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George Zimmerman Trial Coverage => Law and Legal Issues => Topic started by: TalkLeft on June 20, 2013, 10:29:36 PM

Title: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: TalkLeft 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.

Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: Cylinder 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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: TalkLeft 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.



Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: TalkLeft on June 20, 2013, 11:26:54 PM
Here is the Florida jury instruction 3.6 (http://cdn.talkleft.com/zimm/2012inst3.6g.pdf‎) 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)
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: TalkLeft 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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: TalkLeft 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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: Cylinder 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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: TalkLeft on June 20, 2013, 11:51:53 PM
Here is the video  (http://www.youtube.com/watch?v=cbP62RgTKAg)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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: MJW 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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: Cylinder 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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: MJW 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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: Cylinder 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...
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: MJW 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.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: who007 on June 21, 2013, 03:13:49 AM
Here is the Florida jury instruction 3.6 (http://cdn.talkleft.com/zimm/2012inst3.6g.pdf‎) 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.)
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: cboldt 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
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: DebFrmHell on June 21, 2013, 09:35:53 AM
Are lesser charges automatically included?  Can the Defense argue that if the State can't prove 2nd Degree, it shouldn't be given other lower options?
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: cboldt on June 21, 2013, 09:54:15 AM
Are lesser charges automatically included?  Can the Defense argue that if the State can't prove 2nd Degree, it shouldn't be given other lower options?

It's not automatic.  The state will have to request jury instructions include pages that cover the lesser included offenses.  Defense can argue against it, and would make the same arguments it makes in a motion to acquit, namely lack of evidence to support specific elements in each of the charges (that admits that argument).

The justified use of deadly force affirmative defense trumps everything.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: nomatter_nevermind on June 21, 2013, 10:14:42 AM
It's not automatic.  The state will have to request jury instructions include pages that cover the lesser included offenses.  Defense can argue against it, and would make the same arguments it makes in a motion to acquit, namely lack of evidence to support specific elements in each of the charges (that admits that argument).

The issue is moot unless the judge denies the motion to acquit.

Are suggesting that a judge would buy that there is some evidence of M2, but absolutely no evidence of manslaughter?

If I were the defendant in this case, I don't think I would gamble that a jury that would convict on manslaughter, wouldn't as readily convict on M2 if they had no other option.

Here's the citation from the Florida Rules of Criminal Procedure (http://www.floridabar.org/TFB/TFBResources.nsf/0/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf) (p. 172).

Quote
RULE 3.510. DETERMINATION OF ATTEMPTS AND LESSER INCLUDED OFFENSES

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:

(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense; or

(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: leftwig on June 21, 2013, 11:20:19 AM
I took CBoldt's post to mean that if the state doesn't get past the hurdle of showing enough evidence of M2 and the judge agrees on a motion to acquit for M2, the state can motion for lesser charges to be considered and the defense can make their arguments against those lesser charges.  I think the later statement was an analysis that if the judge rules to acquit on M2 and the reason she give is justified use of force (meaning state didn't disprove defenses argument), then that same justified use of force argument would cover any lesser charge the state could bring. 
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: RickyJim on June 21, 2013, 11:29:18 AM
This instruction, which has been "customized" for this case, contains these two sentences
Quote
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.

..........................

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.
What confuses me is


Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: cboldt on June 21, 2013, 11:39:57 AM
I took CBoldt's post to mean that if the state doesn't get past the hurdle of showing enough evidence of M2 and the judge agrees on a motion to acquit for M2, the state can motion for lesser charges to be considered and the defense can make their arguments against those lesser charges.  I think the later statement was an analysis that if the judge rules to acquit on M2 and the reason she give is justified use of force (meaning state didn't disprove defenses argument), then that same justified use of force argument would cover any lesser charge the state could bring.

Correct, except:

- the state can move to have the jury instructed on lesser included charges, independent of getting past or not getting past a motion for judgment of acquittal.

- that as to the justified use of force, that "finding" by a jury (meaning that the "trumps" effect isn't available just to a judge) trumps M2 and any lesser charge.  If there is a "finding" of justified use of force, it doesn't matter WHAT the underlying criminal charge is.

Scare quotes around "finding," because the jury decision doesn't "find" self defense, rather it finds that the state did not disprove self defense beyond a reasonable doubt.  If the jury thinks there is a (small) chance it was self defense, then the jury is obliged to acquit.

A judge is obliged to use a similar standard of proof when ruling on a motion for judgment of acquittal, but the legaleze is phrased differently.

I brought up the arguments that would be used in a motion for judgment of acquittal, because those same arguments might be useful to argue against allowing jury instructions for any offense.  The argument of evidence v. element has to to ring of "no evidence for that element."

The Rule blockquoted by NMNM is what I am rephrasing, so between the rule itself and assorted remarks, you should be able to figure it out.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: TalkLeft on June 21, 2013, 12:32:23 PM
At today's hearing on excluding words, the state's attorney said their theory of the case is that Zimmerman confronted Martin. The judge repeated that and said "that's their whole case" and said they could say it.

Note, though, that he never said Zimmerman physically confronted Martin. The state was careful in its affidavit to say "Zimmerman confronted Martin and a struggle ensued."

At the April 20 bond hearing, Gilbreath said he had no evidence (http://www.talkleft.com/story/2012/4/21/22713/4445/crimenews/Reaction-to-the-George-Zimmerman-Bail-Hearing) Zimmerman physically confronted Martin as opposed to initiating the verbal encounter.

Witness 8 said it was Martin who initiated the verbal encounter. State's Attorney Guy today said they have evidence Zimmerman initiated the encounter, but he didn't specify which one: the verbal or physical. BDLR has hinted before their evidence is the statement of one of the sisters (who also said she couldn't see because she didn't have her contacts in). The sister went from seeing two figures fighting, to seeing nothing only vaguely hearing something (she got a glance of running, but more heard it than saw it) to seeing arms flailing. It was dark and raining.

Yes, if there is testimony at trial that Zimmerman provoked Martin, the judge could add that to the instruction. But she said she was reading the entire instruction which had already been personalized and Bernie didn't object. So as of now, I don't see any reason to think the court plans on including the aggressor portion.

Both sides submit proposed jury instructions in advance of trial. She may have had the parties submit them to chambers rather than file them. She may have had a conference with attorneys on them.  I don't know how Florida judges handle their jury instruction conferences, but I would think that the only thing that would have to be on the record in open court is her ruling on objections to the court's final proposed instructions at the end of the trial. Since there is no record on the docket of either party submitting instructions, it may be they were not filed with the clerk but submitted directly to the court. The proposed instructions would include references to anticipated trial evidence that may or may not accurately reflect the actual evidence at trial, so she may not have wanted them public.

There are a lot of things not on the docket that we know the court reviewed.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: RickyJim on June 21, 2013, 12:32:40 PM
Here is my proposal for a clear, non redundant jury instruction, stripped or irrelevancies to replace the one Judge Nelson read.  If we can get agreement on it here, I'll email the final version to the court clerk.    8)

You are to find George Zimmerman was justified in using deadly force against Trayvon Martin if and only if you find all of the following are reasonable:
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: redstripe on June 21, 2013, 12:42:00 PM
This instruction, which has been "customized" for this case, contains these two sentencesWhat confuses me is
  • the first gives Zimmerman the right to use deadly force without a mention of