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The verdict in the trial of the Zimmerman for the homicide of Trayvon Martin is an outrage. George Zimmerman killed him. George Zimmerman instigated the events which resulted in Martin's death. Unfortunately the law prevented justice in this case.

Disclaimer. There is no question the George Zimmerman killed Trayvon Martin. It is difficult to believe that Zimmerman was not motivated at least in part by racial animus. If Zimmerman had not taken the steps he did that night Trayvon Martin would be alive. The evidence included many self-serving statements by Zimmerman and in many instances he lied. Having said that, the verdict in this case was a product of the law that the jury had to deal with.

The Zimmerman trial did not appear to turn on the Florida stand your ground law. Rather, it appears to have turned on the burden of proof in the self-defense law of Florida, which is shared by all states in the nation except Ohio. Under Florida law if a defendant asserts a prima facie case of self-defense the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. Note, the defendant doesn't need to prove anything. The state must prove that the defendant did not act in self-defense. As we saw in the Zimmerman case that is an almost impossible burden on the state in a case where the victim is dead and there are no eyewitnesses.

Before getting to this self-defense issue, a few words on stand your ground. Essentially the stand your ground laws eliminate the duty to retreat that is otherwise required in cases of a confrontation outside of one's home. In the case of Florida's law, if a defendant seeks to invoke stand your ground for having injured or killed someone, the person can request a pretrial hearing at which a determination of the applicability of the law is made. If the person succeeds, there will be no trial. It is noteworthy that the general lack of a duty to retreat is not present if it is determined that the defendant was the instigator of the conflict.

There is some question as to why the Zimmerman defense did not seek a stand your ground hearing. If they were convinced they could win it is hard to see why they would not have done so since it certainly could have saved much of the expense of trial. One is left with the thought that maybe they were concerned about whether Zimmerman would be ruled to have been the aggressor, who instigated this conflict. Nevertheless, while stand your ground instructions were given in this case which made clear that Zimmerman did not have a duty to retreat, given the defenses presentation it is doubtful that it had much impact. The defense argued that he was attacked, fell to the ground, and therefore had no ability to retreat. Even if stand your ground were not applicable, there is no indication that the state was capable of presenting any evidence indicating that Zimmerman did not try to retreat. As a consequence, it would not have met its burden.

A recent Florida case, Falwell v Florida sets out the current state of Florida self defense law,

When self-defense is asserted, the defendant has the burden of producing
enough evidence to establish a prima facie case demonstrating the justifiable use of
force. . . . see Murray v. State, (holding that law does not require defendant to prove self-defense to any standard measuring assurance of truth, exigency, near certainty, or even mere probability; defendant’s only burden is to offer facts from which his resort to force could have been reasonable). Once the defendant makes a prima facie showing of self defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. . . . The burden of proving guilt beyond a reasonable doubt, including the burden of proving that the defendant did not act in self-defense, never shifts from the State to the defendant. . . . see Monsansky v. State, 33 So. 3d 756 (Fla. 1st DCA 2010) (explaining that defendant has burden to present sufficient evidence that he acted in self-defense in order to be entitled to jury instruction on issue, but presentation of such evidence does not change elements of offense at issue; rather, it merely requires state to present evidence that establishes beyond reasonable doubt that defendant did not act in self-defense); Murray, 937 So. 2d at 279 (explaining that defendant in trial for aggravated battery was not required to prove self-defense claim beyond reasonable doubt or by preponderance of evidence; rather, self-defense evidence needed merely leave jury with reasonable doubt about whether he was justified in using deadly force). (Bold added and some citations omitted.)
It is important to note that in order for this self-defense burden to shift to the prosecution the defendant only need offer a few minimal facts suggesting he acted in self-defense. As the court says the defendant is not required to "prove self-defense to any standard measuring assurance of truth, exit and see, near certainty, or even mere probability . . .."

So what did this mean in the context of the Zimmerman case? From the very beginning Zimmerman made a prima facie case for self-defense. He had injuries, however minor. And he asserted to the police initially that he had acted in self-defense. Given those bare facts, ignoring for a moment all his other statements and a few witness statements, it was the state's burden to prove "beyond a reasonable doubt" that he did not act in self-defense.

