The Trayvon Martins of the world v The George Zimmermans of the world

The Trayvon Martins of the world v the George Zimmermans of the world

I don’t often post to my blogs; only those things that appears to me needs to be addressed or that have struck a nerve.  I have been vacillating back and forth, should I or shouldn’t I post this to my blog ever since the jury verdict in the Trayvon Martin case was announced.   Well after hearing on Sunday, July 21, 2013, that Mr. Obama hinted that there will not be a Federal Civil Rights Case filed by the Department of Justice (DOJ), my vacillating back and forth came to a screeching halt. When it is all said and done, I am writing this because frankly I am at a lost to comprehend how, with all things being equal; the jury reached its verdict and how DOJ can even consider not filing a case against Zimmerman is beyond me.  To paraphrase John Guy, one of the prosecuting attorneys in the case, what would the verdict have been if the victim was white and the perpetrator was black?  Put another way, if this case is not about race then there never can be a case about race.

Florida Stand Your Ground Law states as follows:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant. (Emphasis added)

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful. (Emphasis added)

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1). (Emphasis added)

As you will note this law states that a person to whom the statute applies is immune from criminal prosecution and civil action from using force, including the use of deadly force that results in the death of another person.   The determination of whether the statute applies is an issue that should be determined by the court and not the jury because if it applies no prosecution against the person to whom the immunity relates can be had: As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant. Once the State of Florida, filed the charges, those charges carried with it a determination that there is probable cause that the force used by Zimmerman was unlawful.  Furthermore, if you look at the last section, section 3, although arguably it is couched in the context of civil litigation, it is the court and not the jury that makes the determination that defendant is immune from prosecution.

George Zimmerman, through his lawyer, waived the stand your ground immunity hearing and instead Zimmerman to argue self-defense, will not seek 'stand your ground' hearing. The whole purpose of the law, as I read it, is to preclude putting the defendant in jeopardy criminally if the Stand Your Ground Law is applicable.  Therefore, logically it would seem that if Stand Your Ground Hearing is waived as Zimmerman did, he effectively waived immunity from both the Criminal Prosecution and Civil lawsuit.

I must admit that when Zimmerman’s attorney waived the hearing and stated that he would proceed under self defense that he in fact meant that Zimmerman would be using the common or jurisprudence version of self defense and not Florida Stand Your Ground Immunity Statute.  However, after reflection on the Florid Supreme Court approved Jury Instructions for Justifiable Use of Deadly Force and the supporting statutes cited in those Jury Instructions, the Stand Your Ground Immunity Statute is in fact Florida’s version of self defense; otherwise, the Jury Instructions for Justifiable Use of Deadly Force used in the Zimmerman case makes absolutely no sense.

I often wondered why George Zimmerman was not arrested on the night of Trayvon Martin’s death; after all he had admitted to the shooting Trayvon Martin but had to do so in self defense.  However, after reading the above statutory provision, specifically subsection (2); it became crystal clear why there was no arrest.  Authorities were prohibited, by this statue, from arresting George Zimmerman before there was a probable cause determination that the force that was used was unlawful.  Once the special prosecutor had made the probable cause determination that the force used by Zimmerman was unlawful, the arrest could be made.  This may also explain why the defendant’s legal team waiver of their client’s right to the stand your ground hearing and chose instead self defense because in all probability they would have lost it and under Florida Law, the Stand Your Ground Hearing appears to be a probable cause hearing and generally the defendant does not give up any rights if he waives it.  Furthermore, in order for Zimmerman to prevail at the Stand Your Ground Hearing, Zimmerman would have had to testify and all of his inconsistent statements would be prove right from his own mouth.

Self defense is certainly considered an affirmative defense, to which the United States Supreme Court in Smith v United States, 568 U.S. _____ (2013); 133 S.Ct. 714 (2013), says that as to the specific affirmative defense raised in that case (which is not present in the Zimmerman case), the burden of proof shifts or rests with the defendant and not the prosecution to prove the affirmative defense.  However, under Florida Law, in a criminal proceeding it appears that all Zimmerman had to do is invoke his right to the statute and force the State to disprove that he was entitled to it beyond a reasonable doubt.  In a civil matter, Zimmerman will have to affirmatively alleged the immunity and prove by the preponderance of the evidence that he was entitled to the defense.  The effect of the jury verdict in a subsequent civil matter is left to speculation as well as the weight that a judge in any subsequent civil matter would give to jury verdict in the criminal matter.

