It's taken a long time for me to put down my thoughts about not only the George Zimmerman trial verdict, but also its aftermath. Suffice to say, I've long been uncomfortable with how quickly the narrative changed. And a breathtaking analysis from law professor and best-selling author Alafair Burke helped me realize why. In a Huffington Post column, she stresses the critical role of jury instructions and how, due to a hurried ruling by Judge Nelson, their instructions were incomplete. This could have had a severe effect on the outcome of the trial.
It all boils down to the "initial aggressor" exception to the self-defense statutory scheme: according to Florida law, the right of self-defense is "not available to a person who initially provokes the use of force against himself," with a few exceptions. Naturally, the state asked the court to instruct the jury about the justification of self-defense with the inclusion of this "initial aggressor" instruction, arguing that, based on a certain interpretation of the evidence provided, the jury could reasonably infer that Zimmerman provoked a physical response from Martin, and therefore that the "initial aggressor" exception was at least relevant.
The defense team, of course, objected to this instruction, relying on a 2001 decision from the Fourth Division of the Florida Court of Appeals in Gibbs v. State, stating that initial aggressor exception is only applicable if the defendant provokes the victim's use of force through force or "threat of force." By referring to this case and implying that the court would be in error and potentially reversed on appeal if they granted the initial aggressor instruction, the defense was able to successfully convince Judge Nelson to strike the initial aggressor instruction.
The only problem? The reason why the defendant's conviction was reversed in Gibbs v. State was because the error lay in the delivery of the initial aggressor instruction (construed overly broadly), not the simple delivery of the instruction itself. As Burke notes, "A properly instructed jury should have heard the complete law of self-defense in Florida, not just the portions that helped Zimmerman. Had the jury been instructed about the initial aggressor exception, it might have concluded that Zimmerman's following of Martin, though itself not criminal, was reasonably apprehended by Martin as a 'threat of force.' Put another way, the jury might have concluded that Martin was the one acting in self-defense during the physical confrontation that preceded the gunshot, making Zimmerman the aggressor."
Note: This does not mean the jury would have necessarily ruled any differently. But jury instructions are highly critical in court proceedings; their incompleteness, specifically about such a relevant portion like the initial aggressor exception to the self-defense statutory scheme, poses a threat to the due process many have been celebrating in the wake of the verdict. Much of the conversation debating the relevant initial aggressor instruction should have been left to the jury to decide, not predetermined by the court.
To me, this analysis was precisely what I needed to turn a vague discomfort with the court's proceedings into a coherent criticism, not just of the court, but also of a lot of post-verdict sentiments. I can't help but notice that the Zimmerman trial verdict came a little over two years after the Casey Anthony trial verdict, with starkly different responses. Same state, relatively similar outcomes, and levels of media publicity: both were testaments to the importance of establishment "beyond a reasonable doubt".
Yet while one was met with almost universal outrage, the other has outrage counterbalanced with celebrations of due process and an intact legal system. Obviously, the victims and circumstances around both trials were different; however, I worry that the difference is rooted in a sentiment a friend of mine overheard at a restaurant in Florida.
"Trayvon had it coming, it's not like he was going to amount to anything anyway."
That is certainly part of the narrative that the defense took great pains to construct and, with omission of the critical initial aggressor instruction, they were that much more successful.