In analyzing the evidence offered a trial virtually all of the statements made by Zimmerman after the night of the shooting could have been disregarded by the jury. It was very clear that they were self-serving statements, that he had a strong motivation to lie, and that because he was caught in numerous lies his credibility was minimal. It was also reasonable for the jury to give Rachel Jeantel's testimony considerable weight. That testimony indicated that Zimmerman initiated the incident, he followed Martin, and Martin reacted with concern, if not outright fear. But her testimony ends minutes before the shooting. The testimony covering the remaining minutes is conflicting. Without going over it all, there is testimony indicating that Martin was on top of Zimmerman and contrary testimony indicating Zimmerman was on top of Martin. There is conflicting testimony as to who was screaming. There were injuries to Zimmerman and all evidence indicates that Martin was shot at close range.

If this were a case where Zimmerman had to prove beyond a reasonable doubt or even prove with a simple preponderance of the evidence that he acted in self-defense, it is not unlikely that he would have been convicted. However he didn't have to show anything. The state had to prove beyond a reasonable doubt that he did not act in self defense.

This case is about race because there is every indication that George Zimmerman would not have followed Martin that night but for his race. There is also every indication that Zimmerman was, at best, a totally irresponsible gun owner who had dreams of police glory and was prone to vigilantism. It also appears that the Sanford Police Department did not initially give this case the type of scrutiny it deserved.  It may also be possible that some of the jurors were unable to exclude race from their consideration. Having said all those things however the outcome of this case was a result of the law. Moving forward, it is time for a serious examination of the state of the law of self-defense in this country. The killing of Trayvon Martin has made that abundantly clear.

Also published at September 17, 1787

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Comment Preferences

  •  The SYG instruction was given (6+ / 0-)

    It is your opinion that the verdict was not about the SYG law, but since you were not on the jury, you do not know if the SYG instruction played any part in the decision.

    In addition, the prosecution was awful imo.

    Especially with regard to the decision to introduce Zim's statements.

    I would also disagree with your assessment that the jury HAD to find as it did.

    Like you, I think the verdict was the correct one given the case presentation, but nothing in the law precluded the jury from finding Zimmerman guilty, even of 2nd degree murder.

    Besides that, I agree with your diary.

    •  I didn't read the SYG instruction (0+ / 0-)

      but maybe missed something. I thought last year, and posted an article, that if stand your ground was used, Zimmerman would lose. There is a separate requirement for stand your ground if you are deemed the aggressor. If you are the aggressor then under stand your ground you have an affirmative duty to retreat. Based on the facts that had originally been presented, it appeared to me that Zimmerman was the aggressor and there was no indication that he had retreated.

      It is easy to say that the prosecution was terrible, and I certainly have my faults with them. I was especially troubled by them not continuing to harp on the lack of credibility in Zimmerman's statements. Clearly they had a problem with some of their key witnesses, particularly Rachel Jeantel and the coroner. Unfortunately that's all they had.

      I don't know about the use of Zimmerman's statements by the prosecutors. The threshold question to me is why they are not excludable as hearsay. They are clearly out of this court statements offered for the truth of the matter stated and thus hearsay unless covered under some exception. There must have been an exception that would have allowed for them to be introduced.  Normally statements given to the police can be introduced because they are statements against interest. That was hardly the case here.

       But there must have been some exception to the rule allowing for their admissibility. Otherwise I'm sure that the prosecution would not have introduced them and would have objected to any defense use of them. But it's been a long time since I have dealt with the rules of evidence.

      Further, affiant sayeth not.

      by Gary Norton on Mon Jul 15, 2013 at 01:20:12 PM PDT

      [ Parent ]

      •  Yeah that's not right (0+ / 0-)

        LEt me find the instruction for you.

        •  Here (6+ / 0-)

          "If George 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 that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony."

          Now some folks here at daily kos will falsely tell you that this was part of the standard jury instruction prior to SYG.

          That is false. See this.

          •  Thanks. Didn't see that. Maybe I was (0+ / 0-)

            confused since the defense seemed to take the position that Zimmerman was not in a position where he could retreat so the lack of a requirement was essentially academic.

