‘The Jurors Erred’ Anthology: State (of Florida) v. Zimmerman

About the Collection

“The Jurors Erred” anthology will include commentary about the outcomes of proceedings that were, in my opinion, erroneous as a matter of law or as a matter of morality, or both. Many of the proceedings in the collection would have been publicized by the media, but I will even include those that are discussed in remote legal corners of North America (Canada will not be neglected). The collection will contain both criminal matters and civil matters/litigation. As I diligently attempt in all of my posts, I’ll share my commentary in plain English—I will try—but I cannot guarantee the absence of legal jargon. Keep in mind that I have not compiled erroneous outcomes because they were later overturned by appellate courts (although I may include such cases in the future); instead, this collection will be composed of cases that were erroneous in their outcome by virtue of opinion.


Three reasons why the outcome in this case is a problem:

First. There was an error as to the law—if the error did not involve both an interpretation or applicability of Florida’s self-defense statute(s) and case-law, then the error certainly involved case-law alone—in the self-defense instruction. Second. The impartiality of the fact-finder—a juror in this proceeding—was likely undermined in jury selection when a juror expressed gratitude to defense attorney Mark O’Mara for giving his explanation of the law; partiality, especially in the truth-seeking function of the trial of facts, is certainly a cause for appeal—it is certainly a concrete concern on which to have the judgment vacated (or “lifted” in non-legal terms), and a re-trial to be mandated by an appellate court. Third. Juror B37, during an interview with CNN’s Anderson Cooper, admitted that the “roles changed” when she asked the question “who do you think the aggressor was?” Juror B37 then elaborated by explicitly saying that the victim had been followed, “… and then Trayvon became angry and aggressive” (which, to my conjecture, means that the aggressor was initially the Zimmerman, and then the “roles changed:” Martin became the aggressor). Juror B37’s admission is important because it is relevant to the case-law surrounding self-defense.

I will first offer an examination of the case-law from the Court of Appeal for the Armed Services, from a troubling case in which the defense of self-defense was invoked. I find it essential to note that the case-law in other circuits is not binding on state courts in Florida (in other words, the rulings of the appellate court for the Armed Services need not be honored by Florida state courts); I will then share my thoughts on Juror B37’s answer to a contentious question on CNN’s Anderson Cooper; and, finally, I will discuss the importance of impartiality in jury trials. Before I write further, I must confess that at the time of starting on this post (moments after the verdict was announced), I didn’t have access to record/the jury instructions—“instructions” are statements conveyed from a judge, and to the jurors, about the law relevant to the criminal proceeding—so I have not the slightest clue what self-defense instruction contained. As such, the opinions, here, about the purported error are quite tentative. It is also worth mention that any error as to the law is not exclusively the fault of the jury: rather, the error often originates from the presiding judge who would have made the error when instructing the jury; in other words, technically, if the jury is found with a basket of rotten apples (law), it was plausibly because the jury received the spoiled apples from the presiding judge—a jury usually does not conceive an error as to the law. Admittedly, the title of this collection is somewhat misleading in that respect.

(1) The “Iceberg” of Self-Defense Law

I will begin with the case-law in the Armed Services circuit—again, to remind lay readers, the decision I cite here is not binding (the Florida trial judge was not required to instruct on this) because it is not the law in the circuit, but the same reasoning can, nonetheless, be used to make an argument. The U.S. Court of Appeals for the Armed Services—a tribunal composed of civilian judges, not military judges—ruled to uphold a court-martial conviction in an appeal where the appellant, a lieutenant, was the “initial aggressor” (opinion of the three-judge majority). While serving in Iraq, Michael Behenna shot and killed an unarmed detainee, Ali Mansur, during an interrogation he conducted without authorization. The non-military appellate judges found that Mansur’s alleged aggressiveness (attempting to strike Behenna with a chunk of concrete and reach for Behenna’s firearm) is not probative or valuable, because Behenna was the initial aggressor: “even if we assume that Mansur lunged for [a]ppellant’s pistol and [a]ppellant feared that Mansur would use the pistol if he was able to seize it, because [a]ppellant was the initial aggressor… [a]ppellant lost the right to act in self-defense… .” (majority opinion). The opinion further held that Mansur’s aggressiveness was a reaction to circumstances in which Behenna had all of the control, not Mansur. Mansur was involuntarily blindfolded; Mansur was involuntarily transported to a remote location; and, Mansur was involuntarily stripped of his clothing except for sandals. Conclusively, it was Behenna who “brought about” the circumstances “that resulted in the necessity to kill another” (majority opinion). The majority emphasized that, regardless of whether both parties were aggressive, the initial aggressor was the defendant—and that role, in and of itself, precludes the defendant’s entitlement to self-defense. I find it particularly important, especially here, that the majority opinion stated “[the accused] brought about a [situation] that resulted in the necessity to kill another.” To elaborate, although it may have been necessary to fire upon Mansur when he was attempting grab the firearm, it only became necessary to do so because of Behenna’s conduct—because Behenna defied an order, which was to return Mansur to his dwelling; because Behenna led Mansur and the convoy to a secluded area; because Behenna blindfolded and stripped Mansur; because Behenna verbally threatened Mansur with his life; and, because Behenna withdrew the firearm and aimed it at Mansur.

