ORLANDO, Fla. - Amid all the nonsense, vitriol and misstatements floating in the wake of the George Zimmerman verdict, there is a very reasonable debate underway over the decision by Judge Debra Nelson not to instruct jurors on the "first aggressor" exception to the justifiable use of deadly force law in Florida.
The state wanted it, the defense didn't and Judge Nelson agreed with the defense.
(Maybe that will now silence those who claim Judge Nelson was in the bag for the state. In addition to siding with the defense on this, she excluded the extremely sketchy state audio expert who heard voices no one else could identity and decipher, and she blocked the state's creative, if misguided, attempt to support a felony murder lesser-included offense based on child abuse.)
But back to the aggressor instruction.
I think there are two problems with the argument that the initial aggressor instruction would have produced a conviction. (And none of the thoughtful writers I've read on this are saying it certainly would have, but it will surely be spewed confidently in the blabberverse, if it hasn't already.)
True: If the evidence supported Zimmerman "initially provoked the use of force against him," the judge should have instructed the jury as follows:
Aggressor. § 776.041, Fla. Stat.
(T)he use of deadly force is not justifiable if you find:
(Defendant) initially provoked the use of force against [himself] [herself], unless:
a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to(assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.
Even if she did read that instruction, though, the jury -- especially this jury, apparently -- may have determined based on the evidence Zimmerman "exhausted every reasonable means to escape the danger" because he could not reasonably escape. (That is one reason why the defense did not seek a Stand Your Ground pretrial immunity hearing, knowing they would still get the benefit of the Stand Your Ground instruction as part of the justifiable use of force instruction.)
Zimmerman claimed he was cold-cocked, knocked to the ground, immediately overpowered, pinned and mounted as his head was banged into concrete as, the jury apparently believed, he screamed for help for at least 45 seconds ("clearly indicating he wanted to withdraw," if he could have). Moreover, the only eyewitness, John Good, testified he yelled for Trayvon to stop what Good contemporaneously described as the MMA-style ground-and-pound he was inflicting on Zimmerman, but Trayvon "continued or resumed the use of force."
So, even if it were given as the state sought, it may not have won the day.
But should it have been given?
In denying it, Judge Nelson effectively agreed with the defense that there was no evidence Zimmerman "initially provoked" the victim with the use or threat of force.
Perhaps the judge could have interpreted Rachel Jeantel's hearing Trayvon say "get off" before the phone went dead the last time as evidence of use or threat of force. But is that really enough evidence of force? (As an aside, Juror 3 (B37) told CNN she did not find Jeantel credible.)
And, even if Jeantel's testimony were accepted as credible and sufficient to support giving the aggressor instruction, the jury could have found that once Zimmerman's perception produced a reasonable fear of great bodily harm, he had the right to use deadly force (based on, as discussed above, testimony and evidence supporting Zimmerman's claim he exhausted means of escape and verbally signaled his desire to withdraw, plus Martin not heeding Good's call to stop the ground-and-pound).
But was there enough evidence for Judge Nelson to find Zimmerman first used force or threat of force?
To block the "first aggressor" instruction, the defense cited a case called Gibbs vs. Florida.
The Gibbs case has a lot of similarities to the Zimmerman scenario.
The opinion states Gibbs, "a 40-year old black woman, saw an elderly white man and woman sitting on a bench outside an apartment building and said to them, 'Good morning. How are you?' When the couple did not respond, she asked why they did not return her greeting. The woman, Julia Osmun, said to appellant, 'Get away from here you dirty n&$@er, you don't belong here.' (Gibbs) responded with a racial slur and an obscene 'mooning' gesture and the two women wound up in a physical altercation."
The court overturned Gibbs' conviction because the judge gave the first aggressor instruction when Gibbs did not use or threaten force until after Osmun swung at her, noting "the victim verbally attacked (Gibbs) and then aggressively approached and swung at (Gibbs)."
That's exactly what Zimmerman claimed Martin did, verbally attacking him (quoting Trayvon as saying supposedly "you got a problem, homey") and then aggressively approaching him and swinging at Zimmerman, only in Gibbs the swing missed, and in this case Zimmerman got popped in the nose -- again according to testimony.
It appears from the CNN interview with one juror that the jury gave great weight to Zimmerman's statements, and I would not have been surprised if they returned an acquittal even with the aggressor instruction. After all, they seem to have accepted the key elements of Zimmerman's version of events.
Another version of what really happened likely died with Trayvon Martin.
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