As stated previously it appears that the Stand Your Ground Immunity Statute, for all intents and purposes, is Florida’s Self Defense Law.  You can download and read the Zimmerman Justifiable Use of Deadly Force Jury Instructions for yourself here.   The relevant jury instructions given are the ones approved by the Florida Supreme Court and they incorporate the language and make numerous references to the Stand Your Ground Immunity Statute.  Therefore, it appears Self Defense is equivalent to Stand Your Ground Immunity.  You can review the Florida Supreme Court Approved Instruction for Justifiable Use of Deadly Force, Instruction 3.6 (f) here.   You will note that in the Zimmerman case Jury Instruction, there is no Jury Instruction given that relates to Zimmerman being the aggressor, 776.041; although one might argue that one should have been given.

For the purpose of this blog posting I will limit my discussion to the following Jury Instructions:  If George 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 that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.  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.(Emphasis added)

Here is my take on the Jury Instruction; in order for the jury to have reached the conclusion it did; regardless of whether the Jury Instructions were proper or not, Zimmerman had to be engaged in a lawful activity when the incident occurred, Zimmerman could not have been the attacker or aggressor and that the force used was reasonably necessary to prevent death or great bodily harm to him.  This encounter would not have happened but for the actions of Zimmerman; which were contrary to the law and directives given to him by the Sanford Police Department, the Neighborhood Watch Coordinator and the Home Owners Association Memo, which advise to call the police period.  Zimmerman is stated to have confronted Trayvon Martin.  Zimmerman actually racially profiled Trayvon Martin; something that even the police cannot do. End of Story right; since under the facts and evidence, as I appreciate them; the if clause of the Jury Instruction for Justifiable Use of Deadly Force could not have been met?

Juror b37 in her interview with Anderson Cooper says that under the law they had no choice but to find George Zimmerman not guilty. At least four of the other jurors stated that they also did what the law required.  Juror b37 later put out a statement that the jury instructions tied their hands and that the Stand Your Ground Law needs to be changed. Juror b37 also states that George Zimmerman had done some things that he should not have done (unlawful activity?).  Well she is correct on two things, one George Zimmerman had no right to follow, stalk or harass Trayvon Martin; especially since he had been given specific instructions by the Police Department and the Neighborhood Watch not to, and he had no business racially profiling Trayvon Martin, and no person in their right mind could have reasonably believed that the only option to George Zimmerman was to shoot and kill Trayvon Martin or for that matter believe anything that came out of Zimmerman mouth.  For example, I would imagine that for most people pointing a gun at them would make them back off or even run, especially if they are themselves unarmed, as was the case of Trayvon Martin.  But then again, this might have caused Trayvon Martin to run away from Zimmerman and Zimmerman was having none of that (“these people always get away”).

The gun Zimmerman used was a semi-automatic with a safety switch on it.  How Zimmerman was able to reach behind himself, while he was allegedly pen down on the ground by Trayvon Martin, his word not my, remove his gun from its holster, take the safety off, if indeed it was on while in the holster, and then shoot Trayvon Martin in the chest just doesn’t add up to me; especially when he tells the police officer in his initial interview that he, was disorientated and couldn’t see that good.  This coupled with the fact that this incident occurred in a dark unlit portion of the complex and in an area that was either void of security camera or they were not working properly makes me believe that Zimmerman could have possibly picked the location for the incident. George Zimmerman and not Trayvon Martin was familiar with the area, camera location etc. In fact, in his statement to police, Zimmerman admits that he had knowledge that the security cameras may have been inoperative on the date and time he killed Trayvon Martin.  George Zimmerman was not on neighborhood watch duty and was, according to his statement, on his way to the grocery store when he observed Trayvon Martin and circled back around when he observed Trayvon Martin.   The bottom line, juror b37 had her mind made up that George Zimmerman was not guilty no matter what the evidence, the law or the jury instructions state.  As such the jury verdict is tainted and for anyone to say that we should rest upon this jury verdict and move on is absolutely absurd.

The second thing juror b37 is correct on is that this case speaks volume for the proposition that Florida Stand Your Ground Law should be changed, if not repealed.

