how the physical portion of their fight began I would be unable to convict in a case like this. And even with such evidence it would of course have to go against the one on trial before I could convict.

Posted by: Soronel Haetir | Jul 11, 2013 3:57:27 PM

vachesacree --

"I have no direct stake in this, and don't really care."

On that we agree.

"It's just interesting to watch your particular style of debate."

A "debate" occurs when two or more people appear in public, each of whom gives his name and background. Since you still refuse to give yours, this half-anonymous exchange is no "debate." I have never agreed to debate a person who refuses to identify himself, and thus to take responsibility for what he says.

By contrast, I have often debated experts of exceptional professional credentials, including the author of this blog (http://www.youtube.com/watch?v=KmQrGhQoE_o), Alan Dershowitz (http://ctv4.criticalmention.com/playerpage/player?shareid=121116&partnerToken=8a368b493e5d79c4013e6049475d0376&clientId=25914), Margaret Love, Stephen Bright, Natasha Minsker, Paul Butler and numerous others. You are welcome to view my "particular style of debate" as often as you wish.

"For the record, I have never been to or facilitated one of the 'CRS-facilitated Al Shartpon rallies' you speak of, so I wouldn't call them 'mine.'"

And Big Al wouldn't call his Tawana Brawley race-baiting hoax either "his" or a "hoax," but in fact it was both. My calling something what it is does not depend on the approval of those who prefer to shoot from behind the curtain.

Posted by: Bill Otis | Jul 11, 2013 4:27:22 PM

Soronel --

Correct. Daniel is wrong about the law of self defense. Being annoying, officious, racist, rude and aggressive does not give the other party the legal right to beat you to a bloody pulp. Indeed, outside the home, a private person never has the right to use deadly force except in response to his objectively reasonable fear of imminent grave bodily harm or death.

Posted by: Bill Otis | Jul 11, 2013 4:38:50 PM

Bill --

No, actually, a "debate" occurs whenever two or more people exchange differing views on a topic. A debate need be neither public, non-anonymous, nor posted to YouTube. But since you can't win on the merits (i.e., you have no evidence to support your accusations that DOJ is "whipping up hate"), you're employing a tried and true debate - sorry, "argument" - tactic to shift the focus in an attempt to draw attention away from the point. So good job! If we talk about anonymity on the Internet and what the definition of "debate" is, maybe no one will notice you still haven't produced any evidence for your claims.

Lots of people online prefer to remain anonymous, for various reasons, including commenters here like me, federalist, and TarIsQtr. Welcome to the Internet!

Posted by: vachesacree | Jul 11, 2013 4:45:20 PM

"Indeed, outside the home, a private person never has the right to use deadly force except in response to his objectively reasonable fear of imminent grave bodily harm or death."

I agree Bill. The question is how does one demonstrate an "objectively reasonable fear" especially when only one of the parties lives to tell the tale and has an obvious and indisputable self-interest in their version of events? The honest answer is that one can not.

You description of the law is a great illustration why such laws are unjust and contrary to sound public policy to begin with.

Posted by: Daniel | Jul 11, 2013 4:51:22 PM

vachesacree --

"...actually, a 'debate' occurs whenever two or more people exchange differing views on a topic."

I suspect the reason you can't get into an actual debate is that you don't know what one is. People "exchang[ing] differing views on a topic" is what happened with Zimmerman and Martin and, snippy as you are, you're nowhere near that bad. But your posts here, which have a lot to do with me and little or nothing with the Zimmerman trial, attorney performance or the law of self-defense, are not a debate. They're more an expression of your annoying attitude. Fine. Have at it. You're neither the first nor the worst.

P.S. I'm happy to know that TarlsQtr and federalist are anonymous. They forgot to mention that when I had lunch with them.

Posted by: Bill Otis | Jul 11, 2013 5:08:06 PM

Daniel --

You describe the law of self-defense as "unjust and contrary to sound public policy." I will only say that it has been in place, pretty much exactly as it is now, for a thousand years or so. That is withstanding a lot of scrutiny.

Posted by: Bill Otis | Jul 11, 2013 5:15:40 PM

Bill --

I think it's a little defensive to call someone "snippy" because he or she disagrees with you, but since we're learning about debates today, I'll cut you some slack.

You're the one that brought up DOJ's "astounding, unprofessional and unethical" behavior, so in the future, if you don't want to get off-topic, I suggest, well, not getting off-topic.

Back to the ad hominem with my "annoying attitude," huh? I'll let it go. It's as sure a sign as any that you can't support your position.

This has been fun. Let's do it again sometime.