            Given the facts of this case and the total lack of any concrete testimony as to what transpired in the last four or so minutes I'm not sure how much difference it would have made. Zimmerman could have asserted that he tried to retreat. Alternatively, even if he hadn't, the state had a difficult time showing that he didn't. That is especially true given the injuries, however slight, on the back of his head.

            You do understand that I think the verdict is outrageous. But this case really shows how difficult it is to overcome a self-defense claim with the type of evidence available in this case.

            I am totally opposed to these stand your ground laws and believe that the common-law rule is the better one. However my understanding of the current state of self-defense law is that it goes back to the 1880s. Excuse me if it appears I'm switching subjects here, but at the end of the day what we really face is a burden of proof problem.

            Further, affiant sayeth not.

            by Gary Norton on Mon Jul 15, 2013 at 01:41:03 PM PDT

            [ Parent ]

          •  That is no less speculative... (0+ / 0-)

            than saying the jury did not rely on it.

            That language is part of the standard jury instruction in cases where the defendant claims his use of deadly force was justified.

            Zimmerman never claimed he was unable to retreat and therefore did not base his defense on the right to stand your ground.

            It is therefore reasonable to conclude that the jury found he acted in self-defense, irrespective of stand your ground.

            •  That's NOW the standard instruction (2+ / 0-)
              Recommended by:
              Meteor Blades, kj in missouri

              BECAUSE of passage of the SYG law.

              It is false to say that WAS the standard jury instruction.

              IT only became a part of it because of SYG.

              Now this is interesting:

              "Zimmerman never claimed he was unable to retreat and therefore did not base his defense on the right to stand your ground."

              I think that is false. But more importantly, that contradicts your claim that there was no reliance on SYG.

              I think you misstated what you meant - you meant he said he could NOT retreat and therefore SYG was not needed.

              But the defense did not drop its request for the SYG instruction.

              They had their cake and ate it too.

              Which is perfectly fine legally.

              But it also means SYG was part of the defense.

              Was it used by the jury? Who knows. I don;t think it is reasonable to conclude anything EXCEPT that SYG was part of the case by virtue of the inclusion of the SYG instruction.

              Was it a meaningful part? Only the jury knows.

              •  I did not say there was no reliance... (0+ / 0-)

                but you can no more prove there was than I can prove there was not.

                I also said it IS part of the instruction. What WAS part of the instruction beforehand does not seem particularly relevant to me.

                The judge could have stricken the language, but judges are often loathe to do so, unilaterally, and why should the defense be held to seek its removal in the zealous representation of a client facing such charges?

                Compared to the withholding by the prosecution, I see no fault in the defendant's case at all.

                I think your semantical argument over what I meant by his not retreating is not even a quibble. If one claims SYG, then they did not, in fact, retreat. The question then becomes, could they so that the claim is validated. I did not say that he could not, which would have been assumed anyway. I simply said he did not make the claim, so the jury would more probably than not consider retreat.

                To me, the article you cited is not really worth the paper it was written on, so to speak, but seems just another effort to spread outrage.

                If the pattern instruction should be amended, that is a different matter.

                •  Seriously? You don't see a difference between... (1+ / 0-)
                  Recommended by:
                  kj in missouri
                  "The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.

                  The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force."

                  And:
                  In deciding whether George Zimmerman was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, George Zimmerman must have actually believed that the danger was real.

                  If George 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 that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.

                  Don't tell me what you believe, show me what you do and I will tell you what you believe.

                  by Meteor Blades on Mon Jul 15, 2013 at 02:45:57 PM PDT

                  [ Parent ]

                  •  What are you quoting? (0+ / 0-)

                    Not that it matters at this point.

                    It does not matter what I think, when it comes down to it, and I think there are more important issues than this.

                    These arguments are not so much about determining the facts of the matter as continuing the controversy.

                    I doubt we agree about the way race has been injected here and for what purpose.

                    •  Old jury instructions v. new jury instructions... (0+ / 0-)

                      ...If you don't think the subject is worth arguing, why have you used up 55 of your last 100 comments arguing about it?

