George Zimmerman: New Reports, New Injury Video
Update 6/27: The state has just released a voice exemplar of Zimmerman yelling for help. It was taken on March 22, the same date that Zimmerman met with investigators to provide his cell phone and and a consent to search it. You can listen here.
Original Post 6/26/12 below:[More....]
The material released today in discovery in the George Zimmerman-Trayvon Martin case includes details previously blacked out in reports released earlier, and a new version of the re-enactment video that includes several minutes at the end in which Zimmerman describes his injuries. Unlike several media reports I've seen, I don't think the new details diminish Zimmerman's self-defense claim.
First, the investigator, Chris Serino, does not say Zimmerman's injuries are inconsistent with self-defense. He says they are "marginally consistent" with self-defense. He says independent witnesses neither confirm nor refute his account of being attacked.
To get a jury instruction on self-defense, see, for example. Vila v. State, Zimmerman need only provide some evidence, "no matter how flimsy" of his claim. His medical reports and the photos of his injuries, along with his own statement, are more than enough. That police believed his injuries are "marginally consistent" with self-defense and are not refuted by independent evidence are helpful in that regard.
According to Vila's testimony, the victim attacked him first, and he responded in order to defend himself against that attack. The State contends that Vila was not entitled to the instruction because the evidence that he presented was minimal and self-serving. This argument lacks merit as a defendant is entitled to a self-defense instruction if there is any evidence to support his defense. Wright v. State, 705 So. 2d 102, 104 (Fla. 4th DCA 1998) (holding that defendant is entitled to jury instruction on his theory of case if there is any evidence to support it, no matter how flimsy that evidence might be); Taylor v. State, 410 So. 2d 1358, 1359 (Fla. 1st DCA 1982) (holding defendant entitled to requested self-defense instruction no matter "how weak or improbable his testimony may have been with respect to the circumstances" leading to commission of offense).
As to the investigator's doubts Zimmerman was in fear before getting out of his car when on the phone with the non-emergency police dispatcher, that isn't the point in time by which his use of deadly force will be measured. To be justified in using deadly force, Zimmerman had to be in fear when he shot Trayvon, not when he got out of his car. At the point in time that he shot Trayvon, Zimmerman only had to reasonably fear serious bodily injury or death from Trayvon's use of force against him. The danger he perceived need not be real, he just had to believe it was real, and his belief had to be reasonable.
Here's the photo Witness 13 took of Zimmerman's injuries at 7:19 pm, three minutes after the shooting, before the medics cleaned him up.
W-13, the first person to encounter Zimmerman after the shooting, said Zimmerman he had blood all over his face and on back of his head.
Here's the photo of the back of his head taken at the police station the night of the shooting:
Zimmerman said he thought Trayvon was hitting him with something he held in his hand. Here's what the medic's report says as to the cause of the injury: "Struck by blunt/thrown object." If Zimmerman were hit with an object, it would certainly explain the lack of bruising on Trayvon's hands.
The Orlando Sentinel has posted the final minutes of the reenactment video showing George Zimmerman describing his injuries to police. In it, you can see Zimmerman's black eyes.
You can see the bruising on the right side of his head.
He points out a cut under his right eye:
The Sanford police believe that if George Zimmerman had explained to Trayvon Martin why he was following him, either when Trayvon first approached his vehicle or when Trayvon first yelled out to him while Zimmerman was walking back to his car, that maybe Trayvon wouldn't have decked him.
No one knows why Trayvon punched Zimmerman. Nor does Zimmerman have to come up with a reason. Maybe it would have made a difference, maybe not. Perhaps Trayvon would have been just as angry had he confirmed he was being being watched, and hit Zimmerman anyway.
Regardless, it doesn't defeat self-defense. Why? Because even should the Judge agree and allow the jury to consider whether Zimmerman's failure to defuse the situation or his following Trayvon provoked Martin into punching him, making Zimmerman an aggressor, Zimmerman still has a self-defense claim. Here's the aggressor statute.
According to Florida statutes and Florida's 2010 jury instructions, the jury would be instructed:
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent: 1. imminent death or great bodily harm to himself or another, or
2. the imminent commission of a forcible felony against himself or another.
Aggravated battery, which is what Zimmerman says Trayvon Martin was committing at the time Zimmerman responded by shooting him, is a forcible felony.