Posted by: vachesacree | Jul 11, 2013 5:17:35 PM

Bill. No, I did not describe the law of "self defense" as you say I described it; I described a "stand your ground" law that way. Indeed, the traditional law of self-defense never recognized a "stand your ground" exception. It was a plain and simple: who started it? The party who started the altercation never got to claim self defense. Ever. Under any set of facts. Under a traditional notion of self-defense Zimmerman would be guilty as a matter of law.

Posted by: Daniel | Jul 11, 2013 5:22:26 PM

vachesacree --

"I think it's a little defensive to call someone "snippy" because he or she disagrees with you..."

But I didn't call you snippy because you disagreed with me. I called you snippy because you're snippy, as you wonderfully prove in your very next words: "...but since we're learning about debates today, I'll cut you some slack."

Ha! That's not snippy???!!! Far out!

P.S. Unfortunately, while I'm teaching (what should be) an unnecessary lesson about debates, it doesn't seem that you're learning. Sigh.

P.P.S. Either you don't know jack about how DOJ actually operates, or you're pretending not to know. Either way, I'll leave it to the rest of the board to decide for itself whether DOJ's funneling money to fuel racially loaded anti-defendant street demonstrations is ethical prosecutorial behavior.

Posted by: Bill Otis | Jul 11, 2013 5:44:33 PM

Daniel

That isn't quite true. Even if you start a fight where there is no real threat of serious bodily injury or death you can claim self defense if it was the other party who escalated it to that level. When you get into a physical altercation and that leads (allegedly) to getting your head banged repeatedly against the ground there could be a certain amount of reasonable disagreement over whether that is simply a continuation of the original fight (no self defense) or an escalation by your opponent (can claim self defense). I personally fall on the side of the former, but I can in theory see where someone saying the latter is coming from.

Posted by: Matt | Jul 11, 2013 6:16:52 PM

well matt you and bill are both wrong!

There is a reason that old joke exists!

"Can you belive it. The damn fool brought a knife to a gun fight!"

Sorry but if your stupid enough to get in my face screaming and acting like an idiot waving your arms and just being a major ass.

I have every legal right to remove you from my face. Even if that means i have to break you in half!

Sure i'd expect the individual to give the ass one warning to back off and leave me alone. After all it's done!

Posted by: rodsmith | Jul 11, 2013 8:34:36 PM

rodsmith

You are clearly confusing what you want or think the law should be with what it is. I am right about what the law is. If you don't like that's too damn bad.

Posted by: Matt | Jul 11, 2013 9:39:09 PM

The statute:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or...

*****

The defense lawyer allowed a bunch of females to judge the defendant. They will decide on the basis of the cuteness of the victim. The jury is a joke. This is lawyer malpractice. The defense lawyer failed to ask for an interlocutory appeal of every single biased adverse decisions of the vile feminist on the bench. Punish the vile feminist lawyer on the bench with ethics complaint as well. Never let your client be alone in uncertainty. All the enemies of the client must live in fear as well. The lawyer should then have demanded she recuse herself for her vile feminist bias.

If I am innocent, I want to scream that from the witness stand and explain my innocence to anyone who will listen. The judge may instruct the jury to infer nothing from the decision to not testify by the defendant, but it totally human nature to infer guilt from that decision. That tendency is likely absolutely correct. Add that stupid instruction to the list of lawyer fictitious doctrines.

The vile feminist lawyers at the DOJ, on the bench, have all conspired to reverse the decision to not prosecute by the original investigators, and drove those male leaders from their jobs. Their names should be published, and these pro-criminal lawyers must be driven from office, even prosecuted themselves.

Take home message:

You must submit to the black thug, especially if you are white male, even a Hispanic.

If you resist, your life will be destroyed.

The careers of any official supporting the resistance to criminals, especially black ones, will be terminated.

Black people are so racist and so indoctrinated into entitlement by the vile feminist lawyer that they will support a criminal over a white person killing a criminal. This is true despite their victimization 10 fold that of white people by these black criminals.

Posted by: Supremacy Claus | Jul 11, 2013 10:12:06 PM

I am having a very difficult time understanding the position of the prosecution. Putting aside the issues that led up to the fight for a moment, the evidence is pretty clear that (a) Trayvon Martin was on top of Zimmerman and pummeling him and (b) Zimmerman was lawfully in possession of his handgun and Martin could have found that handgun. Anyone in that situation, i.e., getting the crap beaten out of him and where the assailant has access to a gun (even if yours), there is without doubt a reasonable fear of great bodily harm either from the pummeling or the assailant finding the gun and using it (and by the way, isn't that what liberals always tell us--the assailant is going to get the gun and use it?)

