Yes, I said I wouldn't write about the George Zimmerman verdict, so you can now call me a big liar or smugly think to yourselves that you knew I couldn't stay away from the big legal topic dominating the news right now. But today it occurred to me that there is a huge part of the self-defense puzzle that has been missing all along. And if it hadn't been missing, based on Juror B37's interview, I believe at least a couple of jurors would have realized they could legally find against Zimmerman. In fact, I think the question they asked was really meant to ask about this missing piece, they just didn't have the legal knowledge of how to ask the question.
And now the legal pundits I'm watching on CNN are missing it, too! (Hey, CNN, over here! Hire me! I would actually know all the relevant law before pontificating! Oh, that's not what you want? Ok, then.)
Here's why I've been puzzled by this case all along, and why so many of my fellow defense attorneys are and were troubled by the verdict, or rather by the idea that Zimmerman isn't legally culpable here. Because in all this talk of self-defense, Stand Your Ground (which wasn't a factor in this case, btw), and whether George Zimmerman sincerely believed his life was in danger (which isn't the test for self-defense, btw), a key piece was missing. It's a piece that I and my defender friends around here just filled in because we know it. That piece is that the initial aggressor can't provoke someone to use force against him and then claim a right to use deadly force in self-defense. This is the horn book criminal law we all learned in law school. It is absolutely the law in Florida. See for yourself here, in Florida Statute 776.041. (That link actually includes all the self-defense statutes, for your edification.)
What I have always thought about George Zimmerman is that he followed Martin and initiated communication with Martin. This is consistent with Rachel Jeantel's testimony. (Sorry, Juror B37, I found her entirely credible and I have a higher opinion of her than I do of you.) I disbelieve Zimmerman's story as to the extent of the pummeling he took from Martin. I have seen what someone looks like in the immediate aftermath of taking the kind of pummeling to the head that Zimmerman describes. Zimmerman's two small lacerations to the back of the head aren't it. Frustratingly, Juror B37 agrees that Zimmerman exaggerated some things. She also stated that Zimmerman confronted Martin, not the other way around.
The problem is that Zimmerman wasn't terribly fit or a skilled fighter. Martin had the advantage of youth and fitness and got the upper hand in the fight. There is evidence that Martin was at one point on top of Zimmerman, but there is also evidence that Zimmerman was at a different point on top. So it was a scuffle that moved and that no one but those two saw the entirety of.
But there is at least evidence to support the idea that Zimmerman began the confrontation. Whether by words or threatening gesture or actual physical contact isn't known. But as long as he provoked a physical response by Martin either by an actual physical act or the threat of the use of force, he doesn't get the benefit of self-defense, at least not to the same degree. (Having been followed by a creepy guy, let me tell you, I found that in and of itself a threat of force.) You don't get to pick a fight, get beaten, and then kill the guy you picked the fight with all in the name of justifiable homicide.
The district court, though, fell for the defense argument that the initial aggressor instruction should not be given in this case. Quite frankly, the district court was wrong. To give jurors a proper understanding of self-defense, the initial aggressor instruction should be given. The case the district court relied on didn't say not to give the instruction; it just said that the jury should be properly instructed that the initial aggressor can't just say something inflammatory, for example, but has to either use force or threaten force.
From Juror B37's interview and her explanation of the question the jury asked about manslaughter, this was exactly what the jury wanted to know. They were wondering if self-defense only mattered at the actual instant of the shot, or if factors from earlier on should count as well. They were trying to get at whether it mattered who started the confrontation. They just didn't know the right language to invoke, so they asked a wishy-washy question about what does manslaughter mean.
Had I been on that jury, I would have known to ask why the initial aggressor instruction wasn't included. I probably would have asked, "If we find that George Zimmerman was the initial aggressor, does that limit his ability to claim self-defense?" Or something like that. This jury literally had no idea that the law in Florida is that the initial aggressor can't claim self-defense in the same way the non-instigator can. But it appears that at least one or two of them would have invoked that perfectly legal concept if they had only known of its existence. (I have no doubt B37 would still have voted acquittal, but she says there were others who wanted to find something but felt utterly hamstrung by the law.)
And now Juror B37 is calling for the self-defense laws to be changed. Which is frustrating beyond belief because THEY DON'T NEED TO BE! She isn't talking about Stand Your Ground, because the initial aggressor thing applies to that claim, too. (Stand Your Ground laws should be changed, but that really isn't the legal concept that kept the jurors from convicting Zimmerman.) What she is talking about is the idea that self-defense can be invoked at any time by any person without regard to what happened in the 5 minutes leading up to that decision to use lethal force. She is talking about the initial aggressor concept. She is talking about the completely valid portion of Florida law that she and her fellow jurors were totally unaware of because the district court didn't give them the entire self-defense picture.
I can't say that the verdict would have been different had the jury been fully instructed on all of the relevant self-defense law. But I can't say it would have been the same, either.