Yesterday I wrote about stand-your-ground laws generally. I did so because I didn’t know the mechanics of such laws, and there is a great deal of talk about such laws from people who seem to have no greater understanding of them than I have.
In the Zimmerman jury instructions, the jury was instructed on the stand-your-ground law:
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.
That instruction may not have been dispositive of the case—we’ll never know, since jurors decide then justify (based on the evidence and jury instructions)—but had the jury been given the pre-stand-your-ground jury instruction…
The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force.
…those three jurors who reportedly began deliberations having decided to convict would have had more ammunition to sway the three acquitting jurors.
Here, for the laypeople in the audience, is how a jury learns the law: The lawyers and the judge work out what the jury is to be told about the law; the judge reads those exact words to the jury; the lawyers argue to the jury what they think those words mean; and when the jury retires to deliberate they receive a printed copy of those exact words. Those written instructions are the law that applies to the case. The jurors are not allowed to consider other understandings of the law, and they generally will not get more clarification. They are on their own.
So, for example, if the jury had been given the pre-2005 instruction and the three convicting jurors had seized upon it as confirmation of their decision that Zimmerman was guilty (because by retreating before he was even attacked he could have avoided the need to use force), the three acquitting jurors might have argued that that’s not what the instruction meant—that the duty to retreat doesn’t arise until after the attack (when, in the particular case, they thought it was too late). The jurors might then have sent a note, via the bailiff, to the judge:
“Is the use of force unjustified because the defendant could have avoided the need to use force by retreating before he was attacked but not after?”
The judge would call the lawyers back to the courtroom from wherever they were sweating the jury, read the note to them, and then send it back with a singularly unhelpful answer: “You must follow the law as it is given to you in the jury charge.” It’s unhelpful because the jury charge can fairly be read two ways.
The Zimmerman jury was not given a retreat instruction for the situation in which Zimmerman was not attacked, but still reasonably believed that deadly force was necessary. It may be that the Florida legislature intended the stand-your-ground law to apply to that case as well, and wrote the statute badly. Legislatures do that. If it didn’t, and if the evidence could have supported a reasonable jury’s finding beyond a reasonable doubt that Zimmerman was not attacked, then the jury should have been given the common-law retreat instruction for that case (modified with the stand-your-ground instruction for the other).
Nobody can say whether the outcome of the Zimmerman trial would have been different had the instructions been different. But absent Florida’s stand-your-ground law the jury would have been instructed that “a person may not resort to deadly force without first using every reasonable means within his or her power to avoid the danger, including retreat.” Since that could have changed the dynamics in the jury room in ways at which we, and the jurors themselves, could not possibly guess, it’s foolishness to say that “stand-your-ground laws did not apply.”