Sunday, July 14, 2013

Trayvon Recourse. Civil Wrongful Death Action; Change the Law. Vote.

Recourse for Trayvon Martin, I and II.

 I. Prove Liability and Compensation (civil)  
if no Guilt and Punishment (criminal).
 
II.  Change the law.  Read the statutes. What $ greased the passage?
 
Civil versus Criminal Processes

The Trayvon Recourse is in two parts.  Trayvon Recourse I: the availability of another route to a court remedy, the civil wrongful death.  Trayvon Recourse II:  Change the law. The need for voters voting to tailor or repeal the Stand Your Ground law.  Get those voter ID's going, if you disagree with its concept and application. A third option might be a civil rights violation suit, but that is out of the hands of the family. 

Trayvon Martin. Wages of Stand Your Ground.  Here, Grief, Salzburg, Austria
 
The Trayvon Recourse I  - Wrongful Death Civil Suit
 
Trayvon Recourse I.  Use this shortcut term to describe a possible option left to survivors of a decedent in an incident where they believe a death was wrongful, even if the death will not be punished by incarcerating the one who killed, as in a criminal court with its high standard of beyond a reasonable doubt.

The Trayvon Recourse I reminds us that there is, in many states and including Florida, a civil statute to pursue other forms of justice where the criminal proceedings result in an acquital as to the criminal charges.

Not proven is a verdict in addition to guilty or not guilty, still used in Scotland, where the jury says, "Enh," and waggles its horizontal hand with closed fingers at the defense to show its suspicions; but that is not available here. See http://www.bbc.co.uk/news/uk-scotland-18632680.  

  • Differing social goals for criminal or civil actions:  Punishment vs. making the injured parties whole again.

In criminal matters, society's goal is to punish an identified perpetrator who is proven to have committed specific elements of a statute;  incarceration is a way of punishing, and execution the ultimate loss of liberty.

In civil charges, society's goal is to make the injured party, or a decedent's survivors, whole again using monetary and other non-liberty-depriving means.  It focuses on the nature of the death as still reflecting on the culpability of the defendant, the "enh" factor about the defense in the criminal case, that did not carry the day in criminal court.  That may be used to prove civil liability nonetheless.

Civil liability is proving the wrongful act of a defendant by the lesser standards of preponderance of the evidence, or it could be clear and convincing evidence, depending on the state.  Both are less than beyond reasonable doubt. The civil penalty will not be punishment: jail or probation or execution as in the criminal matter.  Penalties in civil matters can be monetary, or service, or other forms as laid out by the statute. The goal is not punishment of an identified perpetrator, but making the injured parties or a decedent's survivors whole again.

Florida's Stand Your Ground law may be a defense to a criminal action: murder or manslaughter, depending on the facts as they may or may not be proven.  Stand Your Ground may not be a defense against a civil wrongful death action.

Florida Title XLV, Negligence,

Florida Wrongful Death Statute sections -- Title XLV ss. 768:16-26:
768.19 Right of action.When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony [emphasis supplied].
History.s. 1, ch. 72-35.

Keep the standards of proof straight. In a Criminal Action, the standard of proof is high: beyond a reasonable doubt. 

 That is largely because incarceration is taken seriously, supposedly; and an accused person's liberty is at stake.  In a Civil Action, however, the standard of proof is lower:  preponderance of the evidence, or, in some cases of high state interest, clear and convincing evidence.  The defendant-person's liberty is not at stake in a civil action, only the interest of the state in making the injured person, the plaintiff or representative, whole again by money damages, etc.  Compensation for wrongful death. The statute lays out calculations.
  • Would the family prove that civil liability case? 

 Who knows.  They settled one wrongful death action but that was only against the homeowner's association, and that leaves an action, or claim, against George Zimmerman personally. Was the course of action leading to the shooting wrongful, even if not criminal? Is provoking a response against being followed, all that, wrongful?  Stay tuned.  Lawyers in Florida know all the ins and outs, and can State lawyers or private lawyers ever match the purse available to the Zimmermans?  Illusions about level playing fields do not last long, is that so?  Then again, Plan B.  Trayvon Recourse II. Change the law.
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The Trayvon Recourse II - Change the Stand your Ground law. Get out the vote
 
Is the Stand Your Ground law a kind of license to kill, subjective feeling standard.  Should all of us be required to take lesser means to avoid violence before using it, as the law once read.  Whose ground is more important than whose?  How about provocation?  All that.

Read the Statute. Title XLVI Crimes, Chapter 776, Justifiable Use of Force, and to section 3 00 the "stand your ground".  This is what George claimed as to an attack on him by Trayvon, as justifiable use of force, emphases added:

Florida Statutes Title XLVI Section 776.013(3)

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Read the whole at  http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String&URL=0700-0799/0776/Sections/0776.013.html-- 
 
So:  If this is not the way we want our society to function, removing accountability and creating no duty to retreat, to mitigate the damages, but go ahead and shoot, do this. Get the voter photo ID vans out and take those photos and vote.  Line up tents, whatever, vote for repeal or revision.  

Accountability all around.

Common sense.  Retreat can be honorable, effective, socially constructive.  The mindset of no compromise is poison in communities of mixed beliefs, customs, assumptions, including congress.

Prepare.  For everyone, find some way to beef up your own education and ability to articulate, even if the public system fails you. Value those skills. Someone's recourse may depend on your presentation.

Is that changing of laws a pipedream, because of the difficulty of unseating those in their seats?  Regardless of likelihood of success, there can be no success without voting, and may be less persuasion when speakers have little experience in speaking in public.  
 
Jury shoes. Looking ahead, and from personal experience on juries:  Our thanks to all jurors who struggled with these issues. Your statutory limits, the elements of a crime,  and your own mindsets limit your possible conclusions.  That is an issue of jury selection, not faulting you. You are given certain evidence, certain statutes, gaps in prosecution and defense, your own experience and mindsets, and these give you far less choice than outsiders would like to think. How to choose for openness?

Don't blame a jury finding according to their times, their experiences informing their interpretations.  Blame the tools at their disposal, the lack of persuasion in the evidence, if there is any blame to be found. Statutes our representatives pass in their State Game of Stools are our responsibility.  If this goes not further, envy not George Zimmerman who will always have the label, the epithet, over his head, ahead of him and behind and below, attached to him:  Trayvon's parting verbal "shot", may be all the accountability he gets.


 

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