Standing Your Ground

Here is a link to a previous post by one of our guest law student contributors about the nuts and bolts of the stand your ground laws. Check it out and see what you think in the wake of the Zimmerman verdict.

Charging or Blocking

The Zimmerman/Martin case points out why I dislike speaking to jurors after a verdict, which I will discuss more of next week.

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Trial by Media

Did you know that there is a murder trial going on in Florida? 

I'm willing to bet you did. I'm willing to bet that you know a lot about the trial even if you've never watched a second of testimony. I'm willing to bet you even have an opinion.

I usually flip back and forth between the Today Show and CNN in the morning while I get ready for work (usually flipping the Today show when a Justin Bieber story or the like appears). Both shows, like every newscast, include updates about the George Zimmerman trial. Experts appear and opine about the day's events and the testimony.

It's the conclusions that slay me. Everyone purports to know what was going on inside Zimmerman's mind, Martin's mind, or the attorneys' minds (if they even have one - seriously a knock-knock joke). CNN even has the scales of justice weighed evenly on a screen and after the morning's discussion and dissection of the case, Chris Cuomo puts his hand on the screen and shows us all which side the evidence is favoring.

And this is how we form our opinions. Not on the facts or the evidence. It's the experts who tell us where the case is headed or what something means, which influences our own opinions. There will be outrage over the verdict no matter what happens and I'm confident to say the most outraged will probably know nothing more than the opinions fed to them by the major news networks. The only opinions that matter in this case is that of the jurors who have been selected and tasked with that responsibility.

In a smaller community like mine, most violent criminal trials turn into news stories. I never read anything about it during the case. No attorney wants a Monday morning quarterback. We barely want to answer our colleagues questions about the case and we cringe at their "helpful" suggestions of what we can do better. None of it matters because it is in the hands of the jury.

Once the Zimmerman verdict is handed down, speculation will help stoke the fire of the outrage because the verdict will be assailed no matter what it is. Let's just hope that the verdict does not lead to any more violence. The death of one boy should not be the instigation for the death of more.

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Stand Your Ground Law: Charging or Blocking?

A very well researched and interesting guest post today from Colin W. Maguire on the Trayvon Martin murder case.  Colin is a law student and the Interim Publicity Editor for the Thomas M. Cooley Law Review.  Well-wishes, questions, comments, and job offers can be sent to him at maguirec@cooley.edu.

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.    Fla. Stat. § 776.013(3) (2005).

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Approximately 92 words make up Florida’s “Stand Your Ground” Act, but those words measure the difference between defense and offense, between justification and retribution. It has captured our collective attention since the death of Florida Teenager Trayvon Martin, and questions linger as to how those events transpired.  It is clear that a physical altercation between Trayvon Martin and his killer, George Zimmerman, occurred on the evening of February 26, 2012; he admitted this to police. Zimmerman claims that Martin attacked him from behind after Zimmerman followed Martin as part of his volunteer neighborhood watch activities.  While Zimmerman observed Martin, Zimmerman contacted 911 and was close enough to Martin to give a description of the young man.  Zimmerman then stated that the physical altercation was immediately preceded by a verbal exchange where both parties were in close proximity to one another.  If the State of Florida cannot disprove Zimmerman’s self-defense claim under Florida Statute Section 776.012, then Zimmerman will be immune from criminal prosecution or civil action under Florida Statute Section 776.032.

            The law, and similar laws in other states, has been the subject of hot debate for the better part of a decade. “Stand Your Ground” laws, and related legal analysis, have been compiled in a timely and informative manner by Ms. Cheryl Cheatham and Mr. Andrew Plumb-Larrick of the Case Western Reserve School of Law’s Green Law Library and provided for public consumption on their blog.  Law enforcement officials struggle to apply the law, often faced with conflicting stories about a shooting, and almost immediately give the case to State Attorneys to assess the nuanced application of “Stand Your Ground” laws.  Even as early as 2008, a prophetic, then-law student named Zachary L. Weaver compiled a list of Florida homicide cases which presented incredibly difficult legal questions regarding “Stand Your Ground” law.

It is likely that Zimmerman will invoke a self-defense claim at his trial under Florida’s “Stand Your Ground” law. If he is found guilty anyway, then the recent establishment of a legal defense fund for Zimmerman indicates the parameters of “Stand Your Ground” law will be brought up on appeal. Zimmerman’s assertion that he pursued Martin from a distance and had close-contact with Martin before Martin allegedly struck Zimmerman could encompass a critical part of any appeal.

As the Florida Supreme Court stated, “[t]he role of the judiciary is to give effect to legislative intent.”  Did the legislature intend for somebody to literally stand their ground and defend themselves or is the threatened individual only under “no duty to retreat”?  The difference is quite critical because to stand means “to support oneself on the feet in an erect position [or] to take up or maintain a specified position of posture…”.  Conversely, retreat is defined as “to draw or lead back”.  If the inclusion of one is the exclusion of all others, then a duty solely not to retreat puts no affirmative duty on a threatened individual to not move forward; could this be what Florida's legislature meant in drafting the “Stand Your Ground” law?  On the other hand, the legislature may intend for two simultaneous duties: first, the person defending themselves does not have to retreat; and second, the person defending themselves cannot advance toward their attacker because they may only stand their ground.

