Respected constitutional law professor Jonathan Turley explains that Zimmerman's defense team waived the immunity from liability determined by a pretrial hearing under Florida's stand your ground law. Contrary to popular belief, stand your ground was a valid defense recognized at common law long before state laws were enacted. Equally as important, the common law in most states recognized no duty to retreat even before the enactment of stand your ground laws and, in those states where there is a duty to retreat, it's generally only required if the person can avoid the use of such force with complete safety by retreating.
In order to seek immunity, you have to invoke the SYG provision and have a substantive pre-trial hearing. The court rules on the matter from the bench. If successful, there is no criminal trial. See Wonder v. State, 64 So. 3d 1208; 2011 Fla. LEXIS 1246 (Fla. 2011). That is the most significant difference in the SYG law and most of us have referred to that provision in the case. The defense did indeed waive that argument in not seeking the pre-trial hearing. They wisely chose to make a conventional self-defense argument to the jury. Moreover . . . the no retreat language in the instruction is not the invention of the SYG law but rather a common law rule (though Florida did once have a retreat rule). No retreat is the common law rule and the SYG language comes from common law cases. While the wording may differ from state to state, most states have always recognized the right to defend yourself without having an obligation to flee or retreat in the face of an attack. In other words, you can have the same defense with no duty to retreat in states without a formal SYG law.
Notably, even states with a duty to retreat like Connecticut, that duty is required only if "he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating. . . " See Conn. Sec. 53a-19. Use of physical force in defense of person. As stated in Smiley v. State, 966 So. 2d 330, the legislature did indeed change a prior rule with a duty to retreat in Florida with the legislation. Furthermore, as discussed in Weiand v. State, 732 So. 2d 1044, the Florida case law required a duty to retreat, but most states do not under the common law. The prior Florida law had exceptions for home or "retreat to the wall" defense. The legislation effectively adopted the common law rule in those other states. See Wayne LaFave & Austin Scott, Jr., Criminal Law § 5.7(f) (2d ed. 1986). Notably, even under the old Florida rule, Zimmerman could have made the same defense that he used at trial. He insisted that it was Martin who attacked him and that during the struggle he had to use lethal force in the struggle. Under the prior Florida rule, "if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat then his use of force likely to cause death or great bodily harm was justifiable." Dias v. State, 812 So. 2d 487 (2002) The adoption of the common law rule however certainly changed the instruction to expressly eliminate any retreat duty. If you waived immunity by not asking for the pre-trial SYG finding, you were left with the same rule in other states under the common law . . . .
Some people have insisted that SYG was applied in the case as a defense through Judge Nelson’s jury instructions. This is understandable given the fact that the jury instructions state that there is no duty to retreat. The jury was told that if 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 [as above].”
However, the common law does not impose a duty to retreat. It preexisted the SYG law. If it didn’t, hundreds of thousands of cases of self-defense would have had different results after people defended themselves rather than flee. Indeed, this is a point that I often made in opposing these laws: you already have the right to defend yourself and not to retreat. There are slight difference in the jury instruction among the states, including Florida, but the Zimmerman instructions reflected the general common law standard for self-defense and the justified use of force . . .In other words, you can repeal stand your ground laws, but unless you enact new laws that specifically abrogate the common law, the law will remain pretty much the same with or without the statutory enactments. The main argument, if any, against stand your ground laws is that they invite people to use deadly force where they might not otherwise choose to do so.
UPDATE: The Star has a story about a rally held today by supporters of Trayvon Martin who are calling on Indiana Gov. Mike Pence to seek repeal of the state's stand your ground law. Nowhere in the story does it mention that Zimmerman was acquitted without relying on Florida's stand your ground law.
Rain poured down on hundreds during a Downtown rally today in which Gov. Mike Pence was urged to review the state’s so-called “stand-your-ground” law in the aftermath of the Trayvon Martin shooting trial.
On July 13, a Florida jury found George Zimmerman not guilty of charges in connecton with the shooting death of the 17-year-old Martin during a March 2012 confrontation. Zimmerman said he feared for his life during a fight with the unarmed youth . . .
