I look at all of the people
Doing it over and over
You never get any older
I wish that you could be here
--OMD
The Zimmerman trial took place in a state with a stand your ground SYG) provision in the self-defense statutes. Twenty five states have SYG provisions. An interesting discussion of influential Supreme Court opinions that underpin SYG can be found here.
Other states have duty to retreat (DTR) provisions, meaning that a person under attack from an aggressor has a duty to retreat from the attack if it is reasonable to do so. It is important to note that just DTR laws demand retreat only if it can be accomplished in complete safety by the defender and other innocents present at the scene. If this were not the case, then it would be inconsistent with the inalienable right to be secure in one's person and possessions.
Some people who are upset with the Zimmerman trial verdict suggest that the path to justice would have differed had a DTR provision been in place.
This is doubtful.
Assume that the Zimmerman trial is conducted in a DTR state. Zimmerman's story remains the same. He claims that Trayvon Martin attacked him and pinned him to the ground, whereby Martin began pounding Zimmerman's head against the sidewalk. To defend against the attack, Zimmerman shot Martin.
As in a SYG state, or any state with just self-defense law for that matter, the prosecution must convincingly demonstrate that Zimmerman either a) was the aggressor, or b) acted unreasonably in his self-defense.
Let's examine both.
a) The story presented during the trial was that Martin attacked Zimmerman by taking him to the ground. Martin was the aggressor. The prosecution could not prove otherwise.
The aggressor and the point of aggression have therefore been established. This is important for DTR, or for any self-defense law for that matter, because a defender cannot choose a response to aggression until the offensive act occurs, or can be construed as imminent. Only upon aggression can an act of self-defense take place.
b) The story presented during the trial was that Martin threw Zimmerman to the ground and began pounding Zimmerman's head on the sidewalk. It was also claimed that Martin could see and possibly had access to Zimmerman's gun. The prosecution could not prove otherwise.
The prosecution proceeds to argue that Zimmerman should have retreated once he was attacked. The defense counters that Martin's initial attack was sudden and pinned Zimmerman to the ground before he could react. Zimmerman was absorbing potentially lethal blows to the head from Martin and chose a reasonable counterattack given his position. He had no time and was in no position to consider a retreat tactic.
Unless the prosecution can convince the jury that Zimmerman was in a reasonable position to safely escape between the time that Martin first moved on Zimmerman and when Zimmerman was on the ground taking head blows, which seems a tall order in this case, then DTR doesn't help the prosecution's case.
Perhaps this explains why, in post trial interviews, the Zimmerman prosecutors did not attribute much relevance of DTR in this case, and said that self-defense law "really hasn't changed all that much" with SYG.
It seems difficult for reasoning observers not to conclude similarly.
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3 comments:
Why Stand-Your-Ground Was Irrelevant in Zimmerman Case
When George Zimmerman made the decision to use deadly force in self-defense he had already been trying to escape for at least the 45 seconds he was screaming for help and getting his head smashed into a sidewalk. There simply was no reasonably safe avenue of retreat available to him. Therefore he had no duty to retreat, and without any such duty “stand-your-ground” has no role to play in lifting that duty.
~Andrew Branca, Legal Insurrection
Sorry if two comments show up here. My mobile device was misbehaving.
I promise, this is my last try at this, then I will exercise my own duty to retreat.
That phrase, duty to retreat, comes from English common law, which is the basis of our legal system.
That Z killed M is not in question. The prosecution does not have to prove that. In at DTR state (ie the way it has been for centuries) Zimmerman's defense to that was "self defense." That means that the *defense* would have to provide proof -- corroborating evidence or a witness -- that he was in imminent danger and this was his only option.
Now we have SYG, legislation that came about via special interest. No longer does a defendant have to provide that proof. He just has to convince a jury that he was *reasonable* in his belief he was in mortal danger.
I'll say again, that was NOT the standard before SYG.
The jury was given instructions that Z had no such duty to retreat. In fact, they were told that if they had REASONABLE DOUBT that Zimmerman acted appropriately, they were obligated to find him not guilty. So of course SYG mattered here. It's the law in FL.
That is a complete and utter departure from our standards.
Don, that he was trying to escape an attack, having his head smashed into the sidewalk, or screaming for help are simply Zimmerman's stories. There is no evidence at all that any of those things are true, or even that Martin was the aggressor. All we know is that he was an unarmed kid who wasn't breaking any laws.
Z was losing a fist fight that had been going on for less than a minute against someone who was a minor, unarmed, and weighed 40 pounds less than him.
He refused treatment because his injuries were minor. Because he invoked stand your ground immunity the night it happened, he was not arrested. No evidence was collected. In fact, the police didn't even photograph his injuries that night -- they let him go and he came back the next day.
The jury was not told that if Z was the aggressor, he did have the duty to retreat, even though that's the law. They acquitted him, so that is the end of that story. It wouldn't be the first time the jury made a bad decision.
However, this argument about SYG -- which is the root of the problem -- will continue. I provided you several examples yesterday of others who have been acquitted in FL under less murky circumstances. The precedent is terrifying.
As promised, I am retreating now.
Martin’s death was not all the prosecution needed to prove.
The charge against Zimmerman was second degree murder. In FL, the prosecution must prove that a) Martin is dead, b) Martin’s death was caused by a criminal act committed by Zimmerman, c) there was an unlawful killing of Martin by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
The legal burden is on the prosecution to prove that the accused broke the law—including any laws with self-defense provisions (which provide for situations where the killing of another human being is justified). Once again, this returns us to the necessity that, in order to prove its case, the prosecution must a) establish Zimmerman as the aggressor, or b) demonstrate that Zimmerman’s response to Martin’s attack was unreasonable. The prosecution needed to do this regardless of whether SYG or DTR provisions were in place.
The prosecution could not do so.
The original post explains why the prosecution would have been unlikely to do so in this case even with a DTR provision in place.
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