Law Sometimes Matters: Zimmerman Jury Instructions Were a Mandate to Acquit

Dear Virtual Editor:

JudgeDebraNelsonI have hesitated to comment on the Trayvon Martin trial. It raises difficult issues for a progressive white southern attorney who has tried and studied murder cases and sought to make the law work.  Media coverage, talking heads and all, has demonstrated an understanding of the role of the law in murder trials that is marginal at best.  The public has little incentive, especially in high profile cases, to go further into the law than the highlights presented by media.  I have decided that I can perhaps contribute something worthwhile by attempting to translate the trial process, particular the jury instructions, into generally understandable language.  There is no way to do that briefly, but I will try.

It is not difficult, of course, to see the role of race in the death of this young man. As one commentator remarked, “George Zimmerman knew it wasn’t Justin Bieber in a hoodie he was following.” But to one familiar with the process of attempting to transfer events from the street to the courtroom, that cannot be the only story, important as it is. There is another story of the Zimmerman trial and it is about law and respect for life. It is about the state of the law and what that says about what one of my favorite Supreme Court Justices termed “evolving standards of decency that mark the progress of a maturing society.”

First, understand that every trial is an imperfect attempt to recreate a past event. The complete reality of that event is gone forever.  The verdict, or “truth”, is only functional truth at best, something we can live with and go forward, knowing we did the best we could in a fair process.  The state of the law and the conduct of all the trial actors have an impact on how close trials come to that functional truth. Some lawyers are better than others. Much better. Some jurors pay attention to jury instructions, some do not. Some jury instructions are written or delivered in a way that tells the jurors what their verdict should be.  To those jurors who do attempt to follow the instructions, the law contained in them can be quite important.  One can never know for sure, but the Zimmerman jurors apparently took their instructions seriously. If so, the prosecution was doomed to fail. These instructions were a mandate to acquit, and the fact that they contained Florida’s Stand Your Ground provisions was probably not even the most compelling part of that mandate.

DebraNelson_Counsel_ZimmermanTrialIt was reported that prosecution and defense fought over every word of the jury instructions. If so, the prosecution lost badly. In fairness, I do not know what the attitude of Judge Nelson was in chambers.  However, I knew from watching defense counsel Mark O’Mara in preliminary proceedings that Mr. Zimmerman was going to be very ably represented. The poor are often not that fortunate.  Further, unlike the usual murder trial, the defense had access to the resources necessary to investigate and present its case. That is not the lot of the usual murder defendant.

Of paramount importance, self defense was apparently accepted by all parties as the defining issue in this case.  Once that happened, Zimmerman was halfway home.  Based on my own murder trial experience, systematic study of hundreds of others, and assisting defense counsel in capital cases, I have given generations of law students this advice: “If you are defense counsel and your investigation does not raise the issue of self defense, go back and investigate some more.” I don’t recall having any of Mr. Zimmerman’s defense team in my class, but they seem to have gotten the message from somewhere.

The Zimmerman jury instructions were, hands down, the most bizarre I have ever seen.  In the first place, an accused is not entitled to an instruction on the law of self defense just because he made out of court statements that he killed in self defense.  A trial judge is required to instruct the jury on the law applicable to every issue fairly raised by the evidence at trial. It is possible that reasonable inferences from other evidence can fairly raise the issue of self defense.  Usually, however, the accused has to testify, subject to cross-examination, that at the moment he killed he was actually in fear of death or great bodily harm (more than simple assault) and believed that it was necessary to kill in order to save himself from that.  A jury is then able to assess his testimony compared to other evidence, as well as his demeanor and decide whether he really did fear for his life and if so, whether the circumstances at the time made that fear reasonable.  Only if they decide that the answer is yes to both questions is a killing to be excused as self defense. Zimmerman got a self defense instruction in spite of not testifying.  I do not know whether, or how forcefully, prosecutors argued that he was not entitled to an instruction on self defense at all. I certainly would have given that argument a try.

CommonLawYou will see the in the jury instructions that the self defense test that I have described is buried in them somewhere. The requirements for self defense are a pro-life formula, expressing the policy: “Don’t kill anyone unless you have to”. It has been that way for centuries.  In US and English common law it goes back to Henry II in the twelfth century.  Then, self defense was categorized not as a justifiable killing, but excusable. The rules reflected regret for loss of life even if the killing was not condemned as murder. For years, those who received the King’s pardon because of self defense were still fined and required to forfeit their personal property.

There was one other significant pro-life requirement for self defense. The excuse was not available if the slayer had a reasonable opportunity to retreat without killing.  This, and indeed much of the English common law of crimes, has been preserved without much legislative modification, more in the southern US than in other regions of the country. So it is ironic that the Florida legislature, in a phony fit of machismo, chose to delete this protection by passing Stand Your Ground.