The latter interpretation probably makes more sense to the everyday person because it is a principle we know well in popular culture: the block versus the charge in basketball.  Read this succinct explanation of the rules by the NBA and note the legal parallels to “Stand Your Ground” law:

A block/charge foul occurs when a defender tries to get in front of his man to stop him from going in that direction. If he does not get into a legal defensive position and contact occurs, it is a blocking foul. If he gets to a legal position and the offensive player runs into him it is an offensive foul. In both situations, if the contact is minimal, no foul may be called. To get into a legal position defending against the dribbler, the defender just needs to get in front of him. On a drive to the basket, the defender must get to his position before the shooter starts his upward shooting motion. For most other cases, the defender must get into position and allow enough distance for the offensive player to stop and/or change direction.

This comparison is not meant to be callous (just a long-time NBA fan’s attempt to make sense of a contentious and complex legal issue); rather, it denotes a clear and relatable example of how “Stand Your Ground” law could be objectively viewed as two simultaneous duties by one claiming self-defense – the duty to not advance mixed with the duty to not retreat.  (Block vs. Charge and § 776.012) The NBA’s rule allows a defender to get into a “legal position” and allow the offending party to run into the defender; by implication, the defender cannot run into the offender.  If the defender moves into the offender or the defender does not allow an offender to “stop and/or change direction”, then the defender is no longer being defensive, but is now also an offender.  This results in the penalty not being called on the offensive player for a charge; rather, the penalty is called on the defensive player as a block.  Therefore, though the defender has no duty to retreat per se, the rule penalizes the defender if both parties are not standing.

            As the facts continue to emerge, Zimmerman’s claims of his movement during the episode which lead to the death of Martin should be an integral part of whether a “Stand Your Ground” defense applies.  If the verbal altercation preceding the shooting of Martin included movement by both parties toward one another, then one logical interpretation of a rule involving no duty to retreat might be that the party claiming to defend themselves lost the rights’ of a defender.

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Is the Murder of Trayvon Martin a Hate Crime?

These are the most difficult cases for so many reasons.  Charging someone with a hate crime escalates the level felony and sentence, starts a media firestorm, and provides a set of standards through which the public will judge a case.

What is a hate crime?  Under New York law, it's a two part analysis.  First, the crime committed must be one enumerated by the legislature.  Examples of this are assaults, murders, robberies, arsons, burglaries, and rapes.  It is an expansive list.

The second step is that the suspect intentionally select the victim because of a belief regarding race, color, national origin, ancestry, gender, religion, age, disability or sexual orientation.  This is where it gets complicated.

White on black, black on white, Hispanic on black, white on Arab, or any other combination does not automatically elevate a crime to a hate crime.  There must be proof beyond a reasonable doubt that the victim was targeted because of their status.

It adds an element to the crime.  Some states will not charge a hate crime because of this additional burden.  In an assault case, we only have to prove the defendant intentionally caused injury to a person.  If it is charged as a hate crime, we now have to prove the crime was motivated by hate for a class of people.  If not, the jury can acquit the defendant.

A few examples from cases:

An African-American victim is walking down the street holding a cell phone.  Four African-Americans jump him, beat him up, and steal his phone.  During the assault they call him a "faggot."  The victim is homosexual, but never saw the defendants before in his life.

An African-American suspect calls a cab.  An African-American driver comes in a small taxi.  The suspect asks for a van.  A Somali driver comes in a van.  The suspect takes his money and phone, and shoots him in the head.  Seven months later the same suspect and two Hispanic men agree to rob a cab.  The suspect tells them he has done it before.  He also says that they cannot rob "black or white cabbies, they don't carry no money.  You gotta do an Arab.  They carry all the cash."  They then rob a Pakistani driver at gun point.

What do you think?  Are these hate crimes?

I've discussed the ability to use a person's prior bad acts against them.  The courts dislike the practice.  But, with hate crimes, isn't the only way to get proof of a person's beliefs to investigate their history and see their views against a class of people?  It is very rare that we get any evidence during a crime to show us it was racially motivated.  Don't hate crimes now require us to judge a person's past too?

Federal courts do not have jurisdiction over murders or other cases without some special connection.  The only way the federal government will prosecute George Zimmerman is if they determine the crime was racially motivated.

Media, investigators, attorneys, police, and private citizens are digging into George Zimmerman's history as we speak.  Any racially motivated acts will be uncovered.  The real question becomes what does the government do with that information?  If it exists, can they use it against him?  How far back can they go?  Is it fair?  Or should they only be able to use the facts that surrounded the actual event?

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