The legal standard applied in Zimmerman case

Guest Columnist

Constructive comment about the conduct or outcome of a criminal trial begins with an accurate recitation of the evidence and the applicable standard of law. Speculation and a misapplied legal standard make no useful contribution. A recent Longboat Key News guest columnist made a heroic effort to characterize Trayvon Martin as an innocent bystander and George Zimmerman as the instigator concerning a tragic event.  But neither the trial evidence nor the applicable law support such a characterization.

As to the trial evidence, the medical report supported Zimmerman’s account that Martin attacked him, breaking his nose and smashing his head on a concrete surface, among other injuries, before Zimmerman pulled his gun and shot Martin. The autopsy confirmed that Martin was shot at close range with no evidence that suggested a trading of punches.

The applicable law was self-defense. The so-called Florida Stand Your Ground or “no duty to retreat” legal defense contained in Florida statute 776.013 was never the trial standard. Accordingly, any reliance on Florida statute 776.041, Use of Force by an Aggressor, is misplaced for at least three reasons. First, because Stand Your Ground was not the legal standard, the companion Florida statute concerning Force by an Aggressor was irrelevant in the Zimmerman case. For that reason, there is no incongruity between the two provisions.

Second, the medical evidence of Zimmerman’s injuries and the autopsy of Martin contradict a claim that Zimmerman was the aggressor. Manifestly, the evidence confirmed this was not an altercation between two men slugging it out for whatever reason. The plain evidence was that Martin straddled and pummeled Zimmerman even after Zimmerman obviously was subdued and incapable of punching in return.

Third, to suggest that Zimmerman lost his right to claim self defense because he “did nothing to avoid use of deadly force or to defuse the situation” misapplies the law.  Assuming the unsupported speculation that Zimmerman provoked a confrontation with some verbal insult, he retained his right to self-defense if he reasonably believed his life was in danger or his only recourse to prevent greater bodily harm was to employ deadly force.

That is not a casual or uninformed opinion. In an article published by The New York Daily News on May 18, 2012, Alan Dershowitz, Harvard Law Professor and an experienced trial lawyer, wrote: “Thus if Zimmerman verbally provoked Martin, but Martin got on top of Zimmerman and banged his head into the ground, broke his nose, bloodied his eyes and persisted in attacking Zimmerman—and if Zimmerman couldn’t protect himself from further attack except by shooting Martin—he would have the right to do that (The prosecution has already admitted that it has no evidence that Zimmerman started the actual fight).”  Dershowitz correctly described the facts and the applicable law.

Speculation about the conduct of Zimmerman and Martin to avoid a dangerous confrontation is likewise unconstructive. Perhaps if Zimmerman had turned away, Martin may be alive today. But it is no less reasonable to suggest that, if Martin had turned away and not physically assaulted Zimmerman, both may be alive today.  In any event, to suggest that Zimmerman suffered no great bodily injury, Trayvon Martin was frightened or that Zimmerman should have asked Martin to stop beating him, all either ignore the evidence or represent no reasonable appreciation of the circumstances or the applicable law.

It plainly, also, is incorrect to claim that Florida’s Stand Your Ground law set Zimmerman free.  If Florida had no Stand Your Ground law, the legal issues and outcome of the trial would have been unchanged. Zimmerman is a free man because he was acquitted by a jury on the grounds of self-defense. The law demanded an acquittal because the prosecution failed to prove criminal conduct.

Indeed, the more relevant question is to ask why Zimmerman was charged with a crime at all. Alan Dershowitz predicted the verdict based on exculpatory evidence ignored by the prosecution. The prosecutor’s reported claim that her job was to get “justice for Trayvon Martin” demonstrated a stunning misunderstanding of the role of a prosecutor and did nothing to advance justice.

There is understandable heartache about the death of Trayvon Martin, but it is not constructive to focus on speculation about what occurred or a legal standard never applied. Whatever antipathy exists to Stand Your Ground as a variant of self-defense laws generally, it cannot rationally be grounded on the Zimmerman trial facts, the legal standard applied or its circumstances.

Finally, a productive conversation about the appropriate extent of self-defense laws should begin with an acknowledgement, a premise and an observation. The acknowledgement is that ours is a violent society and, when great bodily injury or the loss of life itself is in imminent peril, prompt police intervention to prevent criminal conduct cannot be assured. The premise is that an individual right to bear arms is enshrined in the U.S Constitution for good and sufficient reason, self defense is an essential element of that right and neither of those principles is negotiable. The observation is that self-defense laws by statute or case law are necessary in a civilized society and citizens want them because they agree with the acknowledgement and premise just mentioned.


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6 Responses for “The legal standard applied in Zimmerman case”

  1. Meriam Matthews says:

    Well done, Mr. Hartenberger. I was particularly struck by your comment about the shocking ignorance about (or disregard for) the role of a Prosecutor. Excellent analysis.

  2. Rich says:

    Stand Your ground had nothing to do with the trail. It is clearly self defense in every state of the union.

  3. RickA says:


    Nope – the defense relied on traditional self-defense law. The prosecution wanted and the Judge allowed a jury instruction on stand your ground to be included (because it was in the revised standard jury instruction) – however, that was not the basis for the defense.

    The reason being that Mr. Zimmerman was not in a position to retreat, having been taken down and held on the ground during the beating – and therefore, the stand your ground law (which says you don’t have to retreat even if you can) didn’t come into play. The defense waived its right to have a stand your ground hearing and opted to go directly to trial using traditional self-defense common law.

    So those two statutes were not the foundation of the defense.

    The trial was poor in the sense that the prosecution presentation was a joke. The defense did an excellent job and the jury did an excellent job applying the law to the facts as tried.

    My guess is you only think it was a poor trial because the outcome was different than you wanted.

  4. RickA says:

    Very nice article.

    I completely agree.

    The jury did a very good job and from what evidence I saw from the trial, correctly decided the case based on the facts and law.

    For politicians like Colin Powell to opine that the verdict is questionable seems very questionable to me.

    Most of the media coverage post-trial seems to lean heavily to outrage that Zimmerman “got off”. They cite two jurors who said he “got away with murder”. These quotes of the jurors are not even remotely correct.

    It is pretty sad to see the piling onto Zimmerman when the facts show he was merely defending his life from an attack by Mr. Martin.

    Yes it is sad that a 17 year old person was shot and killed. However, it is also sad that a 17 year old would attack Mr. Zimmerman merely for observing him in his neighborhood.

    But the facts are very clear. Mr. Martin approached Mr. Zimmerman and started the verbal confrontation, and then started the physical confrontation.

  5. Arthur Toegemann says:

    HARTENBERGER cites two statutes he claims were not the applicable law, statutes I thought were the foundation of the defense. He then fails/refuses to provide the applicable law.
    Poor comment on a poor trial.

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