End of history lesson. Please stay with me. (And let me know if I am speaking too rapidly for those of you who are taking notes.)


As we go through the Zimmerman jury instructions, you will see the common law requirements for self defense that I have explained, minus only the retreat requirement. A question not addressed by media coverage of the trial is why Zimmerman should not have been convicted for failing this basic test, regardless of Stand Your Ground?  I think the answer may well be that the instructions, viewed as a whole, buried those requirements and sent an entirely different message to the jury.

If you are still with me, one more comment about a part of Florida law that could be more important than Stand Your Ground. Then, I will describe each homicide instruction and comment briefly on it.

Every jury instruction I have seen opens with a statement of the elements of the charged offense that the prosecution must have proven beyond a reasonable doubt to justify a verdict of Guilty. These include the conduct, and mental state of the accused and other circumstances that the legislature has defined as a particular crime.  Then, any defensive matters recognized by the law are explained.

Some of the defenses, “I didn’t do it” for example, cannot be true if the prosecution’s evidence of the elements of the offense is true. So, the prosecution has to prove beyond a reasonable doubt that your alibi is phony and you really did it. Jurors are instructed that reasonable doubts about this are to be resolved in defendant’s favor.  Contrary to popular belief, alibi is not a defense for the accused to prove. Identity is an element for the prosecution to prove.

Self defense, however, is something that can be true even if the prosecution’s evidence is also true.  The murder charge may be that I intentionally shot someone to death.  The jury may be completely satisfied that this is true, but if it is also satisfied that I met the self defense tests, I am to be acquitted.  In fact, most who kill in self defense intend nothing else but to kill. After all, they have an actual and reasonable fear that if they do not, they themselves will be killed.  (Any of my students reading this will cringe at the lame way I tried to explain this difference by analogy to the early video game, Space Invaders.)

GeorgeZimmermanThe Supreme Court has said that the prosecution must always bear the burden of proving the statutory elements of a crime beyond a reasonable doubt.  But as to those defenses that do not negate the truth of the elements, it is perfectly OK to make the defendant satisfy the jury that they are true. OK, but not mandatory.  In Florida, even in this trial where Martin is dead and Zimmerman doesn’t testify, Zimmerman did not have to prove that he acted in self defense. The prosecution had to prove somehow that he did not.  In other words, jurors were told that if they did not know whether Zimmerman acted in self defense, they were to acquit.

Stand Your Ground and efforts to repeal it have gotten all the press.  For jurors who try to follow instructions, who has the the burden of proof on self defense is a bigger deal.

The Zimmerman instructions were in no way standard. They begin with defenses and keep the focus on defenses throughout.

Instruction The first piece of law the jurors got was that the killing of Martin was justified if it was necessarily done while resisting an attempt to murder or commit a felony on George Zimmerman. That is followed by an instruction that a killing is excusable if it is committed by accident and misfortune in the heat of passion on sudden adequate provocation.

Comment At this point, jurors have not even heard the elements of the offense when they are introduced to two ways out for Zimmerman.  That second instruction is also an example of what jurors were not told. They were not told what “accident and misfortune” means, though the instruction requires that and heat of passion on sudden adequate provocation.  Much more importantly, they are not given any instruction about what they may find or not find as circumstances relating to sudden and adequateprovocation—something that should have been critical to their deliberation.

Incidentally, do not worry if you have any trouble processing this instruction. You will see it again.

Instruction Now the jurors are told about the elements of second degree murder. They are instructed that the prosecution must prove that Zimmerman killed Martin by an imminently dangerous act demonstrating a depraved mind without regard for human life. A definition of “depraved mind” is offered: the deadly act is done from hatred, ill will or spite- or an evil intent, and is of such a nature that the act itself indicates indifference to human life.   Finally, the instruction is that the prosecution does not have to prove Zimmerman intended to kill Martin.

Comment Part of what the common law has left us is juicy but vague terms like “depraved mind” and “evil intent”.  Florida is not the only jurisdiction to put them to jurors without definition or with a definition that is as unhelpful as the term itself.  Not all jurisdictions, however, pay so little attention to ands and ors.  I did my best to teach my students to pay close attention to them. Picture yourself as a conscientious juror. Look at the instruction again and try to determine exactly what the prosecution had to prove.  At the end of the day, however, neither the instruction about intent to kill nor the definition of depraved mind really matters. If the prosecution could not disprove self defense, Zimmerman was entitled to acquittal whether he intended to kill, was indifferent, or had some other mental state.

