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Saturday, July 13, 2013

Zimmerman's Not Guilty

The jury just returned an acquittal on all counts in the George Zimmerman case. I have been expecting this verdict from before the trial when I looked at the evidence that had been produced in the state's discovery. Martin's death is an unfortunate loss, but this case had close to zero evidence to support the goverment's charge of murder and only a bit more evidence to support a finding of manslaughter under a standard of beyond a reasonable doubt. As an ethical matter, the government should be ashamed to have even brought the murder charge, even though over-charging is routine. It's an ethical problem hiding in plain sight.

When I peruse some of my friends' Facebook reactions expressing dismay, they seem not to understand that beyond a reasonable doubt is a standard that precludes finding guilt when there is a plausible explanation that is consistent with the defendant's innocence. In this case, there was very strong evidence supporting the defendant's innocence, so much so that Zimmerman's lawyer expressed a desire for something approximating the Scottish verdict for the jury: guilty, not guilty, and innocent.  That confidence was one that he exhibited early on in the process since Zimmerman decided to press for a trial instead of go to a pre-trial self-defense immunity hearing.  He wanted to show his innocence. I'm not sure he could show his moral innocence, but for reasons Jack explained the other day, there was nothing provably unlawful about Zimmerman's following Martin, and there's also no evidence about who was the aggressor, which is a distinct and critical aspect to whether one forfeits one's privilege of self-defense. Being a provacateur is distinct from being an aggressor. 

I will note, hastily, and in closing, since I have to go catch my flight, that I fear that if the races had been turned around, we might have a different verdict. Inasmuch as that is true, it is an indictment of sociological realities, not a prescription for what should have been done in this case, under the BRD standards afforded to defendants in our criminal justice system. And for what it's worth, I am optimistic that the public will get this, and that predictions of violence or mob justice will prove to be mistaken.

P.S. I will be moderating comments on this thread carefully. Signed, specific, and substantive comments will usually get a response.

 

Posted by Dan Markel on July 13, 2013 at 10:27 PM in Criminal Law, Current Affairs | Permalink

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So what are your thoughts on this case? http://www.cbsnews.com/8301-201_162-57433184/fla-mom-gets-20-years-for-firing-warning-shots/

DM: I haven't been following that case too carefully, but from some of the media reports, apparently her children testified against her and said she was the aggressor.

Posted by: CAV | Jul 14, 2013 12:52:50 AM

The question is what the outcome would have been if Martin had not been killed, but only shot and lived to tell his side of the story?

Posted by: Blahblah | Jul 14, 2013 7:01:12 AM

I too am satisfied with the verdict based on the available evidence. But I find myself profoundly disturbed and unsettled nonetheless. I suppose I am just skeptical as to whether this would have happened if Trayvon Martin had been white rather than black. Would an armed neighborhood watchman found him suspicious? Would he have followed him in his car? Would he have gotten out of his car to confront him? Somehow I think not.

Further, even if race was not a factor (again, I'm doubtful), I guess I wonder what I would expect any teenage boy who felt threatened by someone following him would do under the circumstances. Even under Zimmerman's side of the story, Zimmerman has moral culpability. He went looking for trouble that night; he was armed; he didn't follow police advice. And a kid ended up dead.

Again, I'm not attacking the verdict. I didn't follow all of the evidence in the case, but I suspect that I would have voted to acquit too, given what I know. But whatever happened that night was not just a tragedy (though it certainly was that); the inability of the law to deal with it in any meaningful way is a different kind of tragedy.

Posted by: Hillel Levin | Jul 14, 2013 10:49:25 AM

I have a question as a law student, which is about strategy. Or perhaps there's something in the rules of evidence that I'm missing.

I'm fairly confident that the video in which Zimmerman walked the police through his story, and described events in his own words, was inadmissible hearsay if offered by Zimmerman himself (he is not his own 'party-opponent').

Why did the prosecution show it, or allow it to be shown? Without such out-of-court narration offered for the truth of the matter asserted, Zimmerman has no way of raising the self-defense defense without taking the stand. And then if he takes the stand he can be cross-examined on (for example) his views on young black men, and his alleged instigation against police orders.

Did the prosecution somehow decide that Zimmerman was less credible in the video than he would have been on the stand, under extended cross-examination? Such a strategy seems utterly bizarre to me.

