The pitting of people who mistakenly conflate justice with legality (Martin/Zimmerman related)

[Bricker]

@Stoid

It was my fault that I wasn’t a little bit clearer…although it’s certainly still a matter of debate as to whether it could fly: my jury thinks that his “punks/assholes” remarks, combined with his intention to find and detain Martin, demonstrate a pre-existing anger and resentment towards the assholes who always get away, and he considered Martin representative of that group that he was angry at for being criminal and getting away with it. He was fueled with resentment towards “these assholes”, and that had everything to do with nearly every choice and action he took that night. So, like your case example where it was found that “pre-existing racial ill will” could be sufficient for 2nd degree, my argument was/is (though I’m not particularly attached to it, just sayin’) that GZ definitely had pre-existing ill-will towards this perceived group of people he believed were committing crimes against people in his neighborhood and getting away with it. Which, if you think about it, is really more legitimately personal ill-will than generalized racism is; at least it’s directed at a group of individuals, albeit unknown, who have actually *done something *to inspire enmity in GZ, and it is something which he, as Neighborhood Watch Guy, takes very personally: gotten away with burglary and theft in His Watched Neighborhood.

So how about that?

No.

The problem is this: you won’t find a single second-degree murder case in Florida where such indirect evidence of preexisting ill-will was permitted to sustain a conviction. You will find cases in which similar evidence persuades a jury, but not an appeals court.

Remember that your fact-finding must show evidence beyond a reasonable doubt. Among other things, that means the evidence must eliminate all other reasonable scenarios except that of guilt.

Accepting that the chain of reasoning you lay out above is possible – can you really say it’s the only reasonable conclusion – that anyone who says “punks” and “assholes” and an intention to find and detain someone he finds suspicious HAS TO BE motivated by hatred, malice, and ill-will, to the exclusion of any other plausible reasoning?

The appeals court would not agree, since they themselves can posit the alternative scenarios. This is not a substitution of their factual judgment for yours – they are not saying their version happened over yours. They are saying they, and anyone, can see theirs is at least reasonably possible and the evidence didn’t do enough to exclude it.

[Steophan]

@Stoid

:dubious: Are you saying that if a juror thinks that Zimmerman is lying through his teeth because it serves his purpose to do so, but they don’t have a specific alternative to his lie they are required by law to experience doubt they are not actually experiencing?

Yes! Finally, you get it! No matter how strongly they feel he is guilty, if the doubt exists (and that’s an observable thing, not merely a feeling), then they are required by law to acknowledge it.

Your constant claim that all that matters is whether a juror feels doubt is the problem here. That’s not relevant, what matters is whether the evidence provides reason to doubt his guilt. If it does, the jury must, by law, doubt the State’s claim, and acquit.

[Stratocaster]

@camille

The juror statements about “stand your ground” and how “there was no other way” make more sense in light of this, don’t you think? They most likely would have convicted him if the instructions contained the pre-SYG language.

I just don’t see how, not based on this case. ISTM this guy is citing a law he doesn’t understand. Once the threat emerged that created Zimmerman’s fear (if we believe the defense’s narrative, which the jury seemed to), there was zero opportunity to flee or avoid the danger.

Again, that says zero about what kind of law SYG is. It just means it had nothing to do with how this case was argued and decided.

[Stratocaster]

@elucidator

Kinda backwards? The premise is that the verdict was rendered because of the shitty law, yes?

I think you’re misreading my point, which is that that’s a faulty premise. This verdict had nothing to do with SYG.

[camille]

@Kimmy_Gibbler

It is true that if Florida had not eliminated the duty to retreat unless one is at home (or other locations to which the Castle Doctrine applies), a different outcome may have occurred. But saying “If this jurisdiction had different laws, you’d need to decide differently” isn’t the same thing as “was an issue at trial.”

But this isn’t quite what is being said. The original question wasn’t about a “what if” scenario, but if SYG was relevant to the actual outcome of the trial.

Something is at issue at trial if either (i) there is a genuine factual dispute as to a material fact, (ii) there is a bona fide controversy as to the existing law’s application to those facts, or (iii) both.