Jones, Pastor Jeffery Johnson and Stephen J. Clay, president of the Indiana chapter of the National Action Network, called for U.S. Attorney General Eric Holder to investigate whether Zimmerman violated Martin’s civil rights and for the crowd to contact state lawmakers to knock down certain self-defense laws.
Clay said Pence should establish a committee to review Indiana legislation similar to the “stand your ground” law in Florida.
Indiana law allows the use of deadly force if a person reasonably believed it was necessary to prevent themselves or someone else from being seriously injured; to prevent a “forcible felony;” to counter an attack or unlawful entry in their home or to prevent a hijacking.
Under Indiana’s law, “a person is not justified in using force if . . . the person entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so.”
“We are standing in a dangerous place now, where we have stand-your-ground laws. In some states they are called make-my-day laws,” Jones said.Indiana's applicable law is found at IC 35-41-3-2(c), which reads:
A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.
However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat; if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.Indiana court decisions are pretty clear that the statute in question is basically a reaffirmation of the law of self defense long recognized at common law.
UPDATE: Well, apparently we have some criminal defense lawyers and a law professor who are as ignorant on the law as the race merchants who fanning the flames of racial bigotry in the media. From the Northwest Indiana Times:
While attorneys agree Indiana's expansive version is largely similar to that of Florida's, veteran Gary criminal defense attorney Darnail Lyles sees one glaring difference.
In Indiana, had his defense team invoked the law, Lyles said Zimmerman may have been required at the jury-instruction phase to testify to what caused him to fire at 17-year-old Martin.
"Our jury instructions require the defendant to take the stand, in that only he can say what was the imminent danger he was responding to," Lyles said. "If you allege self-defense, you have to tell the jury what scared you."
"What they did in Florida is a mystery to me," Lyles said.
Some attorneys and academics disagreed, calling the requirement unconstitutional, but law professor Joel Schumm appeared to support Lyles' stance.
"Jury instructions are given whenever supported by evidence at trial," said Schumm, a professor at Indiana University Maurer School of Law,
"Sometimes this may require the defendant to testify -- if none of the other evidence of trial supports the defense," he said.
In Indiana, Lyles said attorneys argue the defendant was in a place where he had a right to be and was confronted with a threat of serious bodily injury against which he protected himself.
Crown Point criminal defense attorney John Maksimovich said he believes what happened in Florida could happen here.Are these people clueless? There is no mystery what happened in Florida. What happened in the Florida courtroom was televised for all to see. George Zimmerman waived his right to a pretrial hearing under the stand your ground law where he would take the stand and argue that he should be immune from criminal liability. His lawyers, instead, chose to argue self defense. It also wasn't necessary for Zimmerman to take the stand because he had given at least three recorded statements to police without the assistance of counsel explaining his actions on the night of the shooting, including a re-enactment at the scene of the crime that was videotaped, statements which were heard by the jury. This was reported in the media at the time and pointed out by Turley in his blog post. As CNN reported at the time:
George Zimmerman, set to stand trial in the 2012 shooting death of teenager Trayvon Martin, on Tuesday waived his right to a "stand your ground" pretrial immunity hearing. Zimmerman's attorneys have decided they will try this as a self-defense case.
Florida's deadly force law, also called "stand your ground", was passed in 2005. It allows people to meet "force with force" if they believe they or someone else is in danger of being seriously harmed by an assailant. Under the law, a person can use deadly force anywhere as long as he is not engaged in an unlawful activity, is being attacked in a place he has a right to be, and reasonably believes that his life and safety are in danger as a result of an overt act or perceived threat committed by someone else.
In a pretrial immunity hearing, a judge would have ruled whether Zimmerman's actions were protected under the "stand your ground" law; a ruling in favor of the defendant would have meant that no criminal or civil trial could proceed.It's no wonder that you have attorneys who are ignorant of the law when the people teaching them are as equally ignorant. Even before Indiana enacted its own version of the stand your ground law, the common law did not require a person to retreat before using deadly force to defend themselves. God, I miss Henry Karlson. If he were alive, he would set these clowns straight.