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Reposted with edits from The Orange Juice Blog

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:

...

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.

And from that, he derives this conclusion:
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

(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.

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.]

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.

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Comment Preferences

  •  The view that Florida has declared open season (34+ / 0-)

    on Black teens has started to take hold on the Left.  It hasn't.  Yes, this verdict -- based on massively faulty jury instructions -- may suggest that to be true, but it's not a function of the law, but of its misapprehension (especially by the judge.)

    The law attempts to prevent a situation that we have little reason to think actually occurred: Zimmerman, for example, engages in misguided aggression against Trayvon (committing assault, battery, and/or false imprisonment -- possibly by showing or pointing a gun) and Trayvon responds by choking him to death.  Not just hitting him, not just straddling him, but actually choking the life out of him.  In such a situation, it is true that Zimmerman -- despite being an idiot and a reprobate -- could use deadly force to save his own life.  Even if someone touches you and yells at you, you can't use deadly force in response.

    There is pretty much no reason to think that Trayvon Martin did so.

    Zimmerman can't invoke 776.041(2)(a) just because he's convenient.  He has to provide evidence that it applies to him.

    He didn't.  He should not have been acquitted.

    "I love this goddamn country, and we're going to take it back."

                                                           -- Saul Alinsky

    by Seneca Doane on Mon Jul 15, 2013 at 10:02:04 AM PDT

  •  under FL law, Z just had to have a prima facie (12+ / 0-)

    showing that he could have had a reasonable fear of great bodily injury.  that is a very low burden of production, and was met by the injuries and the testimony of Goode.

    •  just to fill in the gap: (3+ / 0-)
      Recommended by:
      phillies, erush1345, Neuroptimalian

      once that prima facie showing is made, the burden is on the prosecution to prove everything beyond a reasonable doubt.

      •  some cites w/in a quote: (3+ / 0-)
        When the defense of self-defense is asserted, a defendant has the burden of producing enough evidence to establish a prima facie case demonstrating the justifiable use of force. Fowler v. State, 921 So.2d 708, 711 (Fla. 2d DCA 2006); see Murray v. State, 937 So.2d 277, 282 (Fla. 4th DCA 2006) (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 a 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. Fowler, 921 So.2d at 711. The burden of proving guilt beyond a reasonable doubt, including the burden of proving that a defendant did not act in self-defense, never shifts from the State
        Fields v State.

        Now I'm off to see a client.  Take a week off of work, and of course someone schedules an important meeting for the first day off.  

        •  Again -- there was no prima facie case (2+ / 0-)
          Recommended by:
          Laughing Vergil, trumpeter

          Most obviously, there's a subjective requirement to the defense.  What evidence did he present on that?

          If he had presented a prima facie case, you'd be right.  But he didn't.

          "I love this goddamn country, and we're going to take it back."

                                                                 -- Saul Alinsky

          by Seneca Doane on Mon Jul 15, 2013 at 10:43:00 AM PDT

          [ Parent ]

          •  SD - the issue of a prima facie defense claim (7+ / 0-)

            was resolved. In Florida the defendant does not need to take the stand for a prima facie defense claim to be honored. This issue was discussed between the prosecution, defense counsel and the judge and a decision was made that a prima facie case of self-defense was valid.

            "let's talk about that"

            by VClib on Mon Jul 15, 2013 at 10:53:48 AM PDT

            [ Parent ]

            •  Especially when prosecution (8+ / 0-)

              presents defense's case.

              What a mistake by de la Rionda.

            •  776.012 vs. 776.041 (1+ / 0-)
              Recommended by:
              FarWestGirl

              I concede that he had a prima facie self-defense claim under 776.012, which applied to force that is not deadly force.  I argue that he didn't have one under 776.041, which sets a higher standard for aggressors and addresses their use of deadly force.  This is -- obviously and appropriately -- a higher standard.  I think that your analysis applies to 776.012, doesn't it?

              Tell me: why, given your understanding, is the section about "a presumption" in 776.013 (dealing with home invasion) not surplusage?  If 776.041 required no presentation of more evidence, why doesn't it have the same language?  (Or, on the other hand, why does 776.013 have it?)

              "I love this goddamn country, and we're going to take it back."

                                                                     -- Saul Alinsky

              by Seneca Doane on Mon Jul 15, 2013 at 11:22:08 AM PDT

              [ Parent ]

              •  The 776.041 language (3+ / 0-)
                Recommended by:
                Seneca Doane, FarWestGirl, trumpeter

                was not included in the jury instructions. The prosecution wanted it in, but Nelson took it out. I thought that was a big mistake.