When a layperson asks if something is “a factor” this is not what they are referring to. Where are we getting this new language “at issue” all of a sudden? It reads like you are skirting around the original question.

Here, there was no factual dispute that Zimmerman was in a place he was lawfully permitted to be nor any controversy regarding the application of that law to those facts, i.e., he had no duty to retreat .

Right, and that is SYG language, isn’t it? That’s the point: SYG laws changed the language of the jury instructions. SYG language was included in the instructions given to this jury in this case. So, how could SYG not be considered a factor in the outcome of this trial, as “factor” is defined in common language (i.e., something that contributes to the process or result)?

As to “avoiding the danger” in the Florida Pattern Jury Instructions (note also that you misquoted this in your analysis, it is "duty to avoid the danger, not “duty to avoid danger”), the danger to be avoided is the immediate avoidance of the assailant’s specific imminent infliction of death or bodily harm (one must avoid the danger of being on the recieving end of that force. It does not mean “avoid getting yourself entangled in heated situations.” In particular, Zimmerman’s continued following of Martin contrary to the dispatcher’s statement that “we don’t need you to do that,” would not represent his failing to “avoid the danger,” as that term refers to the specific danger of the assailant’s threat or use of deadly force and not some generalized concept of danger.

Okay, now we’re well out of layperson territory. First, apologies for my typo; I was only highlighting/recapping the points in Gelber’s blog, not attempting legal analysis.

IANAL, and have no opinion of my own to offer, but Gelber is a former prosecutor, and he seems to think it would have been arguable as applicable to this case, as do some other legal opinions I found during my (brief) search last night (no, not Frederick Leatherman!).

Is there some reason we should discount Gelber’s opinion?

I’m asking sincerely here. Because this is a politicized issue, I hesitate to accept a single opinion without question - no offense meant to you personally. Gelber could well be wrong, but I’d still like to know why; and why he put it out there, if it is so obviously inapplicable, as you suggest.

[Martin_Hyde]

@camille

Martin, are you saying you believe the “had the right to stand his ground” wording was used in FLA jury instructions prior to the SYG laws? I can accept the possibility of a juror being confused, but it is specified in the instructions…

I’m saying it’s part of standard jury instruction in Florida because of SYG, but it’s just that–part of standard jury instructions. It doesn’t mean it has anything to do with the case itself. It only would matter in a case where the prosecution was going to argue the defendant could have fled the situation, since SYG removes a duty to flee, the prosecution can’t really make such an argument. It’s my contention that the prosecution would not have been able to raise a duty to flee argument in this case.

If you think that a) the prosecution would have raised a duty to flee argument and b) it would have prevailed with the jury, then yes you could say SYG was relevant. As I see it I doubt they would have or that it would have succeeded. They tried to paint it as a bad thing that Zimmerman even stepped out of his car, but even in a duty to flee jurisdiction said duty could not be interpreted to exist when you had no perception of danger, or before a reasonable person would realize they might even have a need to flee.

But there are many lines in the jury instructions that aren’t really relevant to the Zimmerman case, the jury instructions are boilerplate. If you look up the Florida Supreme Court’s website it actually shows the full (all possible) jury instructions, and specifies which passages can be included or not included at the discretion of the judge and which must be read in all cases. The passage about “meet force with force” is to be read in all cases in which any claim of justification is read, regardless of the circumstances. So even in a case where someone shoots an intruder in their home it would be read (and you couldn’t doubt it would be irrelevant there, since traditional castle doctrine in Florida would have covered such a scenario.)

There are lots of things in the jury instructions that obviously are not specific to the trial. The phrase, “If you find that George Zimmerman killed Trayvon Martin…” well, that was never even a contested fact. Zimmerman never denied killing Martin." The jury instructions also say a killing is justifiable and lawful if done while resisting an attempt “…to commit a felony in any dwelling house in which George Zimmerman was at the time of the attempted killing.” Since that passage is included in the jury instructions, do you assert that as evidence that the castle doctrine was relevant in the case of State of Florida vs. George Zimmerman?