As stated previously,  it is clear that George Zimmerman was engaged in unlawful activity when he decided to pursue Trayvon Martin, even after being told not to and he initiate this pursuit because he had racially profiled Trayvon Martin, or he was stalking or harassing Trayvon Martin because of his race ; and therefore, he was engaged in unlawful activity that precipitated the fatal encounter with Trayvon Martin. Consequently in light of this Jury Instruction and under the facts and evidence presented in the case George Zimmerman’s shooting of Trayvon Martin was not justifiable use of deadly force; and therefore, the jury had no right to hold George Zimmerman not guilty; if indeed they followed the letter of the law as it appears in the Jury Instructions which they said obligated them to render the verdict it did.

In light of facts of the case, I cannot help but to wonder if there was another overriding reason for the outcome.  Was it because Trayvon Martin’s parents had already won a settlement in excess of one million dollars against the complex’s Home Ownership Association and its insurance company prior to the trial and therefore, there was no need for George, the name by which juror b37 used to describe Zimmerman, to spend the rest of his life behind bars for killing a black or color boy? Was it because juror b37 and her attorney husband had already written a book and the book would have sold more copies if Zimmerman had been found not guilty or was it that the guilty verdict would have meant that the ending would have had to be re-written?  You can view another blogger’s view of juror b37 here.

For all those that think Zimmerman did absolutely nothing wrong, I hope none of you would suggest that an insurance company would pay one million dollars to Trayvon Martin’s parents if it did not reasonably believe that its insured would be held liable for an amount greater than that if the case went to trial.  If you would suggest that, then I guess it is safe to say that you would believe someone when they tell you that they would sell you a plot of land and the land’s mineral rights that produces one million barrels of oil per day for $1.00.

The Florida Supreme Court can prevent the injustices rendered by this verdict for future cases in Florida. First, if in fact the Stand Your Ground Immunity Statute is equivalent to Self Defense, than eliminate or strike the stand your ground wording from the presently approved jury instruction for justifiable use of deadly force because in the average juror mind that prompts the belief that the defendant can do anything he or she please to defend himself or herself without punishment, as juror b37 comments amply illustrates. The language “stand your grounds” is not needed to comply with the Stand Your Ground Immunity Statute or Self Defense provisions found in 776.012, 776.013 or 776.031; since nowhere in the statute itself are those words used.  So why are the words “stand your ground” in the approved jury instructions?

Secondly, and this will probably have the most chilling effect on the use of the Stand Your Ground Law or self-defense provision of Florida Law, place the burden of proof of this affirmative defense by preponderance of the evidence, squarely on the shoulders of the one using it, the defendant; especially since it is not an element of the crime charged with which the prosecution should be obligated to prove beyond a reasonable doubt, see Smith supra and Martin v Ohio, 480 U.S. 228 (1987), Dixon v United States 548 U.S. 1 (1986).  The chilling effect will come because in most instances it will force the defendants to testify and be subject to cross examination by the prosecutor if they want to carry their burden of proof for the affirmative defense by the preponderance of the evidence and would pass Constitutional guarantees according to Smith, Martin and Dixon, supra. 

In light of the Smith case supra, the Florida Supreme Court did exactly what is being proposed here, see  IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES— INSTRUCTIONS 25.9-25.13, (FL 2013).  Now will it do the same thing for the Justifiable Use of Deadly Force Jury Instruction that is the question?

Even if the Florida Supreme Court would adopt the suggestions above, this will have no effect on the other states that have similar Stand Your Ground Statute. 

Fortunately there are alternative vehicles to correct this travesty of justice and send a loud message to all those that would take matters into their own hands and to perpetrate senseless killings.  The first one is the federal hate crimes.  I hear the Department of Justice say that this or any other civil rights criminal action would be a difficult case to advance.  The only thing that is required to bring the case under the federal hate crime statute is Information issued by the Attorney General Eric Holder or a Federal Grand Jury Indictment. Now if Attorney General Eric Holder is concern that he does not have enough to certify this matter as a hate crime, let the Federal Grand Jury sought the case out; cover for him and Obama.  

