There was a lot of news coverage of the court's rejection of the third degree murder/child abuse instruction, so I'm not going to discuss that.

Or the fact that the judge told the parties to make sure they checked the Fla. Supreme Court update on the self-defense instruction for an upcoming change, and both the states attorney and Don West said they did, but both submitted an instruction without the change. What was the change? The Supreme Court wants a comma removed from the instruction.(Not a joke, this is for real and Judge Nelson had them both state on the record it was okay for her to remove the comma. Here's the Talley case on the missing comma.)

What I will discuss, since I haven't seen any headlines addressing it, is the court's change to to the instruction to eliminate the ability of Zimmerman to argue self defense based on the belief he was in imminent danger from Trayvon's aggravated battery against him.

I was wondering why the instruction left that out since it was in the instruction that the judge read to the jury during voir dire, so I re-watched the argument about that instruction. (Second part here.)

Surprisingly, it was the defense that asked to keep it out, and the prosecutor argued to keep it in. Why would the defense do that? According to Don West, the state had a trick up its sleeve if the defense continued to pursue it. West said that since it is not their theory of the case, they were asking for it to be removed. It's a long hearing, but the court agreed with Don West that since the statute was worded "or" rather than "and," it wasn't mandatory and she took it out.

Put another way, the use of deadly force instruction released today omits the reference to deadly force being justified if the Zimmerman believed there was an imminent threat Trayvon Martin would commit a forcible felony against Zimmerman. It merely says:

“Deadly force” means force likely to cause death or great bodily harm.

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself

The instruction the judge read during voir dire said:

"Deadly force" means force likely to cause death or great bodily harm.

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 aggravated battery against himself or another.

Aggravated battery is intentionally touching or striking another against his or her will, and in committing the battery, intentionally or knowingly causing great bodily harm, permanent disability or permanent disfigurement to the other person. (my emphasis.)

The Stand Your Ground portion of today's instruction is essentially the same as the one the judge read to the jury during voir dire and the pattern instruction.

If George Zimmerman 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. (my emphasis)

Except that the pattern instruction tells the judge to insert the applicable forcible felony.

If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the< commission of a forcible felony.

Define applicable forcible felony from list in §776.08, Fla. Stat. that defendant alleges victim was about to commit. (court's italics)

How will the jury know what forcible felony means if the court doesn't define it or specify which one Zimmerman is alleging Trayvon committed? As far as I can tell, instead of having two ways for the shooting to be a justifiable use of deadly force with no duty to retreat under stand your ground, the defense is now down to one. And it prefers the single option to whatever "trick" the state had up its sleeve.

I'm not sure what the trick was. West only said the state wanted the jury to hear the elements of aggravated battery and it was trying to trick the defense into asking for the specific forcible felony justification because then the jury would learn the elements of aggravated battery. I don't understand how the state benefits from the jury being instructed it could find Trayvon Martin committed an aggravated battery against Zimmerman, but obviously, there's more to this story than meets the eye.

Moving on: The hearing segment on the rejection of the aggressor portion of the self-defense instruction is here and here.

Interestingly, the judge rejects the state's request to include the aggressor portion of the instruction but denies a defense request to have the jury instructed that following someone in a car or on foot is not illegal.

How's this for twisted logic? The judge and prosecutor didn't disagree with West that it is not illegal to follow someone, and that there is no statute that criminalizes following someone, but the judge said because there isn't a statute that states it is not illegal to follow someone, it wasn't appropriate for her to tell that to the jury. In other words, the absence of a statute making it illegal to follow a person is insufficient. She wanted a statute stating it is not illegal. How many criminal laws say "It is not illegal to do this?" And to top it off, when West then asked for a ruling in limine preventing the state from arguing in closing that Zimmerman did something wrong in following Martin, from which the jury could infer his act of following Zimmerman was unlawful, she denied it.

So the prosecutor can argue to its heart's content that Zimmerman was wrong to follow Trayvon Martin, but the defense can't have the jury instructed that following Martin is not a crime, even though everyone agrees it's not a crime.

Why it matters: Because the stand your ground protection only applies to those who are not engaged in unlawful activity and have a right to be in the place they are attacked.

The judge then criticized West for continuing to argue after she ruled and told him if she makes a mistake to take it up with the court of appeals. I agree that lawyers should stop arguing once the court has ruled, but I don't think that's what West was doing. He was trying to put his objection to her ruling on the record. Generally, the court of appeals in Florida will not reverse a case because of the denial of a jury instruction if the defense didn't preserve its objection at trial. (An exception is where the erroneous instruction prevented the defendant from having his only defense brought before the jury, since in that event, it would violate the constitutional right to a fair trial.) In the event the appeals court even considers the issue, it will likely apply the lower "harmless error" standard, making it much harder to get relief. The Judge is far too prickly about West. Preserving an objection for the record is not the same thing as continuing to argue for or against the instruction.