Posted by: Jim von der Heydt | Jul 14, 2013 11:24:44 AM

What are the prospects for a civil case-- Estate of Martin v. Zimmerman? With OJ Simpson, the later civil verdict provided a measure of solace for the parents. Zimmerman could be forced to testify. I have no idea how Florida's self-defense statute would apply in a wrongful death suit, but the lower civil standard could easily lead to a different verdict.

I can see how the jury got to not guilty in the criminal case. Nevertheless, I would hate to see Mr Zimmerman start to collect big checks for telling his story in an as-told-to book and then for paid speeches at the NRA convention, etc. Wouldn't the prospect of paying off a large judgment to Mr Martin's family over a long period of years be a measure of rough justice here?

DM: So, David, there's a chance that GZ will be able to use the immunity statute to ward off subsequent civil suits. I've seen some conflicting stuff on the immunity issue: there's a pre-trial right to immunity per http://law.onecle.com/florida/crimes/776.032.html, but Zimmerman did not actually take advantage of that opportunity for reasons speculated about here: http://lawofselfdefense.com/has-zimmerman-waived-his-right-to-a-pre-trial-stand-your-ground-hearing-learn-the-truth/. So now, I think the question is, would the statute permit a post-acquittal hearing that would allow him immunity from future civil suit--it's hard to see why not, but it would probably require the court to determine whether the evidence supported GZ's claim of lawful self defense by the preponderance standard. I'm not entirely sure and would welcome others to weigh in on this.

Posted by: David Levine | Jul 14, 2013 11:35:55 AM

When I peruse some of my friends' Facebook reactions expressing dismay, they seem not to understand that beyond a reasonable doubt is a standard that precludes finding guilt when there is a plausible explanation that is consistent with the defendant's innocence.

How does this statement hold up given the fact that, if one peruses the records of your typical appellate docket, we see that people get convicted of crimes all the time where "there is a plausible explanation that is consistent with the defendant's innocence." I saw cases like that every month in my time as a clerk; and we never reversed them for insufficiency of evidence either.

Lay people may not know the formal definition of "reasonable doubt", but as lawyers we certainly should know that the formal definition often bears little in common with what actually gets people convicted. The problem with citing our highest ideals is that it seems only certain people with certain victims get access to them.

Posted by: David Schraub | Jul 14, 2013 11:51:52 AM

"How does this statement hold up given the fact that, if one peruses the records of your typical appellate docket, we see that people get convicted of crimes all the time where 'there is a plausible explanation that is consistent with the defendant's innocence' [?] "

Here is a stab from someone without experience:
These two things are reconcilable because the particular jury's definition of 'reasonable / plausible' is, by default, not reviewable by a judge.

The insufficiency-of-evidence exception is the egregious case in which NO jury could find something plausible, and therefore the jury in question must have been deluded or confused as to what the law required. Supposedly.

Have I got that right?

Posted by: Jim von der Heydt | Jul 14, 2013 12:00:48 PM

Yes, Jim, you're right on the response to David. David, you were looking at things on appeal, where the jackson v. virginia standard (alluded to by JVH) basically governs. The jury's role is governed by a different standard, the one I alluded to in the original post.


Posted by: Dan Markel | Jul 14, 2013 12:20:23 PM

Jim von der Heydt: A defendant does not need to testify to get a jury instruction on (or prove) self-defense as long as there is other evidence on the record to support the instruction/defense. See, e.g., State v. Bellinger, 278 P.3d 975, 983 (Kan.App. 2012) (" A defendant need not testify in support of a self-defense theory to establish a sufficient factual basis for an instruction."). In the Zimmerman/Martin case, there was other evidence on the record, such as the testimony by two neighbors indicating that Martin was on top of Zimmerman and attacking him, that would have supported a jury insruction on self-defense.

Posted by: Colin Miller | Jul 14, 2013 12:26:01 PM

I'm not sure this response gets to the objection. I accept that there may be excellent reasons why the appellate standard for receiving a judgment of acquittal should more stringent than the formally-described jury standard, such that we shouldn't on appeal reverse verdicts even where it seems "there is a plausible explanation that is consistent with the defendant's innocence." But that doesn't conflict with the observation that juries regularly and systematically convict people "when there is a plausible explanation that is consistent with the defendant's innocence," and we're willing to accept that outcome.

DM: David, I don't accept the inference "that we're willing to accept that outcome." Neither you nor I accept that outcome as a normative matter. And when I was clerking, I worked hard on various sufficiency of the evidence appeals with my judge, and we even got some reversed, one on habeas no less. So keep the fire.

