One question persists in the aftermath of George Zimmerman’s acquittal. Had he followed instructions and stayed in his car, Trayvon Martin would be going to college in the fall. There wouldn’t have been a trial and there wouldn’t be a debate about that trial. African American parents would still have to teach their kids survival skills that I can’t begin to understand, but at least those skills wouldn’t have to be extended to racist cop wannabes with guns.
Even the juror who has been making the rounds to announce that she signed a book deal conceded that Zimmerman was wrong to get out of his vehicle. Moreover, Zimmerman’s lawyers knew it. That’s why they fought so hard to prevent a jury instruction on initial aggression. Had the jury been instructed on that part of the law, it’s more than a little possible that the verdict would have been less favorable to Zimmerman.
George Zimmerman’s defenders have nothing but kind words for the legal system because it allowed a man to get away with murdering a 17-year-old boy. The various post-mortems have pointed to errors made by the prosecution and there were many. The post verdict debate has been framed on the assumption that since George Zimmerman had a fair trial and was acquitted by a jury of his peers. Because of double jeopardy, Zimmerman can never be tried again for the same crime.
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Is a trial fair if the law was effectively breitbarted to the point of distorting it’s meaning? Based on the instructions that the jurors were given, the meaning of Florida’s law on self-defense was distorted. They were left with the impression that even if someone provoked an altercation they still had an absolute right to use lethal force.
The defense fought hard and won the exclusion of an instruction on the following clause:l
Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
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. (my emphasis)
Moreover, as Alafair Burke of the Huffington Post pointed out, the defense persuaded the judge to leave this instruction out based on a misreading of the ruling in the case they cited.
Using those important words “error” and “as a matter of law,” Zimmerman’s lawyers successfully focused on the fact that Gibbs’s conviction was reversed to persuade Judge Nelson to strike the instruction. But in Gibbs, the defendant’s conviction was reversed because the court failed to instruct the jury that the defendant’s “provocation” — as used in the initial aggressor limitation — had to be provocation through either “force” or “threat of force.” Acccordingly, the appellate court reasoned, the jury might have mistakenly believed that the defendant’s words or gestures were sufficient to make her an initial aggressor – “no matter how slight or subjective the provocation.” Importantly, the court in Gibbs did not indicate that the jury should have heard nothing about the initial aggressor exception. The only error was that the instruction was overly broad by failing to include the “force or threat of force” language. (my emphasis)
If the jury was instructed on this part of the law, it would need to consider if George Zimmerman was the initial aggressor in the fight that led to Trayvon Martin’s death. It would mean considering the facts that occurred before the fight. Facts like Zimmerman’s decision to ignore police instructions to stay in his vehicle would have had a different significance than they had in this case. The inclusion of this jury instruction would mean that the reason Zimmerman disregarded police instructions and followed Trayvon Martin matters to the outcome of the case. Zimmerman claims that he only followed Trayvon to provide police with information on the youg man’s location. If the jury had instructions on the initial aggressor provision, it means they would have to decide whether Zimmerman was following Trayvon for that reason or if he did so for other reasons that would suggest that Zimmerman was the initial aggressor in the fight that led to Trayvon Martin’s death.
No wonder the defense fought with a distorted reading of precedent and fear words to keep the initial aggressor instruction out. When the court ruled in their favor, a not guilty verdict was all but guaranteed. If the jury concluded that Zimmerman was the initial aggressor, under the applicable law, Zimmerman wouldn’t have had the right to use lethal force based on the available facts. He could only have done so if he had at some point retreated from the fight, conveyed it and Trayvon either continued to use force against him or resumed it.
We will never know with absolute certainty if the inclusion of this instruction would have made a difference simply because we don’t know what led to the jury’s verdict. However, the omission of this jury instruction amounted to a misstatement of the law. This omission suggested to the jury that the only thing that mattered is if George Zimmerman reasonably believed death or severe bodily harm was imminent, regardless of whether he started the fight or not. The applicable clause states that is only one part of the equation. If Zimmerman was the initial aggressor, fear of imminent death or severe bodily harm alone wouldn’t have provided Zimmerman with legal cover to use deadly force. For the self-defense defense to succeed it means one of two other things would have had to happen. Either Zimmerman would have had to try every reasonable means to escape or he would have had to retreat, convey to Trayvon that he was retreated and Trayvon would have had to continue or resume attacking him.
The question of whether Zimmerman was the initial aggressor was a crucial one in determining whether he really had a “right” to use deadly force against Trayvon Martin and as such was important enough to influence the jury’s verdict.
While the court does have the discretion to decide which instructions the jury receives, it cannot mis- state the law. If, as it appears in this case, the law was misstated, it means double jeopardy doesn’t apply. In other words, Zimmerman could be retried on the same charges - at least if there was a will to do so.
If this is left unchallenged, the repercussions of the Zimmerman verdict are even more disturbing than originally thought. Within the context of the Zimmerman case, young black man are not only vulnerable to abuse and death by overzealous police, but now any racist gun has the “right” to start an altercation and reserve the right to use deadly force.
The possibility that other George Zimmermans will see this as a precedent to go out and hunt down anyone they deem doesn’t “belong” is only the beginning.
It means even if these individuals are put on trial, the court can just ignore parts of the law that might result in a conviction. That can apply in self-defense cases, but also in other cases. Extending that logic, it means courts could also overlook parts of the law that work in favor of a defendant.
Breitbarted law serves no one, least of all justice.
Image the Todd blog
Former contributor.
