Understanding the Zimmerman verdict

An awful lot has been written and said about the Zimmerman verdict since my last post. Some of that has added to our understanding of Florida law, racial bias, and other factors that may have played a role, and some of it has muddled the issues. I've tried to understand what happened as best I could, and in this post I'll try to sort out what the best arguments are, what we know, and what we don't know.

Let's start where I left off. I mentioned that 2006 and 2011 court cases changed the burden of proof in self-defense cases in Florida, and that they made Florida unusual because the prosecution now has to prove beyond reasonable doubt that the defendant did not act in self-defense. This statement has been challenged. Eugene Volokh claims that all states except Ohio have the same rules for burden of proof as Florida. That is incorrect according to a criminal defense lawyer from Wisconsin and to lawyers.com, but Florida may not be that unusual, either:

The burden of going forward with a case varies in different jurisdictions. For example, in New York, the defendant has to prove an affirmative defense by a preponderance of the evidence. Compare this with Massachusetts where, after the defendant has satisfactorily raised an affirmative defense, the prosecution must disprove it beyond a reasonable doubt. 

The source for Volokh's claim seems to be a self-help book for those who plan to use the self-defense defense (which is, conceptually, rather creepy and oxymoronic), which does not give serious thought to the burden of proof:

This is of more concern to your lawyer than it is to you, so you won't see it discussed extensively in this book. But we mention it because it's something that you will eventually wonder about while studying the subject of self-defense. In all states except Ohio, the state has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

It is interesting—and troubling—that it is hard to find this information about state laws. But perhaps it doesn't matter so much what the rules for burden of proof are. We hear a lot of strange stories about jury verdicts in Florida, and I don't recall any similar stories from Massachusetts, which seems to have similar rules. After all, juries don't learn the rules by studying law, but from the instructions that the judge gives them. The details of jury instructions matter a lot.

Speaking of the jury instructions, many people have claimed that "stand your ground" (SYG) did play a major role after all: although the defense didn't make it a SYG case, the wording of the jury instructions was crucially influenced by SYG. This does not seem persuasive to me. The defense cited a pre-SYG court case during the negotiations about the jury instructions, and that seemed to influence the judge (and thus the instructions, and thus the jury) in an important way. Jonathan Turley explains in more detail why SYG had little or nothing to do with the verdict. What I find interesting, however, is the "lesser crime" part of the instructions, where the jury is instructed what it would need to convict Zimmerman of manslaughter.

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:

1. Trayvon Martin is dead.
2. George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin.

George Zimmerman cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide

(Emphasis mine.) But this is how the relevant Florida statute defines manslaughter:

(1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Note the absence of "culpable negligence" in the jury instructions and the explicit instruction that finding of "mere negligence" is not sufficient for a manslaughter conviction. This, in my opinion, is the main reason Zimmerman is free.

There is a well-documented history of revisions to the "culpable negligence" instructions in Florida case law, but I see nothing in that report about omitting such instructions completely. Once negligence was excluded as a possible basis for manslaughter, it is not surprising that the jury couldn't reconcile what they thought Zimmerman did with the elements of the crime as explained in the instructions, especially given the evidence actually shown in the trial. On the other hand, based on the infamous Juror B37's spilling of the beans and the later counter-spilling by Juror B29, it seems that several jurors at least believed Zimmerman had acted recklessly and may well have found him "culpably negligent" if that possibility had been presented to them.

There were several factors that contributed to the verdict: Florida laws are crazy, the prosecution overreached (murder was pretty much impossible to prove under Florida law) and then handled the case poorly (from jury selection to introducing the self-defense claim to ineptly selecting evidence to introduce), but most importantly, the judge's instructions to the jury favored the defendant by way of two significant omissions: they did not mention initiating the confrontation as an exception to self-defense or culpable negligence as a basis for manslaughter.