Posted by: David Schraub | Jul 14, 2013 12:40:00 PM

While I doubted there was evidence for a murder conviction and did not support that based on the evidence, the string of inconsistencies and lies by Zimmerman surely points to some form of guilt (perhaps manslaughter and a few years or incarceration was more apropos). To ignore this and allow him to walk is unfortunate. What frustrated me most was the blatant arrogance of defense counsel at the post-verdict news conference. I understand being happy for your effort and your client, but should it be forgotten that an unarmed 17 year old lost his life for no legitimate reason? Basically the system provided justice for Zimmerman and little for Martin. Perhaps the publicity of this case will lead to more focus on responsible gun laws (cue hateful response from NRA supporters).

A civil case would give emotional solace only. Yes, Zimmerman would have to actually testify and speak to the inconsistencies, but unlike OJ Simpson he likely has little to no financial resources to pay a verdict (surely his defense counsel has billed for most if not all of the $300,000 that was raised).

DM: Kendall, which lies of GZ (understood as false statements that are knowingly false at the time they were made) are you referring to? Please be specific.

Btw, I understand that GZ is allowed to pursue an immunity hearing that would be relevant to thwarting subsequent civil suits too. So, the FL civil recourse option may turn out not to be available.

Posted by: Kendall Isaac | Jul 14, 2013 12:50:13 PM

"juries regularly and systematically convict people when there is a plausible explanation that is consistent with the defendant's innocence, *and we're willing to accept that outcome*."

On the contrary! I don't accept that outcome at all as a member of society. I deplore it. I also don't accept it, societally, when voters re-elect corrupt and manifestly counterproductive politicians based on name recognition. I hate both things. I don't accept them socially -- but I do accept them legally, for the same reason in both cases.

Democracy is bad, but it's better than the alternative. I don't want a judge, cut off from community mores in a number of ways, to be able to review the evidence de novo and acquit a Rod Blagojevich or a Duke Cunningham or a Jeffrey Skilling. ESPECIALLY in state courts. That's just a bad scene.

(Also, constitutionally: If jury verdicts could be reviewed de novo, the trial would be aimed past the jury toward the reviewing judge. Even if this didn't change how trials were conducted, it would eviscerate the jury-trial right. But perhaps you're suggesting that only convictions, not acquittals, could be overturned, which would answer the constitutional concern.)

Posted by: Jim von der Heydt | Jul 14, 2013 1:17:37 PM

Jim Asked: I'm fairly confident that the video in which Zimmerman walked the police through his story, and described events in his own words, was inadmissible hearsay if offered by Zimmerman himself (he is not his own 'party-opponent').

Why did the prosecution show it, or allow it to be shown?

Response: "Prosecutors introduced the video – with portions redacted – as evidence in an effort to make the case that there have been inconsistencies in Zimmerman’s story."

http://www.hollywoodreporter.com/news/george-zimmerman-trial-fox-news-579940

My take is that the prosecution didn't have any other evidence.

Posted by: Prof Mad | Jul 14, 2013 3:30:54 PM

But Prof, if Zimmerman didn't tell a story in court, through the video, there wouldn't be any consistencies either. And there's no inference of self-defense when you get out of your car to confront an unarmed young person and he gets shot. (Broken nose notfullywithstanding.)

Posted by: Jim von der Heydt | Jul 14, 2013 3:44:12 PM

Dan, the primary inconsistency/lie was his supposed lack of knowledge about stand your ground laws despite taking criminal law courses and performing well. Surely he also got a briefing when pursuing his CCW license. I have the Florida license myself and the instructor briefed us on similar topics. One has to wonder why would he be dishonest about this. One also has to accept the fact that knowledge of the law increases the ability to formulate a viable self-defense story. His story about the location of the gun and TM going for it was illogical, as well as his inability to provide definitive location information despite his neighborhood familiarity, and his statements about the location of TM's hands after he shot him (he said he spread them out when they were actually underneath him). The totality of the circumstances is troubling (at least to me if not the jury).