                      Don't tell me what you believe, show me what you do and I will tell you what you believe.

                      by Meteor Blades on Mon Jul 15, 2013 at 03:24:25 PM PDT

                      [ Parent ]

                      •  I meant at the moment. (0+ / 0-)

                        And why are YOU playing gotcha games and counting comments?

                        If that is the best response you can make, which has NOTHING AT ALL to deal with the subject, it helps to show why so many others do the same thing!

                        The fact is that I have only argued that some are successfully using race for ideological and political purposes, and I think it is wrong.

                        The fact is that too many, perhaps including yourself, act as if they were present when Martin was killed, and that race was the reason.

                        •  Too many, including yourself, act as if... (0+ / 0-)

                          ...this wouldn't have turned out differently if Trayvon had been white.

                          As for my response, I answered your question and you still haven't answered mine. Let me rephrase it: Do you or do you not see a crucial difference between those two versions of jury instructions?

                          Don't tell me what you believe, show me what you do and I will tell you what you believe.

                          by Meteor Blades on Mon Jul 15, 2013 at 03:54:02 PM PDT

                          [ Parent ]

                          •  Are you saying that if he was white... (0+ / 0-)

                            there would have been a manslaughter conviction?

                            I think it is less likely because then the whole racial aspect would have been removed.

                            Indeed, it's likely that the prosecutor would have made the same initial determination.

                            No one wins here. It is a mistake to imply that if one believes the process was abused and worked, it means they do not care about the issues of race in this country.

                            You ask for something completely different than I asked, which was mere attribution. I think your remark is rather silly.

                            I am sorry that I am being a realist and do not care about the prior instruction. I think the argument is specious, and rather than take us forward, only takes us back.

                            If SYG is to be abolished, let it be. But I am against placing the burden of self-defense on the accused, especially since many of these cases are brought against black and poor defendants.

                          •  "I am sorry that I am being a realist..." (0+ / 0-)

                            Okay. I know when I'm licked.

                            Don't tell me what you believe, show me what you do and I will tell you what you believe.

                            by Meteor Blades on Mon Jul 15, 2013 at 04:32:07 PM PDT

                            [ Parent ]

                          •  Whatever that means. (0+ / 0-)

                            I did not realize that you were so prone to act just like many of the others here with the glib manner of your comments.

                            Mistakenly thought you would set a better example of how not to be.

    •  If the case was one strictly on forensics, (0+ / 0-)

      including forensics which tend to impeach Z, do you think it has a different outcome?

      He who would trade liberty for security deserves great customer service.

      by Publius2008 on Mon Jul 15, 2013 at 02:24:45 PM PDT

      [ Parent ]

      •  Don't know. Do you think the (0+ / 0-)

        forensic, non-testimonial evidence, proves beyond a reasonable doubt that he did not act in self defense. That's hard, since self defense goes largely to state of mind.

        Further, affiant sayeth not.

        by Gary Norton on Mon Jul 15, 2013 at 02:44:56 PM PDT

        [ Parent ]

  •  Prove that Zimmerman wasn't afraid? Impossible. (4+ / 0-)

    I think this analysis is essentially correct. The job of the Prosecution was to prove, beyond reasonable doubt, that Zimmerman could not have been afraid for his life at the last second.

    And that's an awfully difficult task. I think they probably could have done a better job of getting closer to that point, but it doesn't seem like they could get all the way to proving it. So yea, it's a problem with the law more than anything else.

    •  A reasonable person is the standard. Would a... (0+ / 0-)

      ...reasonable person armed with ready-to-fire 9mm pistol be afraid for his life because of someone he was actively tracking?

      Don't tell me what you believe, show me what you do and I will tell you what you believe.

      by Meteor Blades on Mon Jul 15, 2013 at 02:48:43 PM PDT

      [ Parent ]

      •  Yes, of course, IF someone was attacking him and (0+ / 0-)

        he was never anticipating an attack.  If Z was just following T so he could tell the police where he was when they got there and T did attack him unexpectedly, why would Z not be fearful at that moment?  Of course he would have been....IF that is how it happened.  He had no idea who T was, how old he was, what he was carrying or if he was armed.  He knew nothing.  