The possibility that the jury instructions are responsible for the verdict reveals a flaw in the US legal system. In the US, it is (as far as I know) not possible for the state to appeal a "not guilty" verdict. Although the defendant can appeal a guilty verdict on grounds that the judge's instructions to the jury were prejudicial against him or her, a symmetric appeal is not available to the prosecution. I understand and agree that asymmetry is necessary in criminal trials since the stakes are fundamentally asymmetric. The burden of proof is one area where asymmetry is obviously necessary. Asymmetry is also obviously warranted with regard to appeals based on ineffective counsel: it would be ridiculous for the state to appeal because its prosecutor did a lousy job. But it is by no means clear that the judge's conduct of the trial is an area that calls for a one-sided availability of appeal.

Zimmerman, self-defense, Florida law, and negligent pundits

First, the obvious and sensible: If an armed person (a civilian, not a police officer in the course of duty) pursues another and ends up killing them, that's at least manslaughter. The pursuit is the initiation of any conflict that may arise, so it is against every logic and moral intuition that the pursuer could be entitled to a claim of self-defense.

We are told, however, that there is something weird about the law in Florida regarding self-defense, and that the jury acted properly within that strange law when it acquitted George Zimmerman. But no article I've seen so far has stated properly what it is that is strange about Florida.

You hear a lot of people, mostly casual observers, blaming Florida's "stand your ground" (SYG) law. SYG is a sick and warped self-defense doctrine that removes the duty to retreat, which is normally part of the concept of self-defense. But SYG was not invoked in the Zimmerman trial. It's a bad law, but irrelevant for this case.

More careful pundits get closer to the real issue, but still miss the mark. They tell us the prosecution failed to prove beyond reasonable doubt that Zimmerman did not act in self-defense. They tell us, correctly, that it has to do with the peculiar institution that is Florida law. Here is Cohen:

But this curious result says as much about Florida's judicial and legislative sensibilities as it does about Zimmerman's conduct that night. This verdict would not have occurred in every state. It might not even have occurred in any other state. But it occurred here, a tragic confluence that leaves a young man's untimely death unrequited under state law. Don't like it? Lobby to change Florida's laws.

And here is Coates:

6.) I think the message of this episode is unfortunate. By Florida law, in any violent confrontation ending in a disputed act of lethal self-defense, without eye-witnesses, the advantage goes to the living.

That all rings true, but the explanations do not add up. Self-defense is an affirmative defense, which means it is not incumbent on the prosecution to prove beyond reasonable doubt that the defendant did not act in self-defense. The burden of proof, albeit with a lower standard (generally preponderance of the evidence, or "clear and convincing", depending on the jurisdiction), is on the defendant.

The fact that Zimmerman shot Martin was never disputed, and Zimmerman's 911 call is clear evidence that Zimmerman started pursuing Martin without Martin doing anything to him (or even being aware of his existence). I don't know about murder, but the prima facie case for manslaughter (which the judge instructed the jury to consider as an alternative verdict) is complete right there. The prosecution has no burden, under standard rules, to prove beyond a reasonable doubt that self-defense does not apply.

But, it turns out, the rules in Florida—or some part of it—are anything but standard, and that that goes back to a 2006 court case, Murray v. State:

Six years ago in Murray v. State, 937 So.2d 277, 279 (Fla. 4th Dist. 2006), the Fourth District Court of Appeal in Florida ruled that once a defendant in a criminal case has introduced proof that he acted in self-defense the jury is entitled to consider the defense, and the jury may not convict the defendant unless it finds beyond a reasonable that he did not act in self-defense.

(Bolded emphasis mine.) And now what makes this relevant to the Zimmerman trial:

Last year the Fifth District Court of Appeal quoted this language from  Murray and followed the same rule in the case of  Montijo v. State, 61 So.3d 424 (Fla. 5th Dist, 2011). (...) Seminole County, where Trayvon Martin was killed, is in the  is in the Fifth Appellate District, (sic) so the rule in  Montijo is controlling unless and until the law is changed.

That's what's rotten in the state of Florida! The nature of self-defense as an affirmative defense has been turned on its head by activist judges. In effect, in Florida (or rather, its 4th and 5th Appellate Districts, but the article also points to a proposed law change that would affect the entire state), self-defense has been turned into an ordinary defense.

It would have been nice if the pundits who have written about the verdict did their homework and explained this key fact to us.