DM: Kendall, thanks for sharing. Just quickly, the fact of inconsistencies is not proof of a lie. I'm not sure what from the above you are convinced is evidence of a knowingly false statement. In any event, I suspect the fact that he made a half dozen voluntary statements and voluntarily surrendered ought to mix into the totality of circumstances, as well as the fact that a cop tried to trick him to reveal some fear of being found as dishonest by stating that there was a video of the whole encounter, and that GZ's response was: Thank God [there's a video]. The gov't's own witness, a police officer, stated that he believed GZ's account. If you take BRD seriously, that wrecks just about any criminal case available to the gov't. (Btw, sorry for the delay in responding: your comment was put in the blog's spam filter by mistake.)

Posted by: Kendall Isaac | Jul 14, 2013 4:16:48 PM

I seem to recall that the Martin family has already gotten quite a bit in damages from the condo association, so they're not judgement-proof now. If Zimmerman is sued for wrongful death, could he counterclaim for damages from malicious prosecution? Zimmerman's lawyer blamed the Martin's civil-damages lawyer for instigating the criminal case.

Posted by: Eric Rasmusen | Jul 14, 2013 6:24:14 PM

Why isn't it sufficient to say this: Zimmerman admitted that he killed Martin and claimed it was self-defense. He stated that he had to shoot in self-defense because Martin was banging his head against the concrete. That explanation is inconsistent with the physical evidence. Therefore, Zimmerman lied, and the only plausible reason for the lie is that it wasn't self-defense.

Does the jury really have to acquit on the theory that maybe Zimmerman was in serious danger in some other way, and for some reason decided to lie about it?

Posted by: Jennifer Hendricks | Jul 14, 2013 7:12:02 PM

Jennifer, which physical evidence are you referring to?

Posted by: Dan Markel | Jul 14, 2013 7:40:36 PM

My understanding was that Zimmerman did not have any injuries suggesting blows to concrete.

Posted by: Jennifer Hendricks | Jul 14, 2013 9:07:28 PM

Jennifer, I don't think you're aware of Dr. Di Maio's testimony then.
Eg., http://www.businessinsider.com/vincent-di-maios-george-zimmerman-testimony-2013-7
Specifically:
Di Maio, a renowned expert on gunshot wounds, told jurors Tuesday he saw evidence of at least six impacts on Zimmerman's head. He also said those blows were likely the result of severe force, backing up Zimmerman's claims he killed 17-year-old Trayvon Martin in self-defense.

That testimony contradicted testimony from Valerie Rao, a Florida medical examiner who testified for the state that Zimmerman's head injuries were "so minor" and were likely the result of a single impact.

But Di Maio said Tuesday, "You can have severe head trauma without any marks on the head."

Posted by: Dan Markel | Jul 14, 2013 10:49:52 PM

"When I peruse some of my friends' Facebook reactions expressing dismay, they seem not to understand that beyond a reasonable doubt is a standard that precludes finding guilt when there is a plausible explanation that is consistent with the defendant's innocence."

I can't speak for your friends but I am dismayed and I fully understand that the case is governed by the reasonable doubt standard. However, self-defense requires a *reasonable* belief that deadly force is necessary to prevent imminent death or great bodily harm. The case turns on whether Zimmerman's purported belief was reasonable. In my view, even if virtually all the particulars of George Zimmerman's self-serving account to the police were true, it is clear, beyond a reasonable doubt, that he lacked a *reasonable* fear of imminent death or great bodily harm. He was simply losing a fist fight. It is not plausible that he had a reasonable fear of having his head bashed to death, when in fact he did not even need stitches or a concussion.

Apparently you consider it plausible that Zimmerman's decision to kill Trayvon Martin was reasonable. That is fundamentally a judgment call on your part -- a judgment that the all-white Florida jury agreed with. That is their right. However, the idea that those who reach a different conclusion should be "ashamed" is, quite frankly, offensive.