What seems quite analogous between Behenna’s case and what transpired between George Zimmerman and the victim, Martin, is that the both parties were, evidently, aggressive at some point during the ordeal. However, Zimmerman, I argue, was the initial aggressor by virtue of the surveillance and approach: he followed, by vehicle, and approached, after exiting the vehicle, the victim. The reason for the resulting fracas between Zimmerman and the victim, before the victim’s death, was because Zimmerman approached someone who had been exercising his liberty to go on about his routine without impeding on the liberties of another. It was Zimmerman who created a situation that resulted in the necessity to take the life of the victim—not the victim, who might have been responding to what he believed to be an impending dangerous confrontation with a stranger. Had it not been for Zimmerman’s erroneous judgment to follow and approach the victim, the victim would have safely reached his destination (given no other impediments); were it not for Zimmerman’s conduct, the violent outcome would have been prevented. Again, Zimmerman instigated the sequence of events that resulted in the unfortunate loss of life. Regardless of whether it was necessary, at some later point, to discharge the firearm into the victim (and regardless of whether Zimmerman felt threatened by the physical altercation), Zimmerman instigated the entire ordeal, and as such, he cannot be entitled to a self-defense instruction.

Zimmerman proponents would probably refute my arguments by citing Zimmerman’s contention that the victim was being suspicious. And I would refute such a contention. According to juror B37, the suspicious conduct purported by the defense was that the victim had been “stopping to look around at homes;” the victim had been meandering (“walking with no sense of where he was going” in the words of the juror) “on a rainy night.” First and foremost, there is absolutely nothing to corroborate these contentions, and reverse onus would require the defense to yield proof as to the purported reasons for suspicion—for all we know, Zimmerman pursued the victim merely because his head with covered with a “hoody.” However, assuming Zimmerman’s account was truthful; there was no reason to be suspicious. The only detail that is remotely suspicious was that the victim stopped, on a few occasions, to look at homes; yet, unless someone walked onto private properties, and peeked through the windows (a “peeping Tom”), how is that suspicious? The victim could have been looking around to establish a sense of direction, by recognizing familiar landmarks or buildings: firstly, the victim was unfamiliar to the neighborhood (Zimmerman even admitted to not recognizing him); secondly, the victim had been meandering about, apparently “with no sense of direction,” which suggests that he was lost/unfamiliar with his surroundings. I may be downplaying the significance, but citing weather—that it was raining—as a reason to be suspicious of someone’s presence is not only frivolous, but it is most certainly, as this tragedy attests, dangerous. If such doings can be deemed suspicious, then I am left to wonder what host of other harmless conduct can be included in that characterization. It is as if the standard of suspicion has been reduced to “nonexistent”—that, in essence, anything you do, and the time at which—or the climatic conditions in which—you leave the security of your home, can be suspicious.

(2) A Juror’s Contradiction

On the 15th of July, Juror B37 appeared in an interview with Anderson Cooper. When asked “who do you think the aggressor was?” she responded by stating: a. that the role of the aggressor “changed;” b. that, initially, the aggressor was the defendant, Zimmerman; and c. the remaining five jurors had the same opinion. It is perplexing that the five jurors, even after finding that Zimmerman was the aggressor who initiated the entire ordeal, voted to find that he acted appropriately. If they had voted to absolve him because the state’s evidence had not met the standard of proof—beyond a reasonable doubt—to secure a conviction, then one might find some satisfaction there. However, the state’s case met the standard of proof because, despite the unanswered questions, there is no reasonable doubt with regard any to the elements to befit the crime with which Zimmerman was charged. First, there is no reasonable doubt as to who pulled the trigger; second, there is no reasonable doubt that the entire ordeal occurred in the spur-of-the-moment, because Zimmerman had not calculated and planned the ordeal beforehand (hence, murder-in-the-second-degree); and third, there is no reasonable doubt as to whose conduct—Zimmerman’s or the victim’s—initiated the ordeal. Juror B37 and her colleagues, again, conceded that Zimmerman was the initial aggressor, and that is all that matters. Connect all the dots: Zimmerman had intent by simply pulling the trigger—there is no doubt that he had done so—; Zimmerman had acted in the spur-of-the-moment when he approached and confronted the victim—there is no doubt that he had acted in such manner; Zimmerman started the sequence of events resulting in death—and there is no doubt that he did so. It does not matter that the victim subsequently, that is, after Zimmerman, became aggressive; it does not matter if the victim was reaching for the firearm, as Zimmerman asserted; and it does not matter which one was atop the other, something that was robustly and endlessly disputed at trial. The answers to the unanswered questions do not change the fact that: a. the initial aggressor was Zimmerman, b. the conduct occurred in the spur-of-the-moment; c. intent existed on the account of Zimmerman discharging the firearm, at point-blank range; e. because the Zimmerman was the instigator/provocative, he is not entitled to self-defense; and therefore, d. Zimmerman is criminally liable for the consequential loss of life.

