To: bentway who wrote (727319 ) 7/18/2013 11:12:06 AM From: Alighieri 1 RecommendationRecommended By tejek
Read Replies (9) | Respond to of 1580142 What You May Not Know About the Zimmerman Verdict: The Evolution of a Jury Instruction Alafair Burke Novelist, Criminal Law Professor More than 16 months after George Zimmerman killed Trayvon Martin, the images from the case are engrained. For some: a teenaged boy in a hoodie, carrying Skittles and an Arizona Iced Tea, shot by a wannabe cop who was armed with a gun and a prior history of violence. For others: a broken-nosed and bloodied neighborhood watchman trying to protect a community. The temptation to view Zimmerman's acquittal through cultural and racial lenses is nearly irresistible. To critics, the verdict is yet another reminder that we undervalue black humanity and overvalue gun rights, at least when those guns are used by some members of society against certain others. For Zimmerman's supporters, the verdict proves he is an innocent man who was charged only because of public pressure. But as I've tried to make sense of the verdict, I find myself focusing a little less on race and its complicated and enduring relationship with the criminal justice system and our attitudes about guns and self-defense, and a little more on something far less divisive: jury instructions. Why Jury Instructions Matter In our system, we leave questions of fact to a jury. But to render a verdict, a jury must know the law. For this, we rely upon jury instructions. Instructions are supposed to translate the law into lay terms that the jury can apply to the facts as they determine them. Most followers of the Zimmerman trial know that the jury was instructed about the definitions of both second-degree murder and the lesser-included offense of manslaughter. They also know that the jury was instructed about the definition of self-defense. The self-defense instruction tracked Florida's broad right to self-defense, which favored Zimmerman in three important ways: 1) A defendant is "justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself." This means that Zimmerman's shooting of Martin did not actually have to be necessary; Zimmerman simply had to have a reasonable belief that it was necessary. (This is typical of self-defense in other states.) 2) If Zimmerman "was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed [as above]." This is part of the "stand your ground" aspect of Florida law, which does not require a person to exercise reasonably safe retreat options. 3) "If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty." In some states, defendants have to prove by some level of certainty that they acted in self-defense. In Florida, the state has the burden to disprove self-defense beyond a reasonable doubt. Notice how these three parts fit together to Zimmerman's advantage. Following someone -- even if because of the most horrific racial stereotypes, even while armed, even after a police dispatcher warns one not to -- is not unlawful. And if jurors had any reasonable doubt about whether Martin "attacked" Zimmerman -- even if he did so out of fear of a strange older man who was following him for no legitimate reason -- they were instructed to acquit.How Even Floridians Lose the Right to "Stand Your Ground" Does that mean that Florida law allows a person to trigger an altercation and then use deadly force when he gets a defensive response? No. Even Florida's broad self-defense statutory scheme follows traditional self-defense limitations by prohibiting "initial aggressors" from using force provoked by their own conduct. A defendant in Florida cannot claim self-defense if he "initially provokes the use of force" against himself , unless he either withdraws from the conflict and conveys the withdrawal to the other party (the legal equivalent of "saying 'uncle'") or uses reasonable escape options to avoid death or great bodily harm (in other words, the initial aggressor has no right to stand his ground; he must retreat). Because jury deliberations are secret, and no jurors (as of this writing) have spoken publicly about deliberations, it is impossible to know the basis for the jury's acquittal. But let me explain why the verdict might have boiled down to jury instructions. The state asked the court to instruct the jury not only about the justification of self-defense, which favored Zimmerman in the ways described above, but also about its initial aggressor limitation. (View the state's argument here , beginning at 3:00.) According to the state, the jury might have concluded that Zimmerman provoked any physical response from Martin by following him. If a jury could reasonably find an instruction applicable, the instruction should be given.The defense objected to the initial aggressor instruction. (See the defense argument here .) As a factual matter, the defense argued that no evidence indicated that Zimmerman physically initiated the confrontation. As a legal matter, the defense relied on Gibbs v. State , a 2001 decision from the Fourth Division of the Florida Court of Appeals, which held that a defendant loses the right to self-defense as an initial aggressor only if he provokes the victim's use of force through either force or "threat of force." After Judge Nelson indicated that she understood the arguments on both sides, defense attorney Don West interjected, "Well, let me point out, as a matter of law, following someone on foot or by car is not against the law.... That cannot be considered provocation under the law... Force means physical force or the threat of physical force...." In conclusion, he emphasized, "It would be ERROR, and frankly, promoting miscarriage of justice, if the state were allowed to argue that to the jury." (See 3:37 here .) The state attempted to rebut the defense's argument by noting the defense's request for a separate instruction regarding the legality of following a person. Judge Nelson responded, "We're not there yet," then quickly ruled without elaboration: "The defense does not want to give [the initial aggressor exception]; the state does. The court is not going to give it."The court is not going to give it. That may have been the moment when Zimmerman got acquitted. The end result was that jurors were told only about the parts of Florida self-defense law that benefited the defendant, without knowing anything about the most relevant potential limitation.huffingtonpost.com