Posted by: AF | Jul 15, 2013 8:45:51 AM

Aron,
as you are likely aware, GZ had to have a reasonable fear of great bodily injury (OR death) to be justified in using deadly force. If you're stipulating that GZ was losing a fistfight, which at the time was characterized by a witness as TM having pinned GZ in a ground and pound mixed martial arts maneuver, then, unless you're the incredible hulk, I don't know who wouldn't reasonably be in fear of great bodily injury, especially when that other person has proven himself to be an able-bodied 6'6 fighter. In case it wasn't clear, the claim I made regarding shame goes to the prosecution for bringing a second degree murder charge. Prosecutors, in my view, should not overcharge just because they want to get a reputation for toughness or to use that overcharge to leverage defendants into more favorable plea bargains. I have yet to hear from a criminal law professor who believes that the evidence supported a murder conviction, and almost all of the ones I have spoken to believe that the evidence didn't readily support a second degree murder charge here, especially once the beyond a reasonable doubt standard is considered. There are different views about how confident prosecutors should be. Some take the ethical view that prosecutors should themselves believe that the evidence supports the charge beyond a reasonable doubt; others believe it's acceptable to throw spaghetti against the wall and let the jury make sense of what sticks. My view is closer to the former, that the prosecutor should herself be persuaded if she's going to be an agent of the public's condemnation. The second degree charge required evidence of malice, ill-will, or hatred on the part of GZ when he shot TM. Considering the physical evidence and the witness testimony, I stand by my view that the second degree murder charge was shameful.

But don't take my view alone. Consider Alan Dershowitz's comments on Angela Corey:

"She submitted an affidavit that was, if not perjurious, completely misleading. She violated all kinds of rules of the profession, and her conduct bordered on criminal conduct. She, by the way, has a horrible reputation in Florida. She's known for overcharging, she's known for being highly political. And in this case, of course she overcharged. Halfway through the trial she realized she wasn't going to get a second degree murder verdict, so she asked for a compromised verdict, for manslaughter. And then, she went even further and said that she was going to charge him with child abuse and felony murder. That was such a stretch that it goes beyond anything professionally responsible. She was among the most irresponsible prosecutors I've seen in 50 years of litigating cases, and believe me, I've seen good prosecutors, bad prosecutors, but rarely have I seen one as bad as this prosecutor, [Angela] Cory." (July 14, 2013)

Posted by: Dan Markel | Jul 15, 2013 9:19:36 AM

AF, I think you get the heart of the case exactly right. Was GZ's fear of Martin's purported murderousness reasonable? A jury question if there ever was one, and one hopes the jury understood it to be the key in just the way you say.

Not incidentally, I am perplexed by this part of the jury instruction, which may have been dispositive. Utterly weird, especially in its use of the word 'misfortune,' which goes along with the 'death is always a tragedy' topos:

"The killing of a human being is excusable, and therefore lawful ... When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation."

That seems to be drafted for the case where you shove the guy who said something about your mom and he trips and lands on a rusty nail and gets tetanus and dies from a freak infection in the hospital. But I wonder if it wasn't the final landing place of the jury deliberations.

The phrase "by accident" seems to be intended to mean "I didn't mean for him to get shot," but could be read as "I didn't mean the shooting to kill him."

Colin, thanks for your comment, which I think explains a sizable fraction of the prosecution's decision on this point. Still -- and with chagrin at my Monday-morning QBing tendencies -- I think they would have been better served to leave the scuffle undescribed in their case-in-chief, and focus on the instigation moment with a tone of 'res ipsa loquitur': then play nimble defense throughout the second half of the trial, with the hope of forcing Zimmerman to take the stand. All that hearsay put the prosecution way back on its heels....

Posted by: Jim von der Heydt | Jul 15, 2013 9:24:31 AM

Dan! I'm very surprised that in your first couple sentences you're using the term of art "serious bodily harm" as if it were a colloquial phrase. A split-second of Googling yields this: "[The phrase] usually refers to those injuries that create a substantial risk of death or that cause serious, permanent disfigurement or prolonged loss or impairment of the function of any body part or organ..... [For example,] according to Georgia Code § 12-5-53, serious bodily injury means “bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.”

This is not stuff that happens in mixed-martial-arts fighting. Is there some special Florida definition of this term of art, or something in the jury instructions, that makes you think a fistfight + weaponized sidewalk is so clearly a "serious bodily harm" threat?

DM: Jim, the jury wasn't instructed on great bodily harm, and from what I've found poking around, the judges typically don't require any of the tell-tale signs you describe in Florida. Here's a case that discusses serious bodily harm: http://caselaw.findlaw.com/fl-district-court-of-appeal/1155259.html
It doesn't require those life-long permanent injuries either.

FWIW, given what I have heard of how people sometimes die or experience serious damage from head injuries and what I don't know about some stranger's aggressive capacities and dispositions, I find the humble-bravado in some of these comments (it was just a fistfight, just some mixed martial arts moves) to be utterly unpersuasive. Just to be clear, for purposes of this conversation, I understand us to be stipulating to the account GZ rendered here. If that's right, it would also include the comments GZ reported that TM said: e.g., you're going to die tonight. Maybe y'all are more macho than I am, but I take that as a pretty serious threat not to just get up after some punches and sidewalk are mixed together.

