Author Topic: Judge Nelson Reads Self-Defense Instruction to Jury  (Read 2625 times)

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Offline TalkLeft

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Judge Nelson Reads Self-Defense Instruction to Jury
« on: June 20, 2013, 10:29:36 PM »
On June 20, 2013, the final day of jury selection, during Mark O'Mara's voir dire of the prospective jury panel, Judge Debra Nelson read to the jury the instruction jurors will receive on self-defense.  She insisted on reading the instruction in its entirety so nothing would be taken out of context. Transcribed from the hearing verbatim:

Quote
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which George Zimmerman is charged if the death
of Trayvon Martin resulted from the justifiable use of deadly force.

"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.   

In deciding whether defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

If the defendant 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 to prevent the commission of a forcible felony.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and Trayvon Martin.

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.

« Last Edit: June 20, 2013, 10:32:00 PM by TalkLeft »

Offline Cylinder

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #1 on: June 20, 2013, 10:51:30 PM »
I guess the state will have to present evidence and argument before the aggressor statute is read, right? I'm surprised that Team Zimmerman didn't try to deal with this theme in jury selection.

Offline TalkLeft

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #2 on: June 20, 2013, 11:02:33 PM »
I think the aggressor issue is dead. It is part of the self defense instruction and the Judge didn't include it.

The judge asked O'Mara for his copy of the instruction to read. She got impatient when he handed her only one page and wanted both. Since the wording was personalized to include GZ and TM's name, it seems they have already had their juror instruction conference and the preliminary instructions have been decided. Bernie, who had just objected to O'Mara's description of the instruction, never said a word as the judge said she was reading the entire instruction, which included nothing about a different standard for an aggressor.




Offline TalkLeft

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #3 on: June 20, 2013, 11:26:54 PM »
Here is the Florida jury instruction 3.6 in its entirety with instructions on which sections to apply in any given case. In the middle, it includes the aggressor language and says "give where applicable."

Judge Nelson insisted on reading the entire instruction the jury would receive. It all comes from 3.6. There are sections in Judge Nelson's instruction from the beginning of 3.6 and the end, but no reference to the aggressor portion that appears in between.

So it's all one instruction, Nelson said she was reading all of it, and there's nothing about an aggressor in it.

As to the reference to aggravated battery, 3.6 instructs:

Quote
No duty to retreat. § 776.013(3), Fla. Stat. See
Novak v. State 974 So. 2d 520 [*644] (Fla. 4th DCA
2008) regarding unlawful activity. There is no duty to
retreat where the defendant was not engaged in any
unlawful activity other than the crime(s) for which the
defendant asserts the justification.


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.
(my emphasis) (court's italics)

Offline TalkLeft

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #4 on: June 20, 2013, 11:31:31 PM »
NM-NM: Forcible felony defined:

Quote
776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

Offline TalkLeft

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #5 on: June 20, 2013, 11:32:54 PM »
MJW -- done, I deleted the discussion on that and will delete this too when you've read it.

Offline Cylinder

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #6 on: June 20, 2013, 11:41:42 PM »
I know I'm tracking off-topic here, but if aggressor is out, then W8 is out. That's the only reason to bring her baggage - to cast Zimmerman as the aggressor.

I am really surprised that Zimmerman didn't touch that theme today. It makes it seem that you're right in that regard, though they may as a strategy want to stay away from planting that seed themselves.

It's either confusing or illuminating - I can't decide which.

Offline TalkLeft

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #7 on: June 20, 2013, 11:51:53 PM »
Here is the video of that portion where the judge reads the instruction. Right afterwards, Juror G63 asked her about the definition of forcible felony and she says she's not reading any more instructions.

Juror G63 says in response to O'Mara asking if there were any questions after the Judge read the instruction,  "I heard the phrase "forcible felony." I suspect it has some actual definition." He sounds very young, (His voice goes up at the end of his statements like a teenage Valley Girl.) The judge interrupts and tells them all she will not be defining any other terminology for them. They will get a written copy when they retire to deliberate. G63 did not make it to the jury.

Update: I just checked and G63 was the 18 year old. He is listed as "mixed race." He was at least 7 away from being called when jury selection ended.
« Last Edit: June 20, 2013, 11:56:06 PM by TalkLeft »

Offline MJW

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #8 on: June 20, 2013, 11:59:40 PM »
I know I'm tracking off-topic here, but if aggressor is out, then W8 is out. That's the only reason to bring her baggage - to cast Zimmerman as the aggressor.