[camille]

@Stoid

Wasn’t it somewhere in these threads that I read that Judge Nelson had been persuaded to not include the language about provocation in her instructions? Because I think that would have changed things completely, since you still have to try and retreat and find other means if you instigated the danger you are defending against.

Here is a a comprehensive article about that, from a Hofstra Law Professor:

The state asked the court to instruct the jury not only about the justification of self-defense, which favored Zimmerman in the ways described above, but also about its initial aggressor limitation. (View the state’s argument here, beginning at 3:00.) According to the state, the jury might have concluded that Zimmerman provoked any physical response from Martin by following him. If a jury could reasonably find an instruction applicable, the instruction should be given.

The defense objected to the initial aggressor instruction. (See the defense argument here.) As a factual matter, the defense argued that no evidence indicated that Zimmerman physically initiated the confrontation. As a legal matter, the defense relied on Gibbs v. State, a 2001 decision from the Fourth Division of the Florida Court of Appeals, which held that a defendant loses the right to self-defense as an initial aggressor only if he provokes the victim’s use of force through either force or “threat of force.”

After Judge Nelson indicated that she understood the arguments on both sides, defense attorney Don West interjected, “Well, let me point out, as a matter of law, following someone on foot or by car is not against the law… That cannot be considered provocation under the law… Force means physical force or the threat of physical force…” In conclusion, he emphasized, “It would be ERROR, and frankly, promoting miscarriage of justice, if the state were allowed to argue that to the jury.” (See 3:37 here.)

The state attempted to rebut the defense’s argument by noting the defense’s request for a separate instruction regarding the legality of following a person. Judge Nelson responded, “We’re not there yet,” then quickly ruled without elaboration: “The defense does not want to give [the initial aggressor exception]; the state does. The court is not going to give it.”

The court is not going to give it.

That may have been the moment when Zimmerman got acquitted. The end result was that jurors were told only about the parts of Florida self-defense law that benefited the defendant, without knowing anything about the most relevant potential limitation.

There’s more, including her analysis of Gibbs v. State, which the defense cited to argue against the provocation instruction.

[Martin_Hyde]

A case where I think duty to flee obviously would have been extremely important would be the State of West Virginia v. Searls case I mentioned above. In that case at no point in Searls narrative could he have easily argued he had no ability to flee.

In the Zimmerman case, specifically when would you assert that Zimmerman could have fled the situation, and at what evidence would the prosecution have presented to demonstrate that Zimmerman could have fled the situation? I think a lot of people will point to Zimmerman getting out of his car, but based on my understanding of self-defense cases the duty to flee is not a duty to predict the future. If I get out of my car at the dog park to walk my dog, and 300 yards away in the woods is an axe wielding maniac who jumps out at us as I’m walking down the path you cannot assert that I had a duty to flee that was violated by my stepping out of the car. Once he jumped out at me it’s unlikely any court would find I had an opportunity to safely flee, since I would be running from a man who had taken me by surprise and had a deadly weapon.

That’s very different from say, I’m stopped at a red light and someone runs up to my car and starts trying to force their way in and starts hitting my car with a baseball bat. I fish around in my glove box, pull out a firearm, and kill the person. I think you could argue pretty convincingly that I could have simply put my foot on the accelerator and escaped that situation and was actually taking greater risk just to stay around and get my gun out and shoot the assailant. [I’ll not a lot of States consider your car an extension of your home-castle, and castle doctrine would thus apply in the car scenarios in some states.]

I argue there is really zero chance that the prosecution could assert Zimmerman felt he was in imminent danger of bodily harm or death when he stepped out of the car. I doubt even the people in this thread arguing for conviction will say that, I mean it’s pretty obvious from the dispatch calls and etc that Zimmerman was suspicious of Martin and interested in determining what Martin was doing, but “afraid of death” I think would be a hard sell.