Instruction The next homicide instruction is on manslaughter. Jurors are told that the prosecution must prove that Martin died as the result of intentional acts by Zimmerman. Although the difference from intent to kill was not mentioned, note that this requires only that Zimmerman intentionally did an act that resulted in Martin’s death—not that he intended the death.  The literal instruction does not even require proof that the act was unlawful, that is, not in self defense.

Not to worry. The next instruction is that there is no manslaughter if the deadly act was merely negligent, a violation of the duty we all have to be careful toward one another, without any conscious attempt to do harm. Then, after repeating the “justifiable” and “excusable” instruction about accident and misadventure and resisting a felony against Zimmerman, etc.(see first instruction and comment), the instruction raises a critical question:JudgeDebraNelsonInstructions“OK judge. If mere negligence doesn’t equal manslaughter, what does?”  The answer: To prove manslaughter by act, the prosecution must prove intent to commit an act that was not merely negligent, justifiable, or excusable.

Comment “Thanks a lot, judge. Defining by negative reference makes this really interesting.  Does this mean when Zimmerman pulled the trigger, anything between negligence and depraved mind equals manslaughter?”

I am not a Florida law expert, but I should note that this is also not common law manslaughter. That offense reduced what might otherwise be murder to a lesser felony if the killing was done in the heat of passion in response to sudden and adequate provocation. That felony has apparently been elevated into a complete defense in Florida. (See first instruction)

Instruction Now we get to the common law formula for self defense that has come down over the centuries. It is given here under the heading “Deadly Force”, but the jurors are accurately instructed that Zimmerman must have actually and reasonably believed at the time he killed that he had to do so to prevent death or great bodily harm.

This instruction concludes with the now famous Stand Your Ground law. I set it out here in part because some right wing commentators have continued to state erroneously that the law was not part of the trial: If George Zimmerman was not engaged in any unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.

This instruction concludes by placing the burden on the prosecution to disprove self defense, the coup de grace for the prosecution.

Comment You can see that Stand Your Ground is simply common law self defense minus the requirement to retreat before killing if it is safe to do so.  I should also mention here that in some jurisdictions, after reminding jurors that they are the sole finders of fact, the trial judge will summarize some of the evidence presented by both sides that may be relevant to the legal terms in the instruction. I was often uncomfortable with this in my trials, especially with a prosecution-oriented judge, because I feared that jurors would forget that they were free to find facts and give weight to evidence differently than the authority figure to whom they had looked throughout the trial.  In the Zimmerman trial, however, I think it would have been helpful for Judge Nelson to identify evidence that might be found relevant to actual reasonable fear, adequate provocation, and the like.  For example, as a juror, if I find that Zimmerman disregarded police instruction not to follow Martin and followed him anyway in part because Martin was black, was Zimmerman still “not engaged in any unlawful activity”?  Does “meet force with force” have a proportionality component?  If I find that Martin attacked Zimmerman with his fists or a bag of skittles and Zimmerman shot him dead, is that “force with force”?  Is an attack with fists a forcible felony in Florida?

Instruction and Comment The remainder of the instructions are pretty much boiler plate, found in every criminal trial and I see nothing wrong with them.  The last instruction given begins: Even if you do not like the laws that must be applied, you must use them.

Final Word Thank you for your patience and attention. There will not be an exam.  I have offered the view that this trial was likely one of those in which the law mattered; that the jury instruction was a mandate to acquit; that Stand Your Ground devalues life for no defensible reason; that reform efforts in Florida might be more productively directed at putting the burden of proving self defense back on the accused where, in spite of my forty years as a defense counsel, I think it belongs.

stand-ground-map copyThe important thing, however, is not what I think but how much you are willing to learn about and become involved in the making of the laws that affect your life and your community. I am not talking about going all professorial on your friends and family.  I am only recommending going beyond the sixth grade sensationalism you get in crime news generally, and Nancy (Dis)Grace in particular,  and learning some basics.  I know from my ignorance and shortcomings in other fields that this takes a bit of effort.  I am so mechanically and technically challenged, for example, that I have proven many times that if I was not a lawyer I would probably starve.  But when matters outside my knowledge base begin to impact me personally or affect the sense of community in which I believe so strongly, I pay attention and try to learn something about them.

The bitterly divisive reactions to the Zimmerman trial result demonstrate quite clearly that, at present, we are definitely not all in this together.  We need to confront the deadly combination of racism and machismo with persistence and the dignity demonstrated by Trayvon Martin’s family and the crowd outside the courthouse that did not turn to violence when the verdict was announced.  Understanding a little about law and the difficulty and imperfection of recreating a human event in the artificial setting of a courtroom is a small but important part of defeating that racism/machismo combination. I hope I have been of some help.


Facebook Twitter Email

Comments are closed.