Mr. Zimmerman and Florida justice

Mr. Zimmerman and Florida justice

Analysis by

Jay B Gaskill, Attorney at Law

I hate it when politics, particularly identity politics corrupts the criminal justice process.

I hated it when white supremacists with all-white juries walked away from solid murder prosecutions in the retrograde South; I hated it when a predominately non-white jury acquitted a popular black icon for killing his wife and her lover, not because these jurors had deep, substantial doubts about his guilt, but because they wanted to send a message to a police department that they deeply suspected was infected with racism; and I hated it when race riots erupted in Oakland when a white BART police officer was supposedly undercharged for the shooting of a non-white man who was resisting arrest. Leaving aside any fine-tuned analysis of the evidence in these cases, the outcomes were driven by anger and identity politics.

I have not commented on the ultimate merits of the Zimmerman prosecution. If you’ve been in hiding for the last few weeks, I refer to the criminal investigation and ultimate prosecution of one George Zimmerman for shooting and killing of one Trayvon Martin on the night of February 26th in a little town called Sanford in Florida.

On the face of it, there is what we defense attorneys call a “triable issue” based on Mr. Zimmerman’s self-defense claim. But the defense is far from slam dunk, partly because the decedent was unarmed, and partly because – well, the dead party was a black male and the shooter had a “white” name. As one news source put it, “Zimmerman is a white native of Virginia whose mother was born in Peru.” An embarrassing amount of ink and cloud data storage has been taken up by puerile discussions of which “identity” group the, now defendant, Zimmerman belongs to. The sincerity and reasonableness of Mr. Zimmerman’s reported belief that Mr. Martin was a criminal is germane; the defendant’s tribal affiliation – or lack thereof – is not.

Much also has been made of the Florida Statute, Section 776.013, particularly paragraph (3) which provides that–

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

This is not particularly controversial. The California law of self-defense, for example, is captured in some formula jury instructions, the so-called CALJIC set, having been approved for trial judges to use by the California Judicial Council. Two such instructions – with which I am well familiar – seem to bear on the issues in Mr. Zimmerman’s case.

CALJIC No. 5.51, Self-Defense—Actual Danger Not Necessary, as given (in a particular case where the result was affirmed):

“Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.”

CALJIC No. 5.50, Self-Defense—Assailed Person Need Not Retreat, as given: (in a particular case where the result was affirmed)

“A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense, a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”

The bottom line, the so called black letter law of self-defense adhered to by almost every jurisdiction in the USA, is that

(a) in defending yourself you are entitled to reasonably rely on appearances when assessing the danger; and

(b) you do not have to run.

The key qualifier in these cases, the one that functionally allows a degree of jury latitude is the term reasonable.

And there is also the murkier issue of proportionate response. If you are threatened by a homicidal toddler bearing a table fork, are you entitled to respond with an assault weapon? No reasonable jury would agree with such a disproportionate response.

Is there a hard and fast rule? No. This is why we have trials.

A key element in self-defense is that sincerity is an absolute predicate but a NOT free pass. If you did not actually think you were “defending yourself by the use of all force and means which would appear to be necessary to a reasonable person”, i.e., if your claim was insincere, then you are toast. But even a sincere claim of self-defense can be rejected if the jury concludes that it was unreasonable. In most jurisdictions, unreasonable or “imperfect” self-defense reduces a murder to manslaughter.

As to Mr. Zimmerman’s case?

I was not there, and I dare say neither were you. Let’s hope for an impartial and reasonable verdict, not a political one.

And whatever the outcome, no riots, please.


Copyright 2012 by Jay B Gaskill, Attorney at Law

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Jay Gaskill is the California Lawyer who served as the Seventh Public Defender for Alameda County, CA, before leaving his life of crime. His profile is available online at

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