That’s why I say SYG was irrelevant. I’ve already pointed out how its inclusion in the jury instructions is not particularly relevant, the jury instructions also mention castle doctrine which was irrelevant to this case. The case in West Virginia is a clear cut “SYG case” because it basically was a bar fight in which one party shot the other, before SYG the prosecution would have been able to make arguments about his ability to escape the situation. Especially since in that case they had an eye witness to the events. In the Zimmerman case it would go back to the fact no one witnessed the Zimmerman-Martin confrontation and any story the prosecution spun about Zimmerman’s ability to claim would basically be asking the jury to speculate about unknowable possibilities, and I doubt that is really something that works. I also question if a prosecutor is even allowed to ask a jury to do such things?

[Martin_Hyde]

The more I learn about self defense laws the more I become convinced politically interested parties are involved in making SYG the issue. I think the key issue is that the traditional scenario in which a defendant has a “burden of production” as to the evidence of self defense, to the preponderance of the evidence, no longer exists in any but two States (Ohio and South Carolina, as per Kimmy Gibbler.) It appears that for whatever reason the other 48 States have written that requirement out of their laws, quite separately from any initiative to pass SYG. It appears this shedding of the preponderance of the evidence standard happened gradually and prior to SYG laws gaining ground.

I think interested parties are going after SYG because they are so clearly linked to the NRA. Many State SYG laws even have near-identical text, because NRA legislative lobbyists basically give State legislators boilerplate law to pass. I think raising SYG is thus a proxy battle with the NRA by the people who initially made SYG such a big issue.

Instead it would appear to me, over the past few decades we’ve made it very easy for a defendant to prevail in a self defense case. I’m not sure the reasons for this, that also could be the result of more gradual and less prominent NRA lobbying, I don’t know. But I’d say the single biggest reason Zimmerman was acquitted is the law in Florida said that if he asserts self defense (and he has basically no burden of production) the State has to disprove his account beyond a reasonable doubt.

When the case has no living eye witnesses and no conclusive physical evidence, it’s basically impossible to do that. Under the old standard where the defense had a preponderance of the evidence BOP it’s possible Zimmerman would have been acquitted. But he would have probably had to take the stand, and his defense team would have had to make a strong case that he acted in self defense. Maybe they would have met the burden of production, but it’s also possible the jury would have found Zimmerman unconvincing and decided not to believe him. I think this removal of the traditional burden of production in self defense claims is far and away the reason Zimmerman was acquitted.

Jury instructions on provocation I don’t think would have made much difference. Those have the same problem as issues surrounding “duty to flee.” The only narrative really submitted as evidence showed Martin as the person to start the fight and I think the various lawyers in this thread have well explained the legal standard for provocation excludes things like “following someone.”

The prosecution instead would have had to have proven, that when Martin and Zimmerman first came into contact, that under the laws of Florida Zimmerman did something to either initiate the fight (by hitting Martin first), or provoke the fight (by engaging in illegal provocation under the law.) Either of those things the prosecution would have to prove beyond a reasonable doubt, based on no witness testimony and no physical evidence. So that puts them in the same problem they have with the whole case in total, and I don’t see how they could have proven either of those things. Proven doesn’t mean, “lay out a reasonable scenario in which Zimmerman might have thrown the first punch, or Zimmerman may have provoked Martin.” Based on what they could support with evidence, legal provocation did not exist–and West was absolutely right, to include it in the jury instructions almost certainly would have been a substantial error of law.

[camille]

Martin, if the castle doctrine (your last example) was mentioned by the juror as being a factor in their decision, then hell yes, I’d consider it to have been relevant to the case. Regardless of the outcome, or if it could be overturned because of the juror’s error, it would still have been a* a factor* as it was part of the process or result.

As reported by the two who have come forward so far, the jurors went over the language quite thoroughly, and the language of stand your ground was relevant to them. Whether or not it was interpreted correctly (a different argument) it was a factor in their deliberations.

There is no way to know for sure if the outcome would have been different with different instructions, but to say that it couldn’t have been is simply overreaching.

[Martin_Hyde]

@camille

Martin, if the castle doctrine (your last example) was mentioned by the juror as being a factor in their decision, then hell yes, I’d consider it to have been relevant to the case. Regardless of the outcome, or if it could be overturned because of the juror’s error, it would still have been a* a factor* as it was part of the process or result.