So, in order for the Z-man to be guilty on anything, there must be evidence (beyond reasonable doubt) that he did something to lose his privilege of self-defense. And what evidence would that be--that Z-man was following Trayvon Martin--um so what? Yeah, it's creepy, but it's certainly not initiating a fight. There's no evidence that Z-man was doing anything but walking back to his car and was attacked. That may not be what happened, but there's no evidence to suggest otherwise.

So, Joe, what's the basis of manslaughter? Dislike of Zimmerman? Well, guess what? I am not jazzed about some armed guy following people in the middle of the night. But that doesn't mean that he lost his right to defend himself. What was he supposed to simply absorb the beating and hope (a) the beating wouldn't be too bad and (b) that Martin wouldn't find the gun and shoot him? If citizens have to face life in prison when someone is on top of them beating their heads against concrete and may find a gun, then the right to self-defense is seriously undermined. In reality, of course, prosecutions won't happen most of the time--but it would sure suck to be the one guy who killed the wrong assailant. Maybe the assailant is the kid of some local politician. Who knows?

These prosecutors aren't fit to be lawyers, and the judge is simply crap-tastic.

Posted by: federalist | Jul 11, 2013 11:00:36 PM

http://www.infowars.com/judge-in-zimmerman-case-pressured-by-obama-administration/

As defense lawyer, I would now demand full e-discovery on the VFL on the bench. Any ex parte communication with any federal official warrants removal, disbarment, and even a prison term.

Posted by: Supremacy Claus | Jul 12, 2013 12:36:48 AM

There are a few important lessons that may be relevant to potential sentencing.

1. The media implanted the meme that Zimmerman was doing something illegal and so the entire incident was his fault. The defense could not get a jury instruction because there is no statute that says is is not against the law to follow someone when talking to 911 about potential suspicion.

2. The statutes are supposed to be clear and concise warnings for the public so people know what is illegal. Yet it takes experienced lawyers and a judge all day to dissect and interpret to explain to the law to the jury in the instructions.

3. As Mr. Bill previously argued, stacking charges is good insurance to help a jury compromise. Since the government probably lost its charged case in chief it will welcome a compromise of manslaughter (and was even desperate enough to try for a felony murder to stack it 3 pancakes high). That may mean the defense has to fight two trials at once, one above board and the other underground since the charges change after the trial.

Posted by: George | Jul 12, 2013 2:50:25 AM

To be sure, this is all about Racial. The trial and the media and martins witness's...(my opion)

But in addition to my first post at the top. If your going to walk around a subdivision with a loaded gun.
You also need to walk from the back seat, so to say...With a gun a person tends to bve bold and come here type attitude.
No matter what the physical abilities of either are.. A gun is a huge advantage...

Therefore the person with the gun must have extra restraint and resolve.. He isn't a police officer, just a neighborhood watch type citizen.

The 911 call didn't sound good for Zimmerman..

Manslaughter: The kid had no weapon and apparently was kicking the crap out of Zimmerman. (so what)
So Zims defense is Martin could of taken the gun and shot him.. He didn't need to do that. He already
had him down and was pounding him. Zim physically was a powder puff, that walked around with a loaded gun.
I think I would kick his tail myself, if I saw him doing that.. Its intimidating, who does he think he is.

So this is the jump ball call: If he was defending his life and escapes the Murder charge, will he most likely
will slide past the manslaughter as well....for the same reason(s)

Zimmerman for sure would not Patrol my neighborhood with a loaded gun. How about yours, would you put up with it..

I do think he will be not guilty.. Hows that for being wishy washy..

Posted by: MidWest Guy | Jul 12, 2013 9:48:37 AM

Midwest Guy,

Given that most states require license holders carry any weapon so that it can not be seen at casual examination I suspect you would not have realized that he was so armed. Personally, as a legal matter, I prefer the requirements of my own state, Alaska, where a license is not required for either open or concealed carry.

Posted by: Soronel Haetir | Jul 12, 2013 10:20:30 AM

George --

"As Mr. Bill previously argued, stacking charges is good insurance to help a jury compromise."

I argued no such thing, which is why you use fiction rather than quoting me.

Posted by: Bill Otis | Jul 12, 2013 10:47:50 AM

"So, Joe, what's the basis of manslaughter? Dislike of Zimmerman?"

The very first comment suggests manslaughter is a possibility. Didn't base it on "dislike of Zimmerman," and no, I do not base it on that either. Not sure why you jumped to that the very first thing. The first comment might be right, the prosecutor and judge who allowed the charge as reasonable might be on that or other grounds. I'm agnostic.

I respect your typical clarity and ability to separate the "crap" and such among the prosecutors, judges and everything else. We shall see what happens.

