Sunday, July 14, 2013

"So that's what an invisible barrier looks like."*

Trayvon Martin was a “John Doe” for 72 hours after his death. The police didn’t even bother to canvas the small neighborhood where he was shot, to see if he was known there.

George Zimmerman never raised a ‘stand your ground’ defense when he was questioned, because he didn’t have to. A white guy shot a black kid: end of story for the Sanford police.

 Of course, this is the same police force that reportedly calls the African-American residents of Sanford “Porch monkeys.”

 Trials, however, are not devices for determining racial animus; unless they are trials alleging violation of someone’s civil rights. This trial was about the charge of 2nd degree murder, and the burden of proof carried by the parties in making and defending against such a charge. George Zimmerman didn’t raise the statutory “stand your ground” defense; instead, he simply raised the common law (or what was once in common law) affirmative defense of self-defense. That defense effectively changed everything about the trial’s outcome, an outcome that was predictable as of June 29:

On April 1, 2012, the Florida Bar News published proposed amendments to the Standard Jury Instructions. The proposed amendment to Instruction 3.6(f) would strengthen this language to clarify that the jury may convict the defendant only if it finds beyond a reasonable doubt that the defendant did not act in self-defense. The proposed amendment adds the underlined phrase to the charge to the jury:

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of deadly force, you should find [him][her] guilty if all the elements of the charge have been proved.

The bottom line is that Zimmerman cannot be convicted of murder or manslaughter unless the evidence shows beyond a reasonable doubt that he did not act in self-defense.

 Jury instructions are of critical importance, and yet they never enter into dramatic presentations of courtroom trials. In fact, one could say the only thing that really matters in a trial are the jury instructions. These are the words that go to the jury in the jury room. They are the guidelines for what they must do, and the questions they must answer. Above, you see one; it is part of a jury instruction that would have been given to the Zimmerman jury. Consider that instruction, and then consider what you know about the Zimmerman case, and think about how you would decide whether or not Zimmerman was guilty of 2nd degree murder or manslaughter. You might also think about why the prosecution spent so much time rebutting George Zimmerman’s defense team’s version of the facts of the case. That was much criticized in the commentary I saw, mostly on MSNBC.  But to claim self-defense puts the burden on the prosecution to prove you didn't act in self-defense; and that's what the prosecution in Florida was trying to do.  It also explains why Zimmerman's attorney's waived any attempt at "Stand Your Ground."  They knew, in such a high profile case, that a success at such a hearing would end all claims against George Zimmerman, but it also wouldn't be a jury finding him "Not Guilty."  And in a case like this, you want that finding; and they knew they would get it.

Reading this jury instruction, I don’t think the prosecution had much choice in how they conducted this trial. What evidence would have shown beyond a reasonable doubt that he didn’t act in self defense? There were only two witnesses to that fight, and one of them is dead.

This also explains why Mark O’Mara thought the case never should have been brought in the first place. He had a point, though he immediately obscured it with his racist charge that, had Zimmerman been black, the case never would have been prosecuted. I think if Mr. Zimmerman had been black, he’d have never left the police station that night in Sanford.

The real question here is the irresolvable question: what constitutes reasonable doubt? And, more to the point, does race matter in answering that question? Signs, in Florida at least, point to “yes”:

A Florida woman who fired warning shots against her allegedly abusive husband has been sentenced to 20 years in prison.

Marissa Alexander of Jacksonville had said the state's "Stand Your Ground" law should apply to her because she was defending herself against her allegedly abusive husband when she fired warning shots inside her home in August 2010. She told police it was to escape a brutal beating by her husband, against whom she had already taken out a protective order. 

The differences between Ms. Alexander’s case and George Zimmerman’s case: 1) Ms. Alexander is black. 2) no one died from her actions, which means there is no silent witness who cannot testify about their “self-defense.” 3) Ms. Alexander raised both the “stand your ground” defense and self-defense. But another difference, to be fair, is the facts.

After arguing with Rico Gray, her husband, Alexander went to the garage, got a gun from her car and returned to the house. Because of that, the judge who denied immunity concluded she had not been in "genuine fear'' for her life.

Did George Zimmerman have a “genuine fear” for his life? He didn’t say, because he didn’t have to. Is this simply a matter of “change the facts, change the outcome”? And is one of those facts race? From the same article:

In 2006, Laurie Lynn Bartlett killed her boyfriend.

She said he was drunk and tried to sexually assault her. She put a knife in him and got 10 years.

A year later, Ernestine Broxsie killed her ex-boyfriend.

She said he "snapped" and began choking her, so she put a bullet in him. She went free.

Two similar cases with one big difference — Bartlett's victim was white, Broxsie's was black.

The dramatic contrast in outcomes might not have had anything to do with the victims' race. But it reflects a reality about Florida's controversial "stand your ground" law.

A Tampa Bay Times analysis of nearly 200 cases — the first to examine the role of race in "stand your ground" — found that people who killed a black person walked free 73 percent of the time, while those who killed a white person went free 59 percent of the time.

Zimmerman didn’t use Florida’s “Stand Your Ground” law, although Mark O’Mara says he will use it if Zimmerman is sued in civil court (the statute bars all criminal and civil charges from being brought if the defense is allowed).

Is it a coincidence that Trayvon Martin was black, or irrelevant to the final legal analysis of what happened? I don’t think so. The question of “genuine fear” is a relevant issue, and not one determined by a jury charge or the language of a statute. If George Zimmerman had been black, and Trayvon Martin had been white, could George Zimmerman have claimed a “genuine fear” for his life? Would an all-white jury have agreed?

That’s what an invisible barrier looks like.

*It's from "Time Bandits," if you were wondering. 

And, I think this much is right:

 It could open a whole new dialogue about laws that may need to be revised and revamped to suit a 21st century way of life. The reader will also learn why the jurors had no option but to find Zimmerman Not Guilty due to the manner in which he was charged and the content of the jury instructions. 

Not that I want to read the book. I don't want Zimmerman making money off this case, either. That's just ghoulish.


  1. I personally haven't followed the case well enough to even have an opinion about whether the prosecution made mistakes in what evidence they chose to argue/present and what they didn't do. What I did hear were bits and pieces of the prosecution's and defense's closing arguments: and this told me the defense was going to win.

    The prosecutor sounded angry. I don't blame him. I'd be angry too. But the defense attorney, modulo having a Northeastern-ish accent, sounded like Ben Matlock. I think most people in this country will believe an argument from Ben Matlock in full "aw shucks" mode over an argument from Jack McCoy in high dudgeon ... especially if the jury instructions make it clear to the jury that the prosecution must prove that George Zimmerman's actions were not in self-defense.

    Interestingly, the law itself, by my non-lawyer reading, has a very, and significantly so, different tone than the jury instructions regarding application of that law. At the very least, I always thought an "affirmative defense" meant that the usual burden of proof was reversed unlike how the jury instructions were worded.

  2. At the very least, I always thought an "affirmative defense" meant that the usual burden of proof was reversed unlike how the jury instructions were worded.

    I had thought so, too; and I don't know how different Florida statutory and case law is from other states, but I found a 1948 law review article on-line indicating the courts generally don't like shifting the burden of proof from the prosecution. In short (and from a very cursory review), it's unusual to shift the burden of proof to the criminal in almost any circumstance.

    And that's not a new or novel reading of the law. Again, how much that defines Florida jury instructions, v. other jurisdictions, I don't know.