What You May Not Know About the Zimmerman Verdict: The Evolution of a Jury Instruction

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.
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More than 16 months after George Zimmerman killed Trayvon Martin, the images from the case are engrained. For some: a teenaged boy in a hoodie, carrying Skittles and an Arizona Iced Tea, shot by a wannabe cop who was armed with a gun and a prior history of violence. For others: a broken-nosed and bloodied neighborhood watchman trying to protect a community.

The temptation to view Zimmerman's acquittal through cultural and racial lenses is nearly irresistible. To critics, the verdict is yet another reminder that we undervalue black humanity and overvalue gun rights, at least when those guns are used by some members of society against certain others. For Zimmerman's supporters, the verdict proves he is an innocent man who was charged only because of public pressure.

But as I've tried to make sense of the verdict, I find myself focusing a little less on race and its complicated and enduring relationship with the criminal justice system and our attitudes about guns and self-defense, and a little more on something far less divisive: jury instructions.

Why Jury Instructions Matter

In our system, we leave questions of fact to a jury. But to render a verdict, a jury must know the law. For this, we rely upon jury instructions. Instructions are supposed to translate the law into lay terms that the jury can apply to the facts as they determine them.

Most followers of the Zimmerman trial know that the jury was instructed about the definitions of both second-degree murder and the lesser-included offense of manslaughter. They also know that the jury was instructed about the definition of self-defense.

The self-defense instruction tracked Florida's broad right to self-defense, which favored Zimmerman in three important ways:

1)A defendant is "justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself." This means that Zimmerman's shooting of Martin did not actually have to be necessary; Zimmerman simply had to have a reasonable belief that it was necessary. (This is typical of self-defense in other states.)

2)If 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 [as above]." This is part of the "stand your ground" aspect of Florida law, which does not require a person to exercise reasonably safe retreat options.

3)"If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty." In some states, defendants have to prove by some level of certainty that they acted in self-defense. In Florida, the state has the burden to disprove self-defense beyond a reasonable doubt.

Notice how these three parts fit together to Zimmerman's advantage. Following someone -- even if because of the most horrific racial stereotypes, even while armed, even after a police dispatcher warns one not to -- is not unlawful. And if jurors had any reasonable doubt about whether Martin "attacked" Zimmerman -- even if he did so out of fear of a strange older man who was following him for no legitimate reason -- they were instructed to acquit.

How Even Floridians Lose the Right to "Stand Your Ground"

Does that mean that Florida law allows a person to trigger an altercation and then use deadly force when he gets a defensive response?

No. Even Florida's broad self-defense statutory scheme follows traditional self-defense limitations by prohibiting "initial aggressors" from using force provoked by their own conduct. A defendant in Florida cannot claim self-defense if he "initially provokes the use of force" against himself, unless he either withdraws from the conflict and conveys the withdrawal to the other party (the legal equivalent of "saying 'uncle'") or uses reasonable escape options to avoid death or great bodily harm (in other words, the initial aggressor has no right to stand his ground; he must retreat).

Because jury deliberations are secret, and no jurors (as of this writing) have spoken publicly about deliberations, it is impossible to know the basis for the jury's acquittal. But let me explain why the verdict might have boiled down to jury instructions.

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.

Why the Jury Didn't Hear the Full Legal Story

Why didn't the jury hear the full story?

Time. This was a trial whose fast pace triggered a complaint from defense counsel about their physical ability to continue. By the time Judge Nelson ruled on the initial aggressor instruction, the parties had squandered more than fifteen minutes arguing primarily about factual inferences that should have been for the jury to draw. The judge's curtness indicates that she was ready to move on, even though the relevant legal issues had barely been touched.

"Error." Watch the video. Watch how West emphasizes the word "error." Error is a word used to invoke fear in trial court judges that they will be reversed on appeal. Coupled with his previous phrase, "as a matter of law," West was suggesting to the court that delivery of an aggressor exception would be the kind of decision that would lead to reversal on appeal if Zimmerman were convicted. No trial judge wants to be reversed, even in a case less controversial than this.

Gibbs. With the clock ticking and a fear of reversal, the court struck the initial aggressor instruction, but it did so without noting the flaw in the defense's reliance on Gibbs v. State.

Interestingly, that case involved another racially charged conflict, but in the other direction (African-American defendant, white victim). The defendant, an African-American woman, said good morning to a white couple. When the couple didn't acknowledge the greeting, the defendant asked why. The white woman responded, "Get away from here you dirty n_____, you don't belong here." The defendant responded with a "racial slur" and a "mooning gesture." The two women ended up in an altercation. After the white woman subsequently died of heart failure, the defendant was charged with "culpable negligence with injury." The trial court instructed the jury about the right to self-defense, including the initial aggressor limitation. The defendant was convicted, but her conviction was reversed on appeal because of an error in the delivery of the initial aggressor instruction.

Using those important words "error" and "as a matter of law," Zimmerman's lawyers successfully focused on the fact that Gibbs's conviction was reversed to persuade Judge Nelson to strike the instruction. But in Gibbs, the defendant's conviction was reversed because the court failed to instruct the jury that the defendant's "provocation" -- as used in the initial aggressor limitation -- had to be provocation through either "force" or "threat of force." Acccordingly, the appellate court reasoned, the jury might have mistakenly believed that the defendant's words or gestures were sufficient to make her an initial aggressor - "no matter how slight or subjective the provocation." Importantly, the court in Gibbs did not indicate that the jury should have heard nothing about the initial aggressor exception. The only error was that the instruction was overly broad by failing to include the "force or threat of force" language.

In Zimmerman's trial, however, the defense used Gibbs to persuade the trial court to strike the initial aggressor instruction in its entirety. Faced with the argument, the prosecution failed to distinguish between an accurate instruction reflecting Florida law and giving no instruction at all.

A properly instructed jury should have heard the complete law of self-defense in Florida, not just the portions that helped Zimmerman. Had the jury been instructed about the initial aggressor exception, it might have concluded that Zimmerman's following of Martin, though itself not criminal, was reasonably apprehended by Martin as a "threat of force." Put another way, the jury might have concluded that Martin was the one acting in self-defense during the physical confrontation that preceded the gunshot, making Zimmerman the aggressor.

The tragic facts of this case should absolutely encourage us to talk about race, guns, and violence. But before we condemn the jurors who acquitted George Zimmerman, we should remember that they were asked to do something extraordinary. They were asked to listen to the facts and apply the law to the best of their ability in a case the world was watching.

And the only law they had came from those jury instructions. Losing the initial aggressor instruction may have been the moment the state lost its case.

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