Zimmerman Verdict Exposes Deficiencies in U.S. Self-Defense Law

SANFORD, FL - JULY 13: A sign showing support for Trayvon Martin is stuck in the lawn in front of the Seminole County Crimina
SANFORD, FL - JULY 13: A sign showing support for Trayvon Martin is stuck in the lawn in front of the Seminole County Criminal Justice Center where a jury is deliberating in the trial of George Zimmerman on July 13, 2013 in Sanford, Florida. Zimmerman, a neighborhood watch volunteer, is on trial for the February 2012 shooting death of 17-year-old Trayvon Martin. (Photo by Scott Olson/Getty Images)

How can a teenage boy be dead and the man who killed him walk free with no legal consequences? That's the question people across this nation are struggling with. Those who believe George Zimmerman should have been found guilty and those who believe the verdict was correct, share the same somber feeling that something is wrong. Even though the judicial process ran its course, and upheld the present meaning of the black letter law, something feels wrong about the outcome. What's wrong? The law lacks a charge to deal with the factual circumstances that the Zimmerman case presented. Now that George Zimmerman was found not guilty, legal experts and media commentators are calling the case a tragedy, not a crime. The killing of Trayvon Martin was undoubtedly a crime even though the black letter law may not retain a category for it. Killing a human being is always a crime, though sometimes it may be justified. How can the killing of a teenager who was walking home, minding his own business by a man who pursued him with a gun be justified? Morality shapes the law; the law does not shape morality. What can come from this case? An evolution in the law. Clearly, self-defense theory under the law does not take into account a situation where an aggressor places himself in a position that later requires him to invoke self-defense.

Those who believe Zimmerman should have been found guilty, overwhelmingly point to the fact that Zimmerman was told by a 911 operator not to get out of his car and not to pursue Martin, but did anyway. Those who believe Zimmerman should have been found guilty, overwhelmingly point to the fact that he was the aggressor. The problem is that there was no appropriate crime to charge him with given the facts. Prosecutors picked second-degree murder because that's the charge they thought they had the best shot with. Prosecutors said Zimmerman racially profiled Martin made to try to prove malicious intent. The defense easily undermined prosecutor's claims that Zimmerman maliciously murdered Martin by painting him as the neighborhood watchman, who set out to protect his neighbors, after they had been inflicted by a series of past crimes. The jurors had no way of knowing whether the intent to kill Martin existed in Zimmerman's heart and mind. Thus, there were grounds for reasonable doubt under the facts.

Prosecutors faced a losing proposition, not because no crime was committed, but because the crime committed in this case is not easy to prosecute given the current statutes. By calling the facts a tragedy and not a crime, media commentators and legal experts are surrendering morality to the law, when morality should govern the law. The law is not absolute; it lives, it breathes and it evolves. This case surfaced to illustrate that the law requires change.

In every legal case, attorneys must prove a chain of causation existed connecting an action to a result in order to pin liability for a crime on an individual, as its cause. Intervening actions may interrupt the chain and absolve someone of partial or complete liability. In the George Zimmerman case however, you can say that "but for" George Zimmerman pursuing Trayvon Martin, Trayvon Martin would be alive today. There is direct causation. Self-defense theory, an affirmative defense, introduces a whole new set of considerations. Self-defense theory stunts the chain of causation. Rather than the timeline beginning with Zimmerman disobeying the 911 operators directives, now the timeline begins with the physical altercation. The "Stand Your Ground" considerations erase the significance of all events leading up to the altercation. Under traditional self-defense theory, all that matters is who threw the first punch. Under Florida's Stand Your Ground law, all that matters is who had the upper hand.

The George Zimmerman case brings to our attention that there is no liability for instigation, verbal, mental or emotional abuse. All of the aforementioned are actions and all of the aforementioned can be just as severe, just as infuriating and just as criminal as throwing the first punch. Bullying has become a topic of heated debate and concern in society. It is impossible in this day and age to deny the effects of bullying or to deny that pursuing, antagonizing, and pushing someone's buttons can drive even the most controlled and disciplined people to express their frustration through physical force. How often have we heard psychologists postulate that years of bullying and social awkwardness may have been the driving forces behind some of the most appalling mass murders and school shootings in our country over the past decade? And yes, a neighborhood watchman can be the bully.

The bottom line is that self-defense law is outdated. Self-defense law codifies the notion that physical actions create a crime. Now we must figure out how to codify when other types of aggression create liability without self-defense acting as a barrier. Older people, smarter people, stronger people may have an advantage when dealing with slower people, weaker people, younger people. Knowing which buttons to push can be a powerful tool in driving someone to act in ways that are uncharacteristic, including getting violent. How many cases have we seen where women who have been victims of years of domestic abuse, both physical, emotional and psychological one day snap and kill their abuser? The law considers those factors, but in the George Zimmerman case, the instigator is not held liable. As an adult, Zimmerman also should have been held to a higher standard when pursuing and antagonizing someone younger. Instead, the case focused entirely on who had the physical advantage and defense experts said that was Martin because he was "younger" and "stronger." What about who had the advantage when it came to wisdom and life experience? What about who should have known better?

As a lawyer, I believe the jury did do a superb job of applying the facts to the law. The jury delivered a verdict that fits with the law and the instructions they were handed. According to self-defense law, Zimmerman had the right to defend himself when he reportedly found himself straddled and physically attacked by Martin. The fact that Zimmerman started the whole ordeal by inappropriately pursuing Martin became irrelevant. Again, the problem was that there was no charge and no codified instructions that would have allowed the jury to apply the fact that Zimmerman was the original aggressor to their determination. It is worth mentioning that when cases like this one are given to a Judge and not a jury, other types of provocation are usually considered, even though not specifically stated in the statute. n the Supreme Court case of Beard v. U.S., the court stated that a man "was entitled to stand his ground," in part because he "did not provoke the assault." It does not say physically provoke or throw the first punch; it merely says provoke the assault.

Think about it this way: Even if we are just dealing with a physical fight, two people cannot claim self-defense. One person must have been the aggressor and one must have thrown the first punch. To conclude, as the jury did, that Zimmerman invoked self-defense, the jury essentially concluded that Martin threw the first punch and because Martin is dead and there were no eyewitnesses, there is no one to say otherwise. What if Martin had grabbed Zimmerman's gun and shot and killed him? The facts surely would have supported Martin's claim of self-defense because Zimmerman was the one who pursued him with a gun. By reversing the scenario and pretending Martin had been on trial for Zimmerman's death, we can expose the glaring weakness that exists in the law. Either one could have been found to have acted in self-defense on these facts even though only one of them truly could have in reality. The fact that Zimmerman pursued Martin with a gun, would have been defining facts in moving a jury to acquit Martin of murder, had he been the one who had survived. Yet, because he died, those same facts became irrelevant in the self-defense analysis applied to Zimmerman. A law that is effective should operate equally and provide the same result no matter who "wins" the fight.

The self-defense law must change because it puts whoever dies at a disadvantage when it is intended to deliver justice. There is no stronger example for such change than this case. To be killed when you are picking up skittles and a fruit drink and walking home is not just a tragedy, it is a crime. Our present law left the jurors no choice but to rule the way they did. We'll never know who actually threw the first punch. Zimmerman was morally wrong, but he prevailed in a legal sense. Those two principles should not be in conflict, they should be in harmony. If they are, that nagging feeling that the outcome was legally just but morally unjust will go away next time a verdict is delivered in a case like this.