I would think aggressor could be brought back in, depending on the state's evidence. I believe the defense and state will haggle over the jury instructions at the end of the trial.

Offline Cylinder

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #9 on: June 21, 2013, 12:06:51 AM »
I would think aggressor could be brought back in, depending on the state's evidence. I believe the defense and state will haggle over the jury instructions at the end of the trial.

Then that makes me question why Zimmerman didn't touch it in selection. That would be as important. It seems to support TL's posit that an instruction was agreed on already.

Offline MJW

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #10 on: June 21, 2013, 12:10:59 AM »
Could the jury instruction really have been decided on? I think that's something that would have to be done in open court. Of course, it seems like the sequestration was discussed (and perhaps agreed to) in private, so who knows? As I recall, cboldt thought that was improper, and it seems to me it would be.
« Last Edit: June 21, 2013, 12:12:48 AM by MJW »

Offline Cylinder

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #11 on: June 21, 2013, 12:22:19 AM »
They've made several stipulations in conference, such as no first names - George Zimmerman or Mr. Zimmerman, Trayvon Martin or Mr. Martin...

Offline MJW

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #12 on: June 21, 2013, 01:02:02 AM »
They've made several stipulations in conference, such as no first names - George Zimmerman or Mr. Zimmerman, Trayvon Martin or Mr. Martin...

I hadn't heard that. Was it a conference just between the defense and prosecution, or did it include the judge. The first seems entirely proper; the second seems iffy, but I'm not sure what the rules are. With a few exceptions, "judicial proceedings" are supposed to be open to the public, but I don't know what exactly constitutes a judicial proceeding.

I wonder if the version of the self-defense jury instructions are just a vanilla version agreed to for the voir dire. If they're the final instructions, I think the defense won a big victory.

Offline who007

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #13 on: June 21, 2013, 03:13:49 AM »
Here is the Florida jury instruction 3.6 in its entirety with instructions on which sections to apply in any given case. In the middle, it includes the aggressor language and says "give where applicable."

Judge Nelson insisted on reading the entire instruction the jury would receive. It all comes from 3.6. There are sections in Judge Nelson's instruction from the beginning of 3.6 and the end, but no reference to the aggressor portion that appears in between.

So it's all one instruction, Nelson said she was reading all of it, and there's nothing about an aggressor in it.

As to the reference to aggravated battery, 3.6 instructs:
As I watched the proceedings when she *first* read it (the video link you posted was when she read it a second time, insisting for a second time it would be her that would read the instruction, not Mr. O'Mara)--

When when she read it the first time, she stated "right now I am going to give you an instruction to give you an idea ...please keep in mind that portions of this instruction may or may not change slightly after all the evidence in the case is closed."

This can be seen on "George Zimmerman Jury Selection Day 9 - Voir Dire Day 2 (Edited by Talkleft to omit reference to an unacceptable source of the video. There are many others readers can find at You Tube.)
« Last Edit: June 21, 2013, 12:01:49 PM by TalkLeft »

Offline cboldt

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Re: Judge Nelson Reads Self-Defense Instruction to Jury
« Reply #14 on: June 21, 2013, 03:21:21 AM »
Could the jury instruction really have been decided on? I think that's something that would have to be done in open court. Of course, it seems like the sequestration was discussed (and perhaps agreed to) in private, so who knows? As I recall, cboldt thought that was improper, and it seems to me it would be.

"The law" coming in during voir dire, in the form of jury instruction language, was at O'Mara's initiation.  I am pretty sure that he wanted to limit the voir dire presentation to the legal meaning of "reasonable doubt," "justified use of deadly force," and how the standard of proof works against justified use of deadly force.  It was Nelson who insisted on reading the entire (standard) instruction (as it appears in O'Mara's notes, not as it appears in the standard instruction handbook)  for context, substituting victim and defendant names as O'Mara had done in his notes.

The actual jury instructions for this case have yet to be established.  Nelson made a point of saying that the instructions the jury would actually receive in writing might have some differences from what was being read to them.

Edit to add parenthetical about the reading being from O'Mara's notes
« Last Edit: June 21, 2013, 03:26:58 AM by cboldt »

 

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