              •  No, its still a defense, NOT affirmative defense. (3+ / 0-)
                Recommended by:
                erush1345, VClib, Neuroptimalian

                The difference is presenting some evidence (from any source, of any weight or credibility) raising the issue - which is all you need to raise a defense (or raise an affirmative defense) - and the burden of persuasion - which for a defense is always on the State and never shifts.  Self-defense, even deadly force, is a defense, not an affirmative defense.  It pretty much always has been so, even at common law.

                IMO T-N is partly right: the statute here is a problem here is the statue, but even more so in this case it was the prosecutors.  The prosecutor not only put on witnesses it did not have to, not only did not have a theory of the case that put guilt squarely on Z, it never engaged on the only issue in the case: self-defense, to degree it had to.  If you're whole argument is 'Z's lying' then you have to hammer that home at every turn, not just sometimes and certainly not while also saying 'on, he may be truthfull about this or that, but...'

                (And btw, the literal wording of the statute actually appears to put a lesser burden on home defense - to which stand your ground was supposed to apply before the NRA turned it into 'stand anywhere' - than just being somewhere, in that the former requires a reasonable fear of imminent death or great bodily harm while the other does not, explicitly at least.  Given the quoted charge does not seem to require imminent either, I'd say that's a problem of Fla law.

                Also, the '1st aggressor' does not apply as you think it does, since 'aggressor' does not mean merely 'followed', even for no good reason and intending to stop unlawfully, but who started the physical force incident, including provocation right before the 1st use of force - which again following isn't.  The problem is Z was the only evidence on the 1st aggressor incident, so unsurprisingly it all favored him.)

                •  Without the prosecution introducing Zimmerman's (0+ / 0-)

                  statements, where was the evidence to satisfy even the burden of production.  I'm not talking about the burden of persuasion, just the need to make a prima facie case.

                  Assault would suffice to make one a first aggressor, not just battery.

                  "I love this goddamn country, and we're going to take it back."

                                                                         -- Saul Alinsky

                  by Seneca Doane on Mon Jul 15, 2013 at 01:13:46 PM PDT

                  [ Parent ]

                  •  Yep. defense likely could not have gotten round he (3+ / 0-)
                    Recommended by:
                    VClib, NearlyNormal, Seneca Doane

                    yarsay rule on them.  IMO, State did it bc they focused so much on trying to win the 2nd degree charge, which was extremely weak from the start for the simple fact that they had nothing substantial to rebut Z's story on 1st aggressor.

                    IMO, assuming they presented everything they could (not a certainty imo), it is another case lost bc of prosecution over-reaching instead of settling for the relatively easily proved up to 15 years prison for manslaughter.  Similar to Casey Anthony in this regard.

    •  No, the burden is not to show that he *could have* (5+ / 0-)

      had a reasonable fear.  It's that (1) he did have a fear of death or great bodily harm and (2) that that fear was reasonable.

      Again, from 776.041:

      (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
      There's no doubt (if we accept that Trayvon was straddling him) that Trayvon hit Zimmerman.  Given that he was the aggressor, that's not enough for a prima facie case for self-defense.  He has to provide enough evidence so that it establishes doubt against the prosecution's case-in-chief.  We have no evidence that the force was so great that he could have reasonably had that belief -- and, more importantly, no evidence that he did in fact have it.  He didn't testify.

      "I love this goddamn country, and we're going to take it back."

                                                             -- Saul Alinsky

      by Seneca Doane on Mon Jul 15, 2013 at 10:40:51 AM PDT

      [ Parent ]

      •  Evidence was lack of injuries and clean clothes (0+ / 0-)

        rights, Z's clothes did not look as if he was smashed on the muddy ground and he was only superficially injured

        •  That wasn't evidence for the defense, though n/t (0+ / 0-)

          "I love this goddamn country, and we're going to take it back."

                                                                 -- Saul Alinsky

          by Seneca Doane on Mon Jul 15, 2013 at 01:15:07 PM PDT

          [ Parent ]

      •  Plenty of evidence from Z: every video the State (1+ / 0-)
        Recommended by:
        Seneca Doane

        played.

        If the State was going to do that, it had to also utterly destroy the crebility of his claims in those every chance it could. IMO the attempts to prove Z a liar were half-hearted. See, Z said the gun was behind his back, so how could he possibly believe TM could see it or reach it, let alone was reaching for it.

    •  Yes (5+ / 0-)

      By the book you are correct and the diarist is wrong.

