ANALYSIS: Zimmerman's acquittal was likely even without 'Stand Your Ground'

mcaputo@MiamiHerald.comJuly 22, 2013 

George Zimmerman's not-guilty verdict had nothing to do with Stand Your Ground, right?

Wrong.

The wording of the self-defense law appeared in the jury instructions, and it was discussed by jurors, the defense and prosecutors in court.

So, therefore, Trayvon Martin's shooting had everything to do with Stand Your Ground, right?

Also wrong.

There's a good chance Zimmerman might still have walked even if Stand Your Ground had never become law in 2005. At most, without Stand Your Ground, the jury would probably have hung.

In that case, Zimmerman would have walked for months more and still had a great shot of being acquitted in a retrial if the prosecution put on the same case.

Just look at self-defense laws other than Stand Your Ground, and consider that the prosecution broadly failed to prove its case, which lacked some solid evidence.

As with any court case, there are arguments on both sides. Unlike most court cases, the argument over Trayvon's shooting and Zimmerman's verdict is public and largely politically partisan.

Many Democrats, pointing to this case, want changes to Stand Your Ground. It expanded defendants' deadly force justifications and removed their "duty to retreat" from a confrontation.

Top Republicans, who control the Florida Legislature and governor's office, want no changes to the politically popular self-defense law in a state where the violent-crime rate is declining.

The argument over what the jury felt and how the law applied will be at the crux of the political debate as dozens of protestors continue to occupy the state Capitol and the Legislature gears up this fall.

The debate about what could have been and what role all the self-defense justifications had is purely speculative.

We can't go back in time. We can't talk yet to the still-anonymous jurors. There's no transcript of their secret deliberations.

But we have solid evidence: the statements anonymous juror B37 gave CNN, the unclear evidence of the fight that led to the shooting, the jury instructions and the letter of the law.

The jury instructions are crucial.

In open court, Zimmerman lawyer Don West talked about Florida's standard jury instructions, which, by law, have Stand Your Ground language in them.

"That would read 'stand his ground and meet force with force'..." West said, discussing where a comma should go.

"Oh sure," West said of the Stand Your Ground wording, "that's fine."

Of course it was. It helped his client.

You wouldn't know that from co-counsel Mark O'Mara's spin-the-media tour in which he tells

reporters that his team "never mentioned the words 'Stand Your Ground' in our defense presentation or in our arguments." He doesn't mention what West said in open court.

Another jury instruction was conspicuous, but by its absence: The "use of force by aggressor" statute, 776.041.

It could have allowed the jurors to more easily determine whether they believed Zimmerman initiated the fight that led to the shooting, and therefore lose his self-defense justification.

Prosecutor Richard Mantei said the armed Zimmerman's pursuit of the unarmed Trayvon could be considered a threatened use of force that could make him an "aggressor." (Zimmerman thought the hooded Trayvon might be casing apartments in his Sanford complex for burglaries, but he was walking back to his dad's after picking up Skittles and watermelon Arizona Iced Tea).

"There is evidence that the defendant is the provoker, especially when he admits that he was following," Mantei said.

But West responded: "Walking up to somebody, following somebody is not enough to get you to the legal definition of provoked."

The judge sided with the defense, though some lawyers think West bluffed her and she ought to have had a version of the aggressor statute in the instructions.

But even if the "aggressor" instructions had remained, anonymous juror B37 told CNN she believed Zimmerman's defense: He followed a suspicious-looking Trayvon, lost him and then got jumped by the teen.

Trayvon was the aggressor under this scenario.

Yet juror B37 also said that some of the jurors "wanted to find him [Zimmerman] guilty of something."

And one juror, she said, specifically was interested in how or whether Zimmerman's decision to get out of his vehicle and follow Trayvon could fit with a manslaughter charge.

There's a chance this other juror might have found Zimmerman guilty because he was an aggressor. If so, and if B37 stuck to her guns (which sounds likely from what she told CNN), the six-member jury would have hung July 20, and Zimmerman wouldn't be convicted.

But there was no language about starting a fight and then using self-defense, and the instructions were confusing, B37 said.

"After hours and hours and hours of deliberating over the law and reading it over and over and over again," she said, "we decided there's just no other place to go" but render a not-guilty verdict.

B37 twice mentioned Stand Your Ground in discussing the jury's deliberations.

Even without the 2005 law, would the jurors have been persuaded to consider Zimmerman more of an "aggressor" under the old "duty to retreat" provision? That's a hypothetical atop a hypothetical.

And when does that duty to retreat begin?

Under Zimmerman's defense, he had no ability to retreat; he was unexpectedly and savagely attacked. Before he was jumped, there was no confrontation and, therefore, no duty to get away from something that hadn't happened yet.

But even if Stand Your Ground were not on the books and the aggressor language had been part of the jury instructions and if the jury found Zimmerman was the aggressor, he still could be found not guilty.

The aggressor statute says a person who provokes a violent confrontation can still use "force which is likely to cause death" if he "reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger."

That language and section of that law predates Stand Your Ground.

The general "use of force in defense of person" law found in 776.012 has nearly identical self-defense language. And it, too, predates Stand Your Ground, which is sandwiched between the predating statutes at 776.013.

Zimmerman had a bloody head and nose to help prove he was being beaten. And juror B37 believed scared screams of "help" heard in the background of a neighbor's 911 call were Zimmerman's. One witness said he briefly saw Trayvon raining down blows on Zimmerman before the shooting.

So whether you like Stand Your Ground or not, it's not the whole story when it comes to the Zimmerman verdict. It's part of it. It gave Zimmerman extra protections and made the prosecution's already tough job even tougher.

But we don't know how much he really needed Stand Your Ground.

The whole story will never be known. Zimmerman, after all, shot and killed the only other eyewitness.

And when you're a defendant and the only eyewitness -- when there's little evidence to contradict the main thrust of your defense and when the prosecution gets outfoxed -- the chances are extremely high that you'll be found not guilty, regardless of Stand Your Ground.

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