Cross posted at Working Man Radio. Please recommend this diary.
I am seeing much discussion about the Zimmerman case in the wake of my diary last week, including the video, which have posted again below. [The second video.] The relevant statute is FS 776.041, which lays out the circumstances when the so-called "stand your ground" defense is unavailable. Here is what it says:
776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
. . .
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
An interesting word in this statute is "provoked." You are not privileged to use force to defend yourself if you "provoked" the attack. What does "provoked" mean? Does it mean fighting words? "Hey you paper hangin' sumbitch . . . " Or does "provoke" require a physical assault or battery? I have not yet found a case interpreting that word, but it doesn't really matter in this case.
In this case, George Zimmerman very clearly "provoked" the affray with Trayvon Martin. Again, evidence is clear and unequivocal.
- George Zimmerman was following Trayvon Martin.
- George Zimmerman believed Trayvon Martin was a "criminal" up to know good. This is evidenced by his statement "these assholes always get away."
- Trayvon Martin was on the telephone when the affray started, making it highly unlikely he initiated the affray.
- Rachel Jeantel heard the fight start, while Martin was on the phone.
As the one who started the fight, "stand your ground" is not available to George Zimmerman, unless . . .
Such force [used by Trayvon Martin] is so great that the person [Zimmerman] reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger . . . .
In other words, you can start a fight, but if your opponent introduces deadly force, and if you have "exhausted every reasonable means to escape . . . " you may use deadly force.
At common law, and in most jurisdictions, if you start the fight, your defense is known as "imperfect self-defense" and you are guilty of manslaughter. There is a certain amount of justice to this, since the deceased would not be deceased but for the actions of the Defendant.
The Florida Statute does not say that, and a commenter on my previous diary opined that "imperfect self-defense" is not recognized in Florida. Again, I have so far, found no cases on this question. For purposes of Zimmerman's defense, I will assume that opinion to be correct and that an aggressor can walk free if his opponent introduces deadly force.
The question then becomes whether Zimmerman was subjected to . . .
Such force . . . so great that the person [Zimmerman] reasonably believes that he or she is in imminent danger of death or great bodily harm . . .
Zimmerman says Martin was smashing his head on the sidewalk, and he feared Martin would bludgeon him to death. Indeed, he quotes Martin as saying "you're going to die tonight." Presumably he articulated himself, while in what Zimmerman describes as a homicidal frenzy.
If the jury believes that, [and indeed, if it is true], Zimmerman is not guilty under Florida law.
There is substantial evidence from which the jury can conclude: 1. that George Zimmerman was not under any such "imminent danger of death or great bodily harm."
That evidence includes the following:
- Notwithstanding his claim to having his head smashed on the sidewalk, Zimmerman display no evidence of concussion or head injury.
- He did not lose consciousness.
- He suffered no nausea associated with concussion.
- He suffered no blurred vision, no impairment of motor function, no learing disability.
- He has, subsequent to the incident, displayed no evidence of concussion.
- His wounds are entirely superficial not even requiring stitches.
Add to that the fact that he is demonstrably, provably lying, as evidenced by the following.
- He says Martin punched him first . . . while talking on the phone to Rachel Jeantel.
- He says Martin jumped out of bushes . . . which bushes are not evident in any crime scene photo I have seen.
He may be lying about other matters as well, but those lies are definitive. It only takes one.
Last but not least, George Zimmerman is the party with the malice toward Martin. He believed Martin was "up to no good," and referred to him as "these assholes." He was so convinced that Martin was "up to no good" that he ignored instructions not to follow Martin.
As we now know, Martin was unarmed, was a guest of his father who lived in the neighborhood, and was up to nothing in particular, other than talking to Rachel Jeantel.
The jury has ample evidence to discount Zimmerman's story, and to conclude that George Zimmerman was a loose cannon, who started the fight, lost it, and shot Trayvon Martin in retaliation. The best conclusion they might reach from Zimmerman's point of view is that yes, Zimmerman thought his life was in danger.
But George Zimmerman was a coward, and his belief, as evidenced by his trivial injuries, was not reasonable.
Will the jury see it that way? Maybe. Maybe not. The question for those who fear a travesty is what to do in the unfortunate event that the George Zimmerman is acquitted. We will discuss that tomorrow.
And don't forget. For a good, hard hitting audio podcast, check out Working Man Radio. Available on iTunes.
Last week's video. 2000 views. Help it go viral!