Neither the duty to retreat under English Common Law nor pre-Florida “stand your ground” self-defense law would prevent lawful self defense under the circumstances described by George Zimmerman concerning the confrontation with Trayvon Martin.
A young, unarmed African-American man who President Obama said could have been his own son is killed in a public place at the hands of a mixed-race man armed with a hand gun. Within days, Al Sharpton, rumored to be a Man of the Cloth, ginned up racial animosity that incited Hollywood Director and New York Knicks fan, Spike Lee to tweet the Florida street address of the parents of the assailant.
After a police investigation, George “neighborhood watchman” Zimmerman, was appropriately charged with second-degree murder and pleaded not guilty based upon lawful self defense in the Florida case, which state’s legislature had recently passed a statute narrowing the circumstances under which a person confronted with violence must retreat:
Jury selection begins [today] in the Orlando suburb of Sanford, Fla., the scene of massive protests by people who were angered that police waited 44 days before charging Zimmerman with second-degree murder. Other demonstrations were held around the country, and the case drew worldwide attention as it fanned a debate about race, equal justice under the law and gun control.
There is no dispute Zimmerman shot an unarmed Martin, 17, during a fight on a rainy night in February 2012. Prosecutors will try to show the neighborhood watch volunteer racially profiled the black teenager, while Zimmerman’s attorney must convince jurors Zimmerman pulled his 9 mm handgun and fired a bullet into the high school student’s chest because he feared for his life.
Zimmerman is charged with second-degree murder. He says he shot Martin in self-defense. If convicted, Zimmerman, who identifies himself as Hispanic, could get a life sentence.
So, obviously Zimmerman is a racist killer that will be acquitted due to the Sunshine State’s “Stand Your Ground” law? Not so fast.
This case turns on whether the state can prove beyond a reasonable doubt, via only circumstantial evidence (unless a new witness comes forward that claims to have seen the actual start of the specific confrontation that led to Martin’s death), that Zimmerman initiated hostile physical contact. If so, then he would lose his right to claim self defense, no matter the narrowing of the duty to retreat by the new state law. That Zimmerman followed Martin is not enough, per se, to deprive him of his right to self defense. In fact, the Defendant’s attorney Mark O’Mara earlier decided not to invoke a “stand your ground” hearing in which a judge alone would decide whether to dismiss the case or allow it to proceed to trial.
There also appears to be Facebook page evidence that could bear on Trayvon Martin’s character which contradicts the initial narrative advanced by the prosecution, Martin family members, Sharpton, Barack Obama and the mobs in the streets that he was an innocent teen. But such character evidence of drug use and violence will most likely be excluded as irrelevant.
In general, “general” character evidence is only allowed to impeach a witness’s credibility if they testify or if the State introduces evidence of the witness’s good character. Trayvon will not be a witness. There are exceptions in cases involving theft or in showing one’s inclination to act in a certain way, but only in very narrow circumstances and even then only if the other side opens the door. But in this case, one would have to have evidence of a very similar past incident in which Trayvon started a fight, and even then it would most likely be excluded as being more prejudicial than is its probative value as to what actually happened in this incident. One does not want to clear the way for people with past bad acts to be open season for others wanting to start fights with them.
Finally, one has no duty to retreat under pre-stand your ground Florida law if another initiates threatening physical contact, even in a public place. Nor is one prohibited from using a gun for self defense, subsequent to the stating of a fight by an unarmed assailant, if one’s life is threatened later on in the particular confrontation. Witnesses apparently will testify that Martin managed to get on top of Zimmerman and was pounding his head on the ground, which action was a threat to his life.
Therefore, this case turns on whether a unanimous jury can conclude, beyond a reasonable doubt, that Zimmerman initiated the physical confrontation, based solely upon circumstantial evidence. Not race and not the Stand Your Ground law.
[Mike DeVine has defended hundreds of criminal defendants in state and federal courts.]
“One man with courage makes a majority.” – Andrew Jackson
Editor of Hillbilly Politics
Atlanta Law & Politics columnist at Examiner.com
Front page columnist for Liberty Unyielding and Western Free