Jay Gaskill is a licensed attorney who was the Public Defender of Alameda County in the San Francisco Bay Area.
Gaskill is also a registered Democrat who, despite his party ID, is my friend. LOL
It is therefore significant that, based on the trial testimonies thus far, Gaskill believes that George Zimmerman was acting in justified self-defense when he struggled with and then shot Trayvon Martin. Gaskill also believes that, given the facts, the prosecution should never filed and pursued a murder charge against Zimmerman. That the prosecution did do that suggests they’re acting from PC pressure, in a case that Obama, as the President of the United States, had unseemly and irresponsibly politicized with his incendiary remark: “If I had a son, he’d look like Trayvon.”
FOTM is grateful for Mr. Gaskill’s permission to republish his essay from his Out*lawyer’s Blog.
Legal commentary & OPINION
By Jay B. Gaskill, Attorney at Law
June 28, 2013
The evidence now unambiguously shows that, at the time of the fatal shot, Mr. Zimmerman was down; and Mr. Martin was on top of him, administering a first class beating.
The following is a reasonably accurate summary of the general law as it applies to self-defense cases –
“The circumstances under which he acted must have been such as to produce in the mind of a reasonable prudent person, similarly situated, the reasonable belief that the other person was then about to kill him or to do him serious bodily harm. In addition, the Defendant must have actually believed that he was in imminent danger of death or serious bodily harm and that deadly force must be used to repel it. If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the Defendant did not act in self-defense.”
On the face of it – and from the prosecution’s case so far – it appears that Mr. Zimmerman has a strong self-defense case right out of the box. Few prosecutors I know would – except in extremis and under relentless political pressure –file and pursue a murder charge in a case like Mr. Zimmerman’s.
If the prosecution can salvage anything from this disaster it might be a manslaughter case based on the doctrine of “imperfect self-defense”, on the notion – so far unproven – that Mr. Zimmerman provoked the struggle and then acted with unnecessary and unreasonable force when he began to lose the fight.
This probably won’t work. No evidence has surfaced that Zimmerman initiated the use of force and the legal test of his response to being pummeled is what a reasonable person would do if similarly situated.
Were it my defense case, I would argue – and this can be done very persuasively – that Mr. Zimmerman faced a deadly threat because he was carrying a firearm against a crazed opponent who could not be counted on to use restraint if he (Martin) got control of it during the struggle.
When violently attacked, there is no duty to flee or to turn the other cheek.
I know it is premature to comment, but as the facts have so far unfolded, it would appear to be a grave miscarriage of justice if Mr. Zimmerman were convicted of murder (absent some compelling new evidence, so far not even hinted at). A manslaughter conviction would be more of a misfire, than a miscarriage, a repellant sop to those fevered souls who had hoped to turn this tragedy into some kind of racial cause-celeb.
I am deeply sorry the Mr. Martin died and that Mr. Zimmerman must go through this nightmare parody of a political trial.
Or so it seems from my remote viewing platform.