SEE UPDATE AT BOTTOM OF INTRODUCTION, WHICH EXPLAINS CROSS-OUT TYPE
I presume that most people here are familiar with Ta-Nehisi Coates. He's one of the best editorial writers working today of any age or race, but his presence is especially welcome because he's a relatively young African-American editorial. His article on the "not guilty" verdict in the George Zimmerman trial is a stylistic triumph that builds on the notion -- which seems to be solidifying into conventional wisdom -- that the verdict was correct under the state's law; the problem is that the law itself is terrible and in effect invites people to provoke others into fights and then legally kill them, a sort of human counterpart of bullfighting.
He has written a brilliant article on the Zimmerman verdict, "Trayvon Martin and the Irony of American Justice that is worth reading from top to bottom. Unfortunately -- or, actually, fortunately -- it's wrong. Florida law doesn't allow an aggressor to kill someone and assert that they had a reasonable fear for their own life without presenting evidence of the reasonableness of that fear sufficient to create a reasonable doubt as to whether self-defense justified or excused the killing. He's right that the jury instructions suggest otherwise --
and they were egregiously wrong. In fact, if (as I suspect) the judge strong-armed them through based on her own misapprehension of the law, they should provide a basis for appeal and retrial. If Zimmerman wants to invoke self-defense [as the aggressor], he needs to present evidence.
UPDATE: Actually, there's one situation where the defense doesn't need to present evidence to make a prima facie case for self-defense even under the higher standard applied to defendants who use lethal force in a confrontation in which they were the aggressor: when the prosecution introduces the evidence for them.
This is, amazingly -- and by amazingly I mean "this should be in the teaching materials as a Never Do This example" -- that's what happened here. Thanks to Armando for the tip; the details are explained in this HuffPo piece.
Ta-Nehisi is still wrong to blame Florida law itself. It would have worked here, by forcing Zimmerman to take the stand to make his prima facie case and giving the prosecution a chance to tear him to shreds based on his shifting and unlikely stories. But the blame goes to the prosecutor rather than (as I had thought, because this prosecutorial mistake is almost unthinkable) to the judge who decided on the jury instructions. That is the actual scandal that we should be discussing today. Title has been changed accordingly.
I'll try to entice you into reading Coates's article with his introduction and his conclusion:
In trying to assess the the killing of Trayvon Martin by George Zimmerman, two seemingly conflicted truths emerge for me. The first is that based on the case presented by the state, and based on Florida law, George Zimmerman should not have been convicted of second degree murder or manslaughter. The second is that the killing of Trayvon Martin is a profound injustice. In examining the first conclusion, I think it's important to take a very hard look at the qualifications allowed for aggressors by Florida's self-defense statute:And from that, he derives this conclusion:
I don't think the import of this is being appreciated. Effectively, I can bait you into a fight and if I start losing I can can legally kill you, provided I "believe" myself to be subject to "great bodily harm." It is then the state's job to prove -- beyond a reasonable doubt -- that I either did not actually fear for my life, or my fear was unreasonable. In the case of George Zimmerman, even if the state proved that he baited an encounter (and I am not sure they did) they still must prove that he had no reasonable justification to fear for his life. You see very similar language in the actual instructions given to the jury: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.There has been a lot of complaint that "stand your ground" has nothing to do with this case. That contention is contravened by the fact that it is cited in the instructions to the jury. Taken together, it is important to understand that it is not enough for the state to prove that George Zimmerman acted unwisely in following Martin. Under Florida law, George Zimmerman had no responsibility to -- at any point -- retreat. The state must prove that Zimmerman had no reasonable fear for his life. Moreover, it is not enough for the jury to find Zimmerman's story fishy. Again the jury instructions:George Zimmerman has entered a plea of not guilty. This means you must presume or believe George Zimmerman is innocent. The presumption stays with George Zimmerman as to each material allegation in the Information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome George Zimmerman's presumption of innocence, the State has the burden of proving the crime with which George Zimmerman is charged was committed and George Zimmerman is the person who committed the crime.George Zimmerman is not required to present evidence or prove anything.Whenever the words "reasonable doubt" are used you must consider the following: A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find George Zimmerman not guilty because the doubt is reasonable.
It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.
A reasonable doubt as to the guilt of George Zimmerman may arise from the evidence, conflict in the evidence, or the lack of evidence.
If you have a reasonable doubt, you should find George Zimmerman not guilty. If you have no reasonable doubt, you should find George Zimmerman guilty.