Again, to emphasize, Juror B37 revealed that she, and five other jurors, believed the aggressor, initially, was Zimmerman; despite such belief, the entire jury concluded that Zimmerman was entitled to self-defense because Zimmerman’s initial aggression subsequently provoked the aggression from Martin? If that is what the jury believed, they have sanctioned ‘murder-by-provocation’ (obviously fictitious). The outcome seems completely contradictory to the reasoning of the majority of the judges in Behenna’s appeal. The reasoning in support of the ‘Behenna majority’ is not ingenious or novel: one cannot harass, pursue or provoke another, to induce the other to become aggressive, and then, climactically, in the heat of the moment, maim or deprive the person of his/her life under the guise of self-defense. That would be legally-sanctioned murder; and I am almost certain that is not what the Florida state legislature, or any state legislature in the union for that matter, intended when it voted to enact a self-defense statute.

(3) Impartial Fact-Finding

Piecing together the facts-of-the-matter, especially in complex and lengthy matters, is a particularly meticulous process that requires an elevated attention and commitment to detail. An impediment to the proper utility of a jury—fact-finding and, ultimately, determining the truth of any matter—is partiality. Partiality can manifest in several ways—owing to the rigor of jury selection, the least likely manifestation would be that a juror has a familial or occupational relationship with a party. But even after jury selection is adjourned, an empanelled juror may lose his or her impartiality, or, in lay terms, become “fouled” or “polluted.” In such case, the result would be a partial verdict because one, or many, juror(s) would have rendered a vote made on considerations other than considerations of the testimonies, counsel’s monologue, and instructions—as indicated on the record—presented before him/her/them. Improper considerations can include anything other than the items on the preceding list (although the list is not exhaustive). During the post-verdict press release, defense attorney Mark O’Mara was asked by a reporter (I’ve lapsed to remember her name) about his interaction with a juror—a juror specifically showed gratitude to O’Mara for “[his] explaining of the law.” It was a question to which O’Mara replied “I don’t remember someone coming up to me and saying ‘thank you’… .” Not surprisingly, O’Mara refused, unimaginatively in my mind, to even suggest that a juror’s impartiality was lost. (He could have whipped-up a better response than the typical “I seem to be suffering at the onset of degenerative amnesia” and so “I don’t remember [something that happened two months ago.]” or perhaps the attorney is in a state of denial because of regression? I’m not a psychology major.)

Why is this significant? So what if a juror said something along the lines of “thank you for explaining the law?” It does matter. It occurred during jury selection. That juror had a favorable and partial opinion of the defense counsel, before being presented with the case’s discrepancies and being entrusted with her fact-finding task. Even if the expression of gratitude had no conscious influence on decision-making of that juror, it must have had an unconscious influence: perhaps it rendered her predisposed to finding in O’Mara’s favor. The nature of that juror’s interaction made it more likely for her to accept the defense counsel’s contentions, regardless of substance. The very reason for isolating jurors out-of-court, and for the duration of the proceeding, is to avoid exactly that sort of impropriety—interactions that result in a juror voting on the basis of first impression, without being presented anything, and not on the substance of the counselor’s oration and other due considerations.

Granted, there is seldom a jury pool that consists of completely neutral jurors, because, often, the jurors’ backgrounds make them innately biased—the purpose of jury selection is to “weed-out” those whose biases are so great that such biases may unduly skew the outcome, and detracts from the “fair” aspect of the trial of facts. However, the issue here is not the nature of a juror; instead, the issue involves an improper interaction that rendered an-otherwise-impartial juror, partial. Had that one juror been impartial, the result could have been a mistrial (and potentially re-trial), instead of an acquittal brought about through undue influence. A six-member, uni-gender, jury with a spoiled juror is not at all fair.

(4) Conclusion

To conclude, if this outcome has demonstrated anything, it is that from time to time justice has its hiccups. Zimmerman should not have been acquitted: through the case-law I’ve cited here, Zimmerman cannot be entitled to self-defense; it was revealed that a juror—at least one—eroded her impartiality through improper interaction with the defense counsel, which likely caused her to shade her view in favor of the defense before the trial commenced; and juror B37 found that Zimmerman acted appropriately despite the belief that he was the initial aggressor; the case-law in another circuit is, and correctly held in my view, that such aggressors cannot be entitled to self-defense. Although acquittals are seldom reviewed, I believe those are compelling reasons to do so here—a remedy for the hiccup is my recommendation; it is the closure of which the victim’s family is deserving, and the observance of law and righteousness to which Trayvon Martin is entitled.



© 2014 THE ADVOCATE’S GAVEL (licensed under CreativeCommons)