        Even if Z was following him and even if Z confronted T verbally....if T then attacked him first and did bang his head and did bash his nose in...then at that very second during an active and ongoing attack, Z could have then felt his life was in danger.  He did not know T was unarmed with gun or knife or whatever.  He did not know to what extreme T would continue the attack.  Being armed himself does him no good if he didn't have the gun out prior to the attack or if the attack had continued and he was never able to use it.  So until the moment of the shot, it is reasonable to assume he was fearful of his life being in danger.  

        I carry too.  If someone attacks me, it does not make me any less scared just because I know I have a weapon at that very second.  Whomever attacking me can also have a weapon and could use it before me...or I might not be able to reach mine to use it in time. It does not make me Superwoman and untouchable from injury, fear or death if I am overpowered physically.  Until I stop the threat, I am just as much in danger as an unarmed person, if they gained the advantage physically, by act of surprise and/or had a weapon themselves.

  •  The outrage should be the SCOTUS Heller ruling (1+ / 0-)
    Recommended by:
    Gary Norton

    With their flawed ruling in Heller on the 2nd amendment.

    All concealed carry permits should be invalidated and the sale or transfer of handguns immediately banned.

    We were not ahead of our time, we led the way to our time.

    by i understand on Mon Jul 15, 2013 at 01:20:50 PM PDT

    •  Yes, that too. But it seems (2+ / 0-)
      Recommended by:
      i understand, kj in missouri

      We've crossed the Rubicon as far as the second amendment is concerned. And sadly, our nations tolerance for gun violence doesn't seem to be abating, but rather increasing. I hope I'm wrong and that the upcoming elections will begin to show a reduction in the power of the NRA.

      Further, affiant sayeth not.

      by Gary Norton on Mon Jul 15, 2013 at 01:23:28 PM PDT

      [ Parent ]

  •  Is it your contention that this wanna be hero who (0+ / 0-)

    was predisposed to be looking for trouble so he could shoot is gun would not have followed a suspicious person that wasn't black?

    Never argue with an idiot. They will drag you down to their level and beat you with experience.

    by thestructureguy on Mon Jul 15, 2013 at 01:52:17 PM PDT

  •  What your saying basically is they are guilty (0+ / 0-)

    until they prove themselves innocent? You defeat the self-defense claim by proving beyond a reasonable doubt the charge.  You prove that and you defeat the self-defense claim.  

    Never argue with an idiot. They will drag you down to their level and beat you with experience.

    by thestructureguy on Mon Jul 15, 2013 at 02:08:06 PM PDT

  •  I do think the jury was at fault because it simply (0+ / 0-)

    gave up in the face  of a nonsensical law talk(it is mid July).
    It would seem like Zimmerman would have to at least provide a reasonable explanation why he killed an unarmed minor. But he didn't have to take the stand.

    Simply being attacked in public(let alone shooting at somebody who trespasses on your property) doesn't give you the right to shoot a human being.

    If you can't give plausible explanation I as a juror would suspect that you might be a lunatic.

    My impression is that laws are written to be misleading.

    •  The problem is (1+ / 0-)
      Recommended by:
      Gary Norton

      as a juror, you are not permitted to reach a verdict based on what you think the law should be, you are only permitted to come to a verdict based on the actual law. He didn't take the stand because his defense already gave that explanation, "self-defense".

      In this case the law is at fault.

      Simply being attacked in public(let alone shooting at somebody who trespasses on your property) doesn't give you the right to shoot a human being.
      Because the truth is in some locales the above statement is entirely incorrect.

      Honesty may be the best policy, but it's important to remember that apparently, by elimination, dishonesty is the second-best policy.

      by fauxrs on Mon Jul 15, 2013 at 05:06:15 PM PDT

      [ Parent ]

  •  there is simply no evidence (0+ / 0-)

    of "racial animus" on Zimmerman's part (there is on Martin's), and no reason to suppose that Zimmerman would have behaved any differently had the "suspicious person" been a Cuban or a "White" meth head behaving exactly as Martin did.

    Fake Left, Drive Right . . . not my idea of a Democrat . . .

    by Deward Hastings on Mon Jul 15, 2013 at 03:49:32 PM PDT

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