As reported by the two who have come forward so far, the jurors went over the language quite thoroughly, and the language of stand your ground was relevant to them. Whether or not it was interpreted correctly (a different argument) it was a factor in their deliberations.

There is no way to know for sure if the outcome would have been different with different instructions, but to say that it couldn’t have been is simply overreaching.

Again, the jury are not experts at law. They know what instructions they were read, I don’t trust them to know which instructions were based on SYG and which were not. The two jurors I’ve read of have spoken repeatedly about evidence issues, essentially about how the prosecution lacked evidence to convict Zimmerman of a crime. Maybe they believed that with the burden of proof on the prosecution to disprove any asserted self defense claim that it was like that because of SYG. But that belief does not make it so, that is based on other laws of the State of Florida and not the 2005 SYG law.

Jurors are not experts at law, they are lay people who are instructed on how to make a decision following the law. They are specifically given instructions designed to be understandable by lay people, that doesn’t give their opinions on what laws were relevant to their decision any weight whatsoever.

If they are saying SYG was relevant, that just reinforces what I’m saying–that they are not experts at law. Juror B29 specifically has said:

However, on the second day of deliberations, after spending nine hours discussing the evidence, Maddy said she realized there wasn’t enough proof to convict Zimmerman of murder or manslaughter under Florida law.

Zimmerman concedes he shot and killed Martin in Sanford on Feb. 26, 2012, but maintains he fired in self-defense.

“That’s where I felt confused, where if a person kills someone, then you get charged for it,” Maddy said. “But as the law was read to me, if you have no proof that he killed him intentionally, you can’t say he’s guilty.”

This makes it obvious she is not an expert at law, and also that her decision making really had nothing to do with SYG. This isn’t someone you want to use to support arguments about law.

[Stoid]

@Steophan

Yes! Finally, you get it! No matter how strongly they feel he is guilty, if the doubt exists (and that’s an observable thing, not merely a feeling), then they are required by law to acknowledge it.

Your constant claim that all that matters is whether a juror feels doubt is the problem here. That’s not relevant, what matters is whether the evidence provides reason to doubt his guilt. If it does, the jury must, by law, doubt the State’s claim, and acquit.

Where in the jury instructions do you see that? Or do the instructions exist just to humor the jury? In fact, if the juror’s actual belefs and opinions don’t matter, why bother with a jury at all? Is it some weird citizenship test to see if they come up with the “right” answer?

[camille]

@Martin_Hyde

I argue there is really zero chance that the prosecution could assert Zimmerman felt he was in imminent danger of bodily harm or death when he stepped out of the car. I doubt even the people in this thread arguing for conviction will say that, I mean it’s pretty obvious from the dispatch calls and etc that Zimmerman was suspicious of Martin and interested in determining what Martin was doing, but “afraid of death” I think would be a hard sell.

I agree that the Searls case was clear cut, but I’d go a bit higher than zero chance for Zimmerman. He *was *afraid, and he admitted it to the dispatcher, and later in the interviews. He admitted to fear at various points prior to the confrontation. He used fear as his excuse for not identifying himself on two occasions. So why did he follow in the direction of a person he feared? His own testimony could be used to build a case for reckless behavior.

In the Zimmerman case it would go back to the fact no one witnessed the Zimmerman-Martin confrontation and any story the prosecution spun about Zimmerman’s ability to claim would basically be asking the jury to speculate about unknowable possibilities, and I doubt that is really something that works. I also question if a prosecutor is even allowed to ask a jury to do such things?

No witnesses is a problem, I admit. Isn’t it always? But again, I’m not arguing it* would* necessarily change the outcome, but that it could have. That’s relevant.

Another thing to consider is how it might have changed Zimmerman’s behavior before the fact. He was familiar with the laws. He might have thought twice about his actions if he knew he had a duty to avoid the danger or retreat. That’s also relevant as to whether or not SYG is a good law going forward.

[Stoid]

@camille

Here is a a comprehensive article about that, from a Hofstra Law Professor:

There's more, including her analysis of *Gibbs v. State*, which the defense cited to argue against the provocation instruction.