If Zimmerman is not found to be the aggressor (which would be the correct ruling in my view, since there is no evidence Trayvon reasonably feared an imminent use of force by Zimmerman when he punched him in the nose), the jury would be instructed on the stand your ground standard:
A person does not have a duty to retreat if the person is in a place where he has a right to be. If the defendant was not engaged in an 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 do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.
If the judge believes the evidence produced at trial raises a factual question as to whether Zimmerman provoked Martin into punching him, thereby becoming the aggressor, it doesn't prevent Zimmerman from arguing, and the jury considering, self-defense. It just means that instead of the "no retreat" language, the jury would be instructed that Zimmerman was allowed to use deadly force in responding to Trayvon if:
The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on his assailant.
What other means did Zimmerman have to stop Trayvon from seriously injuring or killing him? He had tried to get out from under him and failed. According to Zimmerman, this was the situation he faced -- none of which has been disputed by police or witnesses:
Trayvon punched him in the nose. He fell down. He tried to get up but Trayvon got on top of him, straddling him, and started beating his head into the cement. He started yelling for help. He yelled dozens of times. Trayvon put his hand over Zimmerman's mouth and nose and told him to shut the f* up. He sounded angry to Zimmerman. Zimmerman had no idea why.
Zimmerman squirmed, trying to work himself into a position to get his head onto the grass because he feared losing consciousness. When he did so, his jacket moved up. His firearm, which had been hidden from view, in his holster on his right hip, became exposed. Trayvon took one hand off his mouth and started moving it down his chest towards the weapon. Zimmerman was afraid Trayvon had seen the weapon and was reaching for it. If Trayvon had reached it, he feared he would use it to kill Zimmerman. He pinned Trayvon's moving hand against his chest, and with his other hand, grabbed his gun, pointed at Trayvon who was on top of him, and fired.
Zimmerman's fear of serious bodily injury or death from Trayvon need not be real or actual. He just has to believe it's real, and that belief has to be reasonable. Even if he was the aggressor, the jury would be instructed:
In deciding whether defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the
same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
What reasonable person facing the same circumstances -- being punched, forcibly kept on his back, and having failed at trying to rise on his own, having his head slammed into cement while being told to shut the F* up, and then feeling his assailant reach in the direction of his suddenly exposed firearm, would not fear serious bodily injury or death? What lesser means were available at that point?
The burden of proving guilt beyond a reasonable doubt never shifts from the state. As a result, since Zimmerman has enough for a jury instruction on self-defense, the state, in order to prove either second-degree murder or manslaughter (a lesser-included offense) has the burden to prove beyond a reasonable doubt that Zimmerman was not acting in self-defense when he shot Trayvon.
If the jury has a reasonable doubt about whether Zimmerman was justified in using deadly force, it must find him not guilty.
In my view, the new details and video released today do not diminish Zimmerman's self-defense claim. While they could arguably impact a "stand your ground" immunity claim, if the Judge accepts the state's argument on provocation, Zimmerman's attorney has yet to say if he will even file a stand your ground motion. Nothing released today shows Zimmerman was not justified in shooting Trayvon Martin.
I wonder why the media doesn't point out the part of Zimmerman's interview with Detective Serino on Feb. 29, where, after telling Zimmerman that he "passed a lie detector test", Serino tells him that there's a possibility Trayvon captured what happened with his cell phone camera. Zimmerman's spontaneous response:
I prayed to God that someone would be [videotaping this] or the neighborhood had put up a video camera that I didn’t know about or something.
Listen to his voice when he says it, around 10:21 to 10:51 in the interview. I think that will be compelling to a jury. The variations in his statements are understandable. They don't amount to contradictions or differences on the critical issues: Was he attacked, was his belief reasonable that Trayvon was reaching for his weapon or would continue beating him, causing him serious injury, and what means other than deadly force were available to extricate himself at that moment in time?
What did happen to the cameras? Apparently, this one wasn't working. Zimmerman told Investigator Singleton Leland Management was in charge of the cameras. Kent Taylor of Leland Management is endorsed as a non-testifying witness on an earlier state list of redacted discovery. Could more timely attention to a non-working camera have provided the answers both sides need in this case?
Here's more on self-defense jury instructions, with case law. For stand your ground and self-defense, see here. Here's a rough draft of what I think a self-defense instruction might look like in this case.
Before you comment, read our commenting rules on this case so your efforts aren't wasted. Please save your comment on your computer in case it's deleted.
|< Undoing The New Deal | ABC Reporter Says Serino Leaked Zimmerman Info >|