It is painful to say this: Trayvon Martin is not a miscarriage of American justice, but American justice itself. This is not our system malfunctioning. It is our system working as intended. To expect our juries, our schools, our police to single-handedly correct for this, is to look at the final play in the final minute of the final quarter and wonder why we couldn't come back from twenty-four down.Fortunately, Coates's analysis is, so far as I can tell, wrong.
The ellipsis after the first paragraph I quote from him contains section 776.041 of the Florida Penal Code. I reproduce that below, but first I want to present two preceding sections of the code.
776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(5) As used in this section, the term:
(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
776.041 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
Proof of a crime means proving certain elements beyond a reasonable doubt. The elements for the crime of murder are found elsewhere in the Florida Penal Code; those are the facts that the state has to prove in order to convict in the absence of what is called an "affirmative defense." The best known "affirmative defense" to a charge of murder is probably what is called "justifiable self-defense." It is not part of the state's case; it is something that must be presented by the defendant with enough force to create reasonable doubt as to guilt. [(But see the update in the intro.]
(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.
In some circumstances, such as 776.013 (dealing with a home invasion, i.e., someone breaking into your house), the law can set forth a presumption that a person had a reasonable fear sufficient to justify lethal self-defense. In that situation, the state has to find one of the exceptions that can be used to rebut that presumption, listed under 776.013(2), and prove its elements beyond a reasonable doubt as well. For example, if the "home invasion" is by the landlord who has a right to be there (and, I'll bet that courts have found, who is there at a reasonable time and who has announced his or her identity in a manner that would reasonably expected to convey it), then the presumption is rebutted and the justification of self-defense can't be used. We lawyers say that the presumption shifts the burden from the defendant to the prosecution, and that the prosecution's proving the elements of the exception shifts the burden back onto the defendant.
If there's no presumption, though, there's no shifting of the burden of an affirmative defense away from the defendant in the first place. And, notably -- especially given the presence of a presumption in 776.013 -- neither sections 776.013 nor 776.041 contain a presumption that the person using lethal force is justified.
That means that the defense has to prove that the justification applies. In this case, it has to prove that -- given that Zimmerman was the aggressor and provoked the confrontation -- (1) the force that Trayvon used against Zimmerman was great, (2) Zimmerman believed that he was in imminent danger of death or great bodily harm, (3) that Zimmerman's belief was reasonable, and (4) that that Zimmerman had 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.
The state doesn't have to prove that Zimmerman's belief was unreasonable. It just has to bat away the defense's assertions that it was reasonable. If Trayvon had been choking Zimmerman, and Zimmerman had bruises on his neck that showed that enough force was being exerted that a reasonable person would think that he would die, then -- tragic as it still would be -- Zimmerman would be able to invoke self-defense to excuse his act of violence. (It would, so far as I know, still be manslaughter -- because he created the situation where it was likely to occur -- but it wouldn't be murder.) But being straddled and punched in the face by an unarmed teenager? He may had had a belief -- born of a state of panic befitting a coward -- that he was in imminent danger of death or great bodily harm, but there was no argument that it was a reasonable belief. He had no presumption working in his favor; the state had no obligation to prove this element beyond a reasonable doubt to earn a conviction.
To prove the affirmative defense in this case, Zimmerman would probably have had to testify. He was, after all, asking the jury to excuse his killing as part of a fight that he had provoked by understanding his subjective understanding of the situation. He would have had to subject himself to cross-examination to allow his subjective understanding to be probed, questioned, and tested. If, after that, reasonable doubt still existed -- if a jury believed that he might have been objectively and subjectively justified -- then he gets found not guilty. Not before then, not without that.
Coates is right: the jury didn't make a mistake, given its instructions. The
judge did and the prosecutors did. (The defense didn't make a mistake; it wanted bad instructions to be in place.) This is an error of law and -- if (as I'd like to think probably would have happened) the judge pushed the prosecution into making such an egregious error -- the verdict can be and should be reversed on appeal.
Florida's law is, at this point, not guilty. Those jury instructions requiring the prosecution to prove the almost-impossible -- that it was true beyond a reasonable doubt that Zimmerman didn't reasonably believe that his life was in danger from a scary black teenager armed with iced tea and Skittles -- are the problem -- and that's the prosecutor's fault.
They didn't prove it because they didn't have to prove it. Zimmerman was required to present evidence to support his affirmative defense of justifiable homicide. He never properly raised the defense because the prosecutor did it for him.