Now if they are worried about winning the case, that should not be the overriding concern, let the Jury hear the case and decide it on the merits.  After all that is what the Jury System is supposed to do.  Trayvon Martin deserves no less because the last jury that heard this matter sure didn’t decide the case on the facts and evidence presented or for that matter, the law.  But then again the case would have to be tried in Florida and that may be the overriding consideration.  Well I am sure that as long as the jury selected to try this matter is not composed simply of persons sympathetic to the defendant, as was almost surely the case in the State Zimmerman case, justice will be served.  From all indications even in the jury that found George Zimmerman not guilty, on the initial vote, half was for guilty of some crime and there was at least one that held out for conviction until the very end.  Finally, to those who suggest that the federal government has no jurisdiction in matters dealing with criminal matters you need to take a good look at 18 USC § 249 (b) (1) (C). The Zimmerman case is the kind of case this provision was exactly designed for. Mr. Obama might I remind you,  it was you that signed this provision into law and now you are suggesting that it does not have application.  I wonder if we would be having this debate if Trayvon Martin had been a member of the LGBT community as well as being an African American.

Alternatively, arguably the federal government could have jurisdiction in this case under the Deprivation of Rights Under Color of Law Statue, since Zimmerman deprived Trayvon Martin his right to life, liberty and pursuit of happiness by killing him and Zimmerman did, in fact, state that the killing of Trayvon Martin, an African American, was justified by Florida Stand Your Ground Law.  Sounds like a potential Color of Law case to me.  Stretching it, maybe, but please don’t say the federal government has no jurisdiction in these matters.

On the issue of a winnable case, to the Department of Justice less not it forget,  there are several calls of Zimmerman to the Sanford Police Department where the description of the person of interest were all African American Male, forty plus time.  I guess, as far as Zimmerman was concerned, there were no other persons that would fit Zimmerman’s description of suspicious persons other than African American males.  The call Zimmerman made the night of Trayvon Martin death strongly suggest that he had racially profiled Trayvon Martin, code words were used and it is alleged that a racial slur was used by Zimmerman during the call.  A woman identified only as witness number 9 says that Zimmerman and his family harbors racist attitudes toward blacks and that she thought that Zimmerman may have done something to Trayvon Martin because he was black. The special prosecutor in the Zimmerman case has stated in interviews that she believes that the shooting of Trayvon Martin was racially motivated but was prevented from presenting any evidence, whatever evidence she has that substantiate her belief, or even to mention race by the court in the State Zimmerman trial.  Just about every African American in this country believes that this child lost his life simply because he was black, at the wrong place, at the wrong time (within the eyesight of a frustrated and angry white/Hispanic male that was hell bent on not allowing Trayvon Martin to escape from what he perceived Trayvon Martin was) and some vigilante decided to take the law in his own hand. Did the President and the Attorney General mean what they said when they said that they could have been Trayvon Martin?  As I appreciate the unspoken meaning behind these statements, I have been victims of racial profiling too.

Finally here is a quote from a conservative republican: “I favor the Civil Rights Act of 1964 and it must be enforced at gunpoint if necessary”, Ronald Reagan. (Source for the Quote: Brainy Quotes)   So if Ronald Reagan was willing to use or call up the National Guard (I am assuming that this is what President Reagan mean when he said at gunpoint) to enforce the Civil Rights Act of 1964, I cannot understand why some would denounce using the court system to achieve this objective or to send a message that the type of behavior in the George Zimmerman case will not be tolerated.
Lyndon Johnson was the president who was instrumental in getting the Civil Rights Act and the Voting Rights Acts passed.  Both Ronald Reagan and Lyndon Johnson were white.  Mr. Obama and Mr. Holder do you really want to go down in history as the first African American President and Attorney General and do absolutely nothing to enforce the rights of your own people and having the power to do so?  If you really and truly believe that Trayvon Martin could have been you, than stop talking about it and do something to prevent it from ever happening again.

The George Zimmerman case jury verdict defies all human logic and something needs to be done to send a message to all the George Zimmermans of the world, you cannot kill the Trayvon Martins of the world, vigilante style or otherwise, and get away with it without suffering the consequences.  I believe that this country is better than the jury verdict in the George Zimmerman case indicates or the rhetoric spreading since its announcement seems to indicate and I hope that something is done so that this kind of injustice will not happen again.  The Trayvon Martins of the world deserve nothing less.  What better way, than to send a loud message to the Zimmermans of this world that if you kill an unarmed African American, you risk the full arm of the American government coming down upon you via criminal prosecution or whatever other methods are available.  For the federal government not to do anything or only give lip service to the issue is to declare open season on African Americans because George Zimmerman has given the Zimmermans of the world the blueprint to killing African American males and getting away with it.

Now that’s my two cents worth, Leonard.