Trayvon Martin’s killing – a politically charged tragedy, but still a question of self-defense

I haven’t weighed in on the Trayvon Martin "matter" (It isn’t officially a "case" because George Zimmerman has neither been charged nor sued, yet.) because I don’t know enough about the underlying facts. Oh sure, I’ve read some blogs and heard the various opinions, most of which have been tainted by political perspective. I am aware that to some, the Martin matter is another example of racial prejudice and paranoia, profiling, lackadaisical gun laws, vigilantism and the extreme consequences of "right wing" pro-gun policies like "Stand Your Ground". To others, I know it seems yet one more example of political grandstanding, "left-leaning" correctness run-amok, blame the victim, reverse discrimination and opportunistic rushes to judgment. To me, though, at this point, it is simply another tragedy; a dead 17 year old, a family man forced into hiding, another family in mourning. Really, that’s all I know until we learn more and/or until the facts are brought to light not in the court of public opinion, but in an actual courtroom. Within this last context, though, having prosecuted and defended many assault and murder cases where self-defense was claimed, what I do know, as both a former homicide prosecutor and a current criminal defense attorney, is the law on self-defense. For that reason, it is interesting to hear pundits and prognosticators "spin" their views and perspectives on the so-called facts in directions that reflect no understanding of how self-defense is actually claimed and/or proven.

First, let me state the obvious. Unless or until he is charged with armed assault, manslaughter, or murder, George Zimmerman doesn’t have to claim anything, and were I advising him as an attorney, I would make darn sure he wasn’t talking to anyone in authority without me being present and without me having vetted and approved everything he was going to say (about the incident) before he says it; and even then it’s a big maybe that I would advise him to "talk". After that, though, if he is formally charged, it would then be incumbent upon him to assert (provide formal notice to the prosecution of) his affirmative defense of self-defense. Once that is done—and here is where the oppinionistas on both sides don’t understand the law—the burden shifts solely to the prosecution to prove to a jury beyond a reasonable doubt that the defendant did not act in self-defense. This burden involves proving any one of a number of different elements in most jurisdictions, each also beyond a reasonable doubt. First, that the defendant did not reasonably believe he was being attacked, or about to be immediately attacked and that his safety was not in immediate danger; or second, that the defendant did not do everything reasonable (including retreating, except in most jurisdictions from ones’ home) to avoid physical combat before resorting to force; or third, that the defendant used more force than was necessary to defend himself than was reasonably necessary under the circumstances.

From what I have read so far, this second element appears to be the fulcrum of a lot of the current debate in the Martin matter; whether or not Florida’s "Stand Your Ground" legislative override of the Common Law "Duty to Retreat" (now being debated in the Massachusetts State Legislature) was the proximate cause of the shooting. This focus, too, belies a profound ignorance of the law on self-defense and supports my contention that the Matter is being hijacked by political agendas on both sides of the debate since there is no question that Zimmerman used deadly force ("force intended to cause death or great bodily harm...[or]... used a dangerous weapon in a manner intended to cause death or great bodily harm") and so far, no question that Martin was unarmed. In other words, because deadly force was allegedly involved, the prosecution’s burden changes slightly. Instead, the prosecution must now prove one of the following elements beyond a reasonable doubt. First, that the defendant did not reasonably and actually believe that he was in immediate danger of great bodily harm or death; or second, that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force (again, that Duty to Retreat); and third, that the defendant used more force to defend himself than was reasonably necessary in the circumstance. Since the prosecution need only prove one of these three elements beyond a reasonable doubt in deadly force case, the whole Duty to Retreat vs. Stand Your Ground debate is probably superfluous as any experienced prosecutor will likely focus on this last element to establish beyond a reasonable doubt that the defendant did not act in self-defense, given a scenario where an unarmed 17 year old is shot and killed by a fully armed rent-a-cop. Yes, I’ve "heard" Martin was 6’2" and may have punched Zimmerman and possibly slammed his head against the ground too, but I have no idea whether there is either basis or truth to any of that or whether that is simply rumor masking as innuendo, and frankly, that’s all the more reason why we have jury trials in America; to separate fact from the opinion, prejudice, bias, conjecture and/or surmise.

The good news is, if the case is charged, the facts will come out, and when the facts do come out, the jury will be instructed to decide not on the basis of opinions and prognostications from either the Left or the Right, but solely on the evidence and on the basis of the law on self-defense. I may not know enough about the underlying facts in the Martin Matter to offer an opinion today, but I do know this as a veteran trial attorney – It’s that last element on which the case and the fate of George Zimmerman almost certainly will hang: whether or not the prosecution has proven beyond a reasonable doubt that the defendant used more force to defend himself than was reasonably necessary in the circumstances. Period. Unless or until we reach that point, everything else being said is nothing but a lot of sound and fury that ultimately signifies nothing in terms of the Matter, itself.

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828

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