Posted by: Joe | Jul 12, 2013 11:18:14 AM

Actually Matt i'm basing my statement on about 200 years of legal history in this country. Where up till recently as history goes. If you had done something like that. The individual you were doing it to would have pulled his six-shooter from his holster and filled your ass full of holes and then went and had lunch and not even the local law would have said a word!

Outside of maybe "the dumb shit asked for it"

Posted by: rodsmith | Jul 12, 2013 3:42:26 PM

Stacking.


http://sentencing.typepad.com/sentencing_law_and_policy/2009/07/is-real-fundamental-structural-change-on-the-horizon-for-the-federal-sentencing-system.html

Posted by: george | Jul 12, 2013 7:49:12 PM

To head off Mr. Bill at the pass because he could rightfully object, here is the correct link.

http://sentencing.typepad.com/sentencing_law_and_policy/2009/10/the-prisoners-plea-bargain-dilemma-.html

Posted by: george | Jul 12, 2013 8:04:57 PM

Joe, I just asked. Probably didn't come through as question-like reading it though . . . .

Kangaroo court. Are people really supposed to put their lives in the hands of a stranger like that? Riots may come, but riots are better than tyranny.

Posted by: federalist | Jul 12, 2013 10:13:10 PM

George --

You said in this thread that I had previously argued that "stacking charges is good insurance to help a jury compromise."

I told you that I had said nothing of the kind, and asked for the quote. You provided none. Instead you provide a link, from which you easily could have quoted had you wanted to. But you didn't.

Q: Why not?

A: Because the quotation in that link shows that I argued exactly the OPPOSITE of what you claim.

What I actually said (emphasis added) was: "The problem is that there isn't going to be any agreed definition of either "count-stacking" or "just." What is count-stacking in the eyes of defense counsel can be, in the eyes of the prosecutor, insurance AGAINST a compromise verdict or a partial appellate reversal."

Insurance AGAINST a jury compromise is the opposite of "insurance to help a jury compromise."

This is pretty flagrant, George. Perhaps an apology is in order.

Posted by: Bill Otis | Jul 12, 2013 10:52:42 PM

"Manslaughter: The kid had no weapon and apparently was kicking the crap out of Zimmerman. (so what)
So Zims defense is Martin could of taken the gun and shot him.. He didn't need to do that. He already
had him down and was pounding him. Zim physically was a powder puff, that walked around with a loaded gun.
I think I would kick his tail myself, if I saw him doing that.. Its intimidating, who does he think he is."

Another low-information Obama voter.

Posted by: federalist | Jul 13, 2013 7:58:35 AM

Mr. Bill, this has been, as you know, an ongoing debate between us. I think this may be the first case where you might think stacking a charge unjust. This is the definition of "against" as I interpreted your sentence.

4. a : in preparation or provision for (saving against an uncertain future)
b : as a defense or protection from (a shelter against the cold)

Your definition now implies you are against stacking charges like the manslaughter charge. One of our discussions went like this.

Mr. Otis, no lie. We disagree on the definition of stacking charges. You wrote:

The problem is that there isn't going to be any agreed definition of either "count-stacking" or "just." What is count-stacking in the eyes of defense counsel can be, in the eyes of the prosecutor, insurance against a compromise verdict or a partial appellate reversal. And what is "just" in the eyes of defense counsel will often be no sentence at all; anytime the accused goes to trial, by definition the defense's position is that no sentence whatever is warranted.

Posted by: Bill Otis | Jun 12, 2009 11:53:25 AM

Under my definition, the California State Senate quote above also stacks charges to extract a plea. Upon reading your quote again, you do not say you did that, but imply it was your duty to do so, so on the presumption you did your duty.... you did. So I revise my argument accordingly.

Nothing personal, btw.

Posted by: George | Oct 5, 2009 10:37:32 PM

To which you replied:

George --

OK, no harm, no foul. I over-reacted.

Just to set the record straight, while I APPROVE charging multiple counts corresponding to all the defendant's behavior, and do not regard that as illicit (unless the counts are duplicitious or multiplicitous), I did not PRODUCE, DRAFT OR SIGN any such indictments.

I was the head of the appellate division. I handled cases at the end of the pipeline, not the beginning. So I was not in on the drafting stage.

You probably didn't know that, or had forgotten it, so, while I was understandably indignant, I got overheated in responding to you. I should have just calmed down.

Posted by: Bill Otis | Oct 6, 2009 7:22:27 PM

To me that is arguing in favor of stacking a charge like the manslaughter charge. It's all moot now but I still believe the manslaughter charge was a stacking "for insurance". It probably usually works. Maybe I wasn't clear enough before but this is the kind of charge stacking I meant.

Posted by: George | Jul 14, 2013 3:38:50 AM

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