Thanks for the link, it encapsulates the argument I’ve been having on this topic all along, including the reliance on Gibbs, which Bricker brought up a long time ago; the professor says what I have said since the beginning.

[Martin_Hyde]

@camille

I agree that the Searls case was clear cut, but I’d go a bit higher than zero chance for Zimmerman. He *was *afraid, and he admitted it to the dispatcher, and later in the interviews. He admitted to fear at various points prior to the confrontation. He used fear as his excuse for not identifying himself on two occasions. So why did he follow in the direction of a person he feared? His own testimony could be used to build a case for reckless behavior.

The danger has to be imminent, which just a general feeling of unease wouldn’t be enough to say someone was aware of imminent danger.

[Shodan]

@Bricker

Yes. But you asked about someone who attacks you, and I wrote about someone in your home.

The distinction is important. You need to show that you felt fear because of an attack. But if someone is, uninvited, in your home, we can assume a malevolent intent.

I am sorry to say I still don’t understand. I get (I think) your distinction, but I am talking about something different.

Assume an attack where Joe Malevolent says “I am going to kill you” and lunges for my throat with hands outstretched. Joe outweighs me by fifty pounds and has a documented history of violence (I recognize him from news articles).

If I understand your proposed change, if the attack happens in the street, I am legally obligated to run away if I can. Whereas if it happens in my living room, I am not so obligated even if I safely could. Is that correct?

I think I understand that I can assume deadly intent if an attack happens in my home but have a different burden of proof if it happens in the street. But am I obligated to retreat from a deadly attack if it happens in the street, but not from an equally deadly attack in my home?

I am thinking about attacks in which it is clear that the assailant intends to kill me. Having established that intent on the part of my attacker, I understand you to be saying that human life should be held so sacred that one has a duty to retreat rather than take the life even of an unjust attacker. That’s an honorable position. What I am not getting is why, under the castle doctrine (which I understand you to endorse), why I don’t have an equal duty to retreat rather than kill in my home.

Again, assuming equal levels of proof of intent to kill me, and equally safe avenues of retreat. Maybe I am still not understanding you.

Regards,
Shodan

[Stoid]

@Martin_Hyde

, or provoke the fight (by engaging in illegal provocation under the law.)

Nothing in the law states that provocation has to be by illegal behavior. Force, or threat of force. And of course when you provoke someone into defending themselves, you run up against the same “belief” that applied to Zimmerman: it matters what the self-defender believed about the behavior, not the objective fact of the behavior. The whole “it’s not illegal to follow someone!” Bullshit is just that: bullshit. The question is not whether it is legal or not, the question is whether Martin could’ve had a reasonable belief that Zimmerman posed a threat by his behavior? And of course one must look beyond the mere following to the moment of contact, Zimmermans nonresponsive, non-identifying response to Martin, and the possibility that Martin was next heard saying get off of me.

Seeing as how so many people have agreed that they would find Zimmermans behavior threatening, (And have offered this thought independentl of one another repeatedly just here, never mind the world at large) the error was absolutely in the court’s decision to exclude the initial aggressor portion of the law.

[Martin_Hyde]

You cannot legally initiate physical conflict with someone and successfully argue provocation solely because they are following you. This is why people should ignore Stoid, she understands just enough to be dangerous and has massive blinders to several key elements. Notably here she is obsessed now with the “reasonable belief” concept, but Florida laws and case history spell out what it takes to meet that sort of condition. In Florida it is not provocation to follow someone, and a prosecutor would either fail at trial in trying to say a defendant had provoked a conflict solely by following or the case would be reversed on appeal if somehow the jury convicted.

You haven’t discovered some weird Twilight Zone of the law where any random feelings can justify anything.

[Stoid]

@Martin_Hyde

You cannot legally initiate physical conflict with someone and successfully argue provocation solely because they are following you..

You could save yourself a lot of energy by actually reading what I actually wrote.

[Martin_Hyde]

@Stoid

You could save yourself a lot of energy by actually reading what I actually wrote.

You’re falling into the common fallacious message board belief that everything contained in a response to a poster is a direct refutation of something said by another poster.