Posted by: Jim von der Heydt | Jul 15, 2013 11:46:09 AM

Jim,

The state put on an expert witness who testified, based on her observation of the picture of the back of GZ's head, that his injuries looked "minor" and required no stitches. Other witnesses (e.g., the booking officer) testified that although GZ's head wound was still actively bleeding at the station, he declined to go immediately to the hospital and at no point lost consciousness.

However, the defense put on an expert witness (Di Maio) who testified (correctly; see, e.g., research showing that even subconcussive head injury can lead to CTE) that serious, permanent brain injury and even death can result from an impact to the head that results in no loss of consciousness or concussion or even any external marks. He testified that GZ's lacerations suggested at least six impacts and perhaps more that didn't leave marks, and he described cases in which people under those circumstances later dropped dead an criticized officers for not insisting that GZ go directly to a hospital (noting cases in which arrestees had died in holding cells under similar circumstances and the prisons had been found liable). As for your definition above, GZ did say, in different words (e.g., his head felt like it was exploding), that he was in "extreme physical pain" in his Hannity interview (I confess I can't recall for sure whetehr the prosecution introduced that part into evidence or edited it out). In short, if you believe his version of events, then GZ couldn't have known that the injuries he actually received wouldn't cause serious bodily injury or death.

Much more importantly, the extent of GZ's actual received injuries is, as the defense put it, "gravy" under the law; the law requires a reasonable belief in future (imminent) serious bodily harm, so the fact that GZ only had a (probably) broken nose and lacerations to the back of his head that didn't require stitches or result in loss of consciousness -- even if GZ could have known that these would be medically benign -- isn't the end of the story. The state's own witness (the African American JAG officer who taught GZ criminal justice), in one of the most jaw-dropping moments in a trial full of them, testified to this point of law (without objection by the prosecution, oddly) and when asked by the defense whether someone is obligated to wait until they have actually experienced serious bodily injury or death before invoking their right to self defense, responded, "I wouldn't recommend that." GZ "testified" through his media interviews that TM said "you're going to die tonight MF"; that he called for help multiple times over 40 seconds as his head was being slammed against the concrete multiple times; and that he feared that he would lose consciousness and didn't know what would happen at that point. (The last claim about loss of consciousness is from the Hannity interview, and again, I can't recall whether it was introduced at trial instead of edited out; I paid no attention to this case prior to the trial (which I increasingly think gives me a different perspective on the verdict than many who consumed lots of pretrial media on the case but little of the actual trial) so I didn't see the interview at the time it originally aired, but the networks have been playing it during the trial, and I may have seen it in that context rather than in trial.) Another expert for the defense (Root, I think) testified that under the circumstances (taking GZ's story as true) he had "no other choice" but to use deadly force or continue to be subject to an assault that other witnesses testified could be lethal.

Posted by: Michelle Meyer | Jul 15, 2013 12:41:54 PM

Is there any evidence that Martin, contra Zimmerman, knew anything at all about Mixed Martial Arts moves?

Personally, I had never heard of "ground and pound" prior to this case. The fact that both John Good (the neighbor witness) and GZ are apparently enthusiasts of a blood sport, would suggest to me above all that I would not want to set foot in Sanford, Florida.

Posted by: brad | Jul 15, 2013 1:14:04 PM

Brad, I only heard about it through John Good's testimony. And fwiw, there was some excluded evidence linking TM to enthusiasm for fights too.

Posted by: Dan Markel | Jul 15, 2013 1:42:55 PM

Thanks, Dan, for the caselaw. Notably the court in the case you cite found reversible error in the failure to mention 'moderate' injury as a category separate from 'slight' and 'serious.' And Florida also includes the disfiguring etc. language, albeit as illustrative rather than mandatory. So my point stands: serious bodily harm is a high bar, higher than the colloquial meaning would suggest (despite the odd claim that the phrase "defines itself" leading into an extended discussion of what it is), and I find it remarkable that the jury was not instructed on it. That doesn't mean I disagree with the jury.

The upshot is that SBH in this case seems to me like a close question, not an obvious one, and hinges on the term of art. But Michelle, I DIDN'T mean to suggest that there were no facts to sustain a finding of threatened serious bodily harm to Zimmerman. I was responding to Dan's bare-bones description of an "able-bodied 6'6 fighter" on top of another guy, punching him on concrete. Without more I would be hard pressed to consider that description enough to justify -- for example -- an attempted murder charge ("intent to inflict death or serious bodily harm").