      I doubt any of this actually entered the jury's thought process but who knows

      •  Read the rest of the thread before opining (2+ / 0-)
        Recommended by:
        Laughing Vergil, 57andFemale

        The jury acted correctly on the instructions -- which were wrong.

        "I love this goddamn country, and we're going to take it back."

                                                               -- Saul Alinsky

        by Seneca Doane on Mon Jul 15, 2013 at 11:26:28 AM PDT

        [ Parent ]

      •  I am not a lawyer, but (1+ / 0-)
        Recommended by:
        Seneca Doane

        I have sat on two criminal juries, one of which was a very complex  trial.  As someone who was a juror, I can say that the judge's instructions to the jury were very important to me and my fellow jurors in both cases.  Whether or not the judge's instructions were correct, I cannot say.  Nor can I say that the jurors did or did not listen to them, although I would suspect that they did based upon my personal experience.

        "Growing up is for those who don't have the guts not to. Grow wise, grow loving, grow compassionate, but why grow up?" - Fiddlegirl

        by gulfgal98 on Mon Jul 15, 2013 at 03:01:17 PM PDT

        [ Parent ]

      •  And that supports (1+ / 0-)
        Recommended by:
        Seneca Doane

        SD's contention that the prosecutor didn't do his job.  

        Those should have entered the jury's thought processes.  They should have been put there by the prosecuting attorney.  That they did not is more evidence that the prosecutor did a crap job.

        I am not religious, and did NOT say I enjoyed sects.

        by trumpeter on Mon Jul 15, 2013 at 03:07:04 PM PDT

        [ Parent ]

    •  I quit reading at the point I realized the author (0+ / 0-)

      wasn't even aware of the basic fact aware that there could be no retrial after an acquittal, absent juror misconduct or the like.  (sigh)

      "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

      by Neuroptimalian on Mon Jul 15, 2013 at 02:41:40 PM PDT

      [ Parent ]

      •  That said, I give him points ... (0+ / 0-)

        for being honest and leaving that portion in as a strike-thru rather than editing it out and pretending it never was said.

        "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

        by Neuroptimalian on Mon Jul 15, 2013 at 09:19:41 PM PDT

        [ Parent ]

  •  Self defense is not an affirmative (10+ / 0-)

    defense under Florida law or any other state law except Ohio, I believe. Unbelievable as it sounds, in Florida and 48 other states, if the defendant asserts self defense the state has to rebut it beyond a reasonable doubt. It is the state's burden. In Ohio, which follows the common law the defense has the burden which must be shown by a preponderance of the evidence.

    Further, affiant sayeth not.

    by Gary Norton on Mon Jul 15, 2013 at 10:11:27 AM PDT

  •  Recommended because this is a discussion we (10+ / 0-)

    need to have.  

    Yes, we need to reform the laws and the system.
    But we also need to understand how existing laws are being used and find the gaps or the failures and correct them.

    Both go together.

    "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

    by YucatanMan on Mon Jul 15, 2013 at 10:20:06 AM PDT

    •  This stuff confuses me. (5+ / 0-)

      I don't want to get too OT, and I once hectored Armando for an answer to this that I never understood, but I remain confused about what 'the law' is. I mean, sometimes we seem to treat 'the law' as a sort of Platonic (though personal) ideal of what we believe the law means. But I don't know what it means to say, 'it's not the law, it's the jury instruction.' Surely the law is the jury instructions. The law is what happens, not what we think should happen, not what might've happened if people weren't fuckwits.

      I read a long argument somewhere about if it's possible for laws to be unconstitutional. I mean, someone said, 'Well, if they pass such-and-such a law, it is perfectly constitutional until such time as the Supreme Court says it's not. But until that happens, it's constitutional.' And the other person said, 'No, it's not constitutional even though at some point it is legal, because when the Supreme Court strikes it down, that means it was never constitutional.' 'Well, it was constitutional until they struck it down. What if a later Supreme Court says it -is- constitutional?' So there is never a final say as to whether a law is, in fact, legal?

      And back and forth. My argument was that torturing people, if ordered to do so by military commanders, is perfectly legal despite the plain reading of the law, because society only rewards, doesn't penalize, officially-sanctioned torture. So what does it mean to say that an act is 'against the law' if the law doesn't actually punish that act?

      So is the law anything other than 'how existing laws are being used?'

      (Wow, that got long and tangential. Sorry.)

      "Gussie, a glutton for punishment, stared at himself in the mirror."

      by GussieFN on Mon Jul 15, 2013 at 10:32:29 AM PDT

      [ Parent ]

      •  Makes perfect sense to me. (5+ / 0-)

        "The Law" may very well be

        So is the law anything other than 'how existing laws are being used?'
        What I was thinking of was:

        1)  The written law - what is on the books.
        2)  Procedures using the law.  Jury instructions, discretionary enforcement, sentencing, conduct of trials, etc.

        We could have perfectly good laws on the books, but not have good procedures or systems for using them. It's a system-wide issue to have that all working correctly.

        For what it is worth as my aside:  since when are 6 people sufficient for a jury for a murder trial?  I've heard of petit juries for certain things, usually lessor offenses or civil commitments or whatever, but murder?  Are some states cutting the 'justice' budgets way too far?

        "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

        by YucatanMan on Mon Jul 15, 2013 at 11:08:21 AM PDT

        [ Parent ]

      •  "The law" is an extremely complex subject. (1+ / 0-)
        Recommended by:
        YucatanMan

        That's why an additional three years of legal education is required before one can become an attorney.  Armchair lawyers usually only confuse laypeople further, making it even more difficult for the average person to have any meaningful understanding.

        "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

        by Neuroptimalian on Mon Jul 15, 2013 at 02:57:20 PM PDT

        [ Parent ]

  •  So, could they (2+ / 0-)
    Recommended by:
    Seneca Doane, Laughing Vergil

    bring another case against him if the judge indeed gave the jury incorrect instructions, or is that door shut?

    •  That would involve rules regarding double jeopardy (2+ / 0-)

      and, as I don't do criminal defense, I don't recall whether the prosecution could demand a retrial here.  (It may depend on how well they preserved the appeal.)

      "I love this goddamn country, and we're going to take it back."

                                                             -- Saul Alinsky

      by Seneca Doane on Mon Jul 15, 2013 at 10:49:14 AM PDT

      [ Parent ]

      •  I'm not an attorney, (5+ / 0-)

        but I've never in my life heard of any circumstance wherein a prosecutor can appeal a finding of not guilty in a criminal trial.

        Under what circumstance would this ever NOT be double jeopardy?

        I invite an attorney practicing criminal law to correct me if I'm wrong here.

        Take note: If you and I are engaged in a heated exchange, disabuse yourself of the notion that I'm trying (futilely) to win you over. My goal is to persuade the hundreds of non-commenting observers who've yet to make up their minds.

        by WisePiper on Mon Jul 15, 2013 at 11:11:12 AM PDT

        [ Parent ]

        •  What if the judge totally screws up out of bias? (2+ / 0-)

          What if there's collusion?  You may be right, I just don't remember if the rule stretches that far because I never have to deal with it.

          "I love this goddamn country, and we're going to take it back."

                                                                 -- Saul Alinsky

          by Seneca Doane on Mon Jul 15, 2013 at 11:24:14 AM PDT

          [ Parent ]

          •  Well, I think the double jeaopardy (3+ / 0-)

            is inviolate. Otherwise, zealous prosecutors would frequently be charging bias on the bench, faulty instructions, etc. Our system, for all its faults, shines in that one regard - the State gets one shot to throw everything it can at you, but if a jury of your peers finds you not guilty, the State cannot keep bringing you back to face the same charge. So, while the Zimmerman verdict (IMV) was a tragic farce, I'm glad the State doesn't have the power to keep bringing him back until they land a jury that agrees on guilty - that would be a nightmare for all of us. (Now, the feds charging him with violating Trayvon's civil rights is another matter, and I'm thankful that option exists.)

            Take note: If you and I are engaged in a heated exchange, disabuse yourself of the notion that I'm trying (futilely) to win you over. My goal is to persuade the hundreds of non-commenting observers who've yet to make up their minds.

            by WisePiper on Mon Jul 15, 2013 at 11:43:24 AM PDT

            [ Parent ]

    •  No, it's not possible to indict on the same crime (4+ / 0-)

      Zimmerman is protected by double jeopardy rules. He could be charged by the feds on a civil rights case, but that looks highly unlikely.

      "let's talk about that"

      by VClib on Mon Jul 15, 2013 at 12:06:06 PM PDT

      [ Parent ]

    •  Nope. (0+ / 0-)

      The law is (intentionally) biased on the side of the defendant.  If it had gone the other way, with the prosecutor being sharp (mostly) and the defense lawyer being a dolt, an appeal could be filed based on Ineffective Assistance of Counsel.  But when the prosecution throws a case away, it's over.

      And that is generally a very good idea.  But sometimes it really sucks, like this time.

      I am not religious, and did NOT say I enjoyed sects.

      by trumpeter on Mon Jul 15, 2013 at 03:29:38 PM PDT

      [ Parent ]

  •  He cannot be retried. (3+ / 0-)

    That would be double jeopardy.  No matter how screwed up the prosecution or the judge was, a verdict of not guilty by a jury is final, period, forever and all time.

    •  He can certainly be retried on federal charges (0+ / 0-)

      That may well be the rule; as I've said, it's not one that I have to know in my practice.  It would seem to allow the judge to nullify any prosecution, period.

      "I love this goddamn country, and we're going to take it back."

                                                             -- Saul Alinsky

      by Seneca Doane on Mon Jul 15, 2013 at 11:30:31 AM PDT

      [ Parent ]

      •  He could be tried federally, yes. (0+ / 0-)

        He cannot be retried on state murder charges, but he can be tried on the federal charge of violating Trayvon Martin's civil rights.  IIRC, the law is a little murky on whether he could be tried on federal murder charges, but he probably could not be.

        As for judges nullifying prosecutions, only an acquittal by a jury is absolute.  A directed verdict of not guilty (where a judge overrules a jury verdict of guilty, or does not let the case go to the jury at all) is appealable under most circumstances.

        I also want to say there is a narrow exception for when the judge was bribed.  That's the only exception I'm aware of, though.

        •  My point was that a judge could ensure acquittal (0+ / 0-)

          by presenting the jury with completely indefensible jury instructions that imposed a literally impossible standard on the prosecution.

          Yeah, OK -- I thought that there was an exception in there somewhere; glad to know that that deeply buried neuron holding that info was not misfiring.

          "I love this goddamn country, and we're going to take it back."

                                                                 -- Saul Alinsky

          by Seneca Doane on Mon Jul 15, 2013 at 12:13:15 PM PDT

          [ Parent ]

  •  Sorry, but (8+ / 0-)

    the judge got it right.

    Done with politics for the night? Have a nice glass of wine with Palate Press: The online wine magazine.

    by dhonig on Mon Jul 15, 2013 at 10:58:53 AM PDT

  •  The prosecutor sabotaged the Zimmerman case (8+ / 0-)

    The prosecutor bought and pushed the defense argument that the killing of Trayvon Martin was not a hate crime. Therefore the prosecutor Angela Corey is responsible for losing her own case.

    She is politically ambitious. I don't think she ever wanted to win. I don't think Rick Scott, who appointed her, wanted anything but sabotage. Scott, who is the governor and whose corporation paid fines for Medicare fraud, appointed Corey to charge Zimmerman only because public opinion and actions in the streets forced his hand.

    At no time did Scott or Corey want justice for the family of Trayvon Martin. Theirs is a racist system of injustice, a system that uses every trick in the book to stop people from voting. Corey was appointed to sabotage the case because she had recently got a black woman, a victim of domestic violence, convicted and sentenced to 20 years for shooting a ceiling, not a person. The white judge in 31-year-old Marissa Alexander's case would not allow her to use the "stand your ground" defense. This is evidence that "stand your ground" is not-so secret code for "it's open season to hunt black people."

    Tampa Mother Gets 20 Years For Firing Warning Shot At Husband

  •  As a person who believes... (1+ / 0-)
    Recommended by:
    57andFemale

    that any forceful blow to an unprotected head is an attempt on life, I'm of the opinion that definitive proof is not much of a bar.

    afaik, Zimmerman should have been convicted for manslaughter given his disregard for procedure in a police matter. He put himself in a position to potentially harm another individual without just cause, and florida's law does not adequately address this scenario.

    The art of listening is the ability to pay attention to that which is most difficult to hear

    by dRefractor on Mon Jul 15, 2013 at 11:45:23 AM PDT

    •  I agree that manslaughter was the right call (1+ / 0-)
      Recommended by:
      dRefractor

      If you're right about unprotected blows to the head, you thus open the door to lots and lots of "justifiable" homicides.

      "I love this goddamn country, and we're going to take it back."

                                                             -- Saul Alinsky

      by Seneca Doane on Mon Jul 15, 2013 at 12:16:02 PM PDT

      [ Parent ]

      •  Yes, I would... (0+ / 0-)

        A big part of our permissive attitudes towards violence is illustrated by our tolerance of "boys will be boys".

        Our brains are, to a very large extent, who we are. We know that physical violence to the head can lead to very severe consequences -- I see no reason to accept this as status quo.

        I was thrown off a jury explicitly for this reason -- the judge intimated that the defense was going to claim that the accused was going to claim self-defense in an aggravated assault case and I basically stated that I would not convict a person of any violent crime if they had not physically started the altercation. I raised two boys who do not take their violence out on fellow human beings (they were both over 6 feet tall and full of testosterone, so it wasn't a case of meekness); their attitude was firmly shaped by mine. Society gets what it tolerates.

        The art of listening is the ability to pay attention to that which is most difficult to hear

        by dRefractor on Mon Jul 15, 2013 at 02:15:28 PM PDT

        [ Parent ]

  •  In accordance with the law (0+ / 0-)

    I think the instructions to the jury were in accordance with Florida law, and that Ta-Nehisi Coates is correct.

    •  If the prosecution had not made Zimmerman's (2+ / 0-)
      Recommended by:
      white blitz, trumpeter

      prima facie case for him, how do you think he'd have satisfied the requirements of 776.041?

      "I love this goddamn country, and we're going to take it back."

                                                             -- Saul Alinsky

      by Seneca Doane on Mon Jul 15, 2013 at 12:14:35 PM PDT

      [ Parent ]

  •  I disagree with both you and Ta-nehisi. (1+ / 0-)
    Recommended by:
    merrywidow

    I blame it on the limp-dicked prosecutors.  They didn't really seem to have their hearts in it.

    •  Yeah, I've already updated the diary (1+ / 0-)
      Recommended by:
      Dumbo

      based on information I hadn't had.  See the update.

      "I love this goddamn country, and we're going to take it back."

                                                             -- Saul Alinsky

      by Seneca Doane on Mon Jul 15, 2013 at 12:17:49 PM PDT

      [ Parent ]

    •  Bernie's heart was definitely in it, alright, ... (0+ / 0-)

      up to his eyeballs, in fact.  Deliberately attempting to withhold evidence from the defense was no casual mistake.

      "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

      by Neuroptimalian on Mon Jul 15, 2013 at 03:04:03 PM PDT

      [ Parent ]

  •  It is the law and the jury instructions were given (1+ / 0-)
    Recommended by:
    Seneca Doane

    in line with Florida's law.

    The burden, in a self defense case in Florida is on the prosecution to prove beyond a reasonable doubt that the accused was not in fear of death or serious bodily harm.

    Z says he was skerred cause his nose got biffed and bled a little, even though he had a gun to keep Trayvon at arm's length.

    As long as the jury believed Z was skeered its an acquittal in Florida.

    That Trayvon was scared before the confrontation and vocally terrified before being killed and possibly frightened by finding that Z had MMA skills, simply cannot be considered, under Florida law.

    That is why the case seemed so screwy, the rolls of prosecutor and defense were reversed.

    Check outhttp://www.huffingtonpost.com/...
    "What You May Not Know About the Zimmerman Verdict: The Evolution of a Jury Instruction"  it is a well written clear explanation of why the jury, legally blindered, by Florida law, had to acquit

  •  introducing his statements (2+ / 0-)
    Recommended by:
    Seneca Doane, trumpeter

    and putting on defense friendly witnesses during the government case in chief were two absolutely bone-headed decisions that were large contributors to the verdict in this case.

    Really kind of bonehead 101 moves IMO.

    You ONLY put on an accused's statements when you are sure they do much more harm to him than good.

    You don't put on defense-friendly witnesses and then let the defense cross examine them!

  •  This is what the prosecutor should have (1+ / 0-)
    Recommended by:
    Seneca Doane

    pointed out in closing arguments.

    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."
    I would have rephrased it this way, though.
    George Zimmerman stalked a teenage boy minding his own business for several blocks with a loaded gun.  When he finally confronted that boy, baiting a scared, confused, innocent boy into a fight, and that boy fought back, George Zimmerman shot him dead.  

    We only know his excuse for doing so from the defense, which is arguing that because Zimmerman brought a gun to an unnecessary fight, he had to shoot his victim in self-defense.  Self-defense!  Because he feared the victim might have taken his gun away and shot him.  With the gun he brought.

    I would also have liked to hear them say a few things like:

    "What if that had been your son that he shot?"

    Instead the prosecutor went on at length about how we have to respect all the wonderful Neighborhood Watch volunteers and about how we must encourage citizens to participate.  Never did they point out that Neighborhood Watches always have very specific guidelines prohibiting the carrying of firearms in order to prevent incidents just like this from happening.

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