Posted by: Jim von der Heydt | Jul 15, 2013 2:13:49 PM

I totally agree that someone saying "You're going to die tonight" will often justify deadly force in self-defense.

Posted by: Jim von der Heydt | Jul 15, 2013 2:15:15 PM

@brad: I don't recall any evidence admitted at trial that suggested that TM had experience with MMA or even fighting more generally. The judge excluded text messages from a phone in TM's possession* that suggested that the sender of the messages was a fairly frequent fighter who may have gotten into trouble at school and at home for fighting, who was sometimes unsatisfied if his opponent hadn't bled enough for the sender -- "only his nose" -- and who, in the case of one fight, described himself as having won rounds 2 and 3 but lost round one because his opponent had the sender on the ground and got more hits because the sender couldn't do anything. I have no idea whether, assuming the texts were sent by TM, this indicates he had experience with MMA, but I'm not sure that particular format (as opposed to fighting more generally) much matters (I believe that a police officer first introduced the term "ground and pound" to capture what GZ was describing at the police station that night, echoed by the neighbor. GZ's MMA gym trainer testified that he came in to try to lose weight, and that although GZ had succeeded in losing weight and getting in shape (before regaining weight awaiting trial) he remained "nonathletic" and "physically soft" and that he was a 1 or 1.5 on a 10-point scale for fighting prowess.

* The judge excluded the text messages because the phone's account was in the Martin family's name and although it was (double?) password protected, someone other than Trayvon may have known she password, had access to the phone, and sent the relevant text messages.

The length of time the state had knowledge of at least some of the phone's texts** without disclosing them to the defense (from mid- to late-January, when the SAO's IT guy extracted them to June 4, when the defense received them after being alerted to their existence by the SAO's IT guy through a lawyer he retained) was the subject of a pretrial prosecutorial misconduct hearing (which the judge suspended ruling on until after the trial) and an unsuccessful request for a delay in trial. The IT guy has now been fired by Corey for alerting the defense to the possible discovery violation.

** The ones alleged to have been withheld from the defense may have been limited to the texts/photos related to pot and guns rather than to the fighting, or they may have included some or all of the fighting texts, I'm not sure.

Incidentally, the defense first failed, then succeeded, in getting the toxicology report finding pot in TM's system into evidence. The ME, in yet more remarkable testimony, changed his opinion about this matter (and also about how long TM likely lived, both apparently without telling either the state or the defense) about whether the pot could have had any effect on TM. His change of mind (he would later testify that he changes his expert opinion "every hour") came to light only after it became clear that he was reading prepared testimony from the stand; when the judge ruled that the defense had the right to see those notes, his changes of opinion became apparent. Or so I gathered from the hearing, obviously without access to the muted sidebars and in-chambers conferences. In the end, however, the defense nevertheless (wisely) declined to enter the toxicology report into evidence.

Posted by: Michelle Meyer | Jul 15, 2013 2:22:29 PM

I understand reasonable fear and reasonable doubt, but what about the unreasonable message being sent that it is okay to profile someone and ultimately kill him when this whole incident could have been avoided but-for the profiling? This seems to send a message that if you suspect someone of wrongdoing because of an immutable characteristic, you can question him, fight him, and then if you take one too many non-fatal blows, you can kill him. Maybe there isn't a clear legal remedy, but public policy should surely cut against this scenario being justifiable.

Posted by: kendall isaac | Jul 15, 2013 6:40:44 PM

Kendell,
Being a racist isn't a crime. The issue that decides the outcome is what exactly happens in between your racist actions and somebody "ultimately" getting killed.

If I am a chocoholic and am irritable and start an argument at the candy store, then somebody pulls a knife on me and I end up killing him, we don't necessarily blame chocoholism, or consider my acquittal a vindication of chocoholism.

I've been struggling with this issue because I admit that I too on a jury would be biased against the person who acted in racist ways. But I would need to set that aside to be a good juror.

Posted by: Jim von der Heydt | Jul 15, 2013 6:58:46 PM

Being a racist is not a crime, but commiting a hate crime is. But since the issue race was excluded from the trial, we may never know.

Posted by: Kendall Isaac | Jul 15, 2013 9:29:51 PM

I've been getting a lot of flack for explaining self-defense, beyond reasonable doubt, and innocent until proven guilty to some very emotional people who simply can't understand why he walked free. They seem to think there should have been _some_ punishment. As much as I try to say that he could only be found guilty of what he was charged with, they don't understand.

Were there any lesser charges that could have been brought against GZ from the start? For example, if they had started with manslaughter, felony murder, disobeying a police officer, or something else, might there have been a real case for the prosecution?

Posted by: Anne Reboredo | Jul 16, 2013 10:14:25 AM

Am I right that there was *zero* direct evidence that Zimmerman started the fight? That's the key question.

That is, nobody saw him or heard him start it, there were no marks on his fists or Martin's head, etc. And there was no non-laughable circumstantial evidence? That is, Zimmerman didn't have a pattern of starting fights, he wasn't known for having any fighting ability, etc? It seems that the only reason to think that Zimmerman started the fight was that he had a gun and therefore would be self-confident enough to start a fist fight he might not win,and that he might have believed it's a good idea to punch a potential burglar.

Even if there were no evidence that Zimmerman *didn't* start the fight, we have an easy acquittal, don't we? ---Just as Martin would have been acquitted of battery if he had survived and it was his word against Zimmerman's as to who started the fight.

Posted by: Eric Rasmusen | Jul 16, 2013 11:22:15 AM

Eric and Anne:

Yes, Eric, I think it's correct that there was zero direct evidence that GZ initiated the fight. Indeed, there was zero direct evidence that he even participated in it, other than passively. To Anne's question, since self-defense is a defense to all levels of homicide, I don't think that starting with manslaughter or felony child abuse murder (as the state tried to get in at the end) would, alone, have worked any better than starting with second degree (I acknowledge that the overcharge may have framed things for the jury in a way that hurt the prosecution; but I don't think that the evidence presented supports even manslaughter).

The best chance at a manslaughter conviction might have been for the state to have succeeded in having the jury instructed on provocation. Alafair Burke has suggested as much in HuffPo (and see, too, Volokh's post on "provocation and self-defense," which links to Burke). Although I ultimately disagree that this is likely to have made a difference in the jury verdict, it's worth considering, because this portion of Florida self-defense law was clearly relevant, although the jury wasn't instructed on it.

The Florida criminal code provides as follows:

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter [e.g., both self-defense & SYG] 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.

In this case, the relevant prong is (2), and Florida courts have interpreted "provokes" as limited to "force or threat of force." Since, as Eric notes, there is insufficient evidence that GZ first (or perhaps ever) used force against TM, we narrow still further to the issue of "threat of force." There WAS some evidence -- both direct and circumstantial -- that TM reasonably perceived GZ's behavior to constitute a threat of force.

But is the standard requires merely that TM have reasonably believed GZ to have been threatening force, or must there be sufficient evidence that GZ in fact intended to threaten force (of which I think there was close to none)? More importantly, even if TM's reasonable belief that GZ was threatening force suffices, the analysis doesn't end there, and I don't see how we get BYR on (2)(a), which is not much different from the regular self-defense standard on which GZ prevailed, in that it justifies GZ's homicide if he "reasonably believes that he...is in imminent danger of death or great bodily harm," except that it also requires that he "has exhausted every reasonable means to escape such danger" other than deadly force. There was expert witness testimony that he had, in fact, exhausted all other possibilities.

So, unless I'm missing something (which I may well be), contra Burke, I don't quite see the moment that the state lost the fight to have the jury instructed on provocation as the moment GZ was acquitted, though I do agree that this is where the rubber hits the road in this case, and that it's odd that the question of this instruction seems to have received so little time and attention from the court.

Posted by: Michelle Meyer | Jul 16, 2013 12:32:06 PM

AF, is the Hispanic woman juror part of this "all-white Florida jury"?

I share your concerns but not sure that there was evidence "beyond a reasonable doubt" that he did not have a reasonable fear pursuant to the rules of the law, putting aside if the rules are sound.

Posted by: Joe | Jul 16, 2013 11:37:46 PM

I think the Scottish system is actually guilty, not guilty, and not proven (rather than innocent).

Posted by: Peter Q | Jul 17, 2013 6:22:30 AM

Peter, that's why I wrote "approximating the Scottish verdict."

Posted by: Dan Markel | Jul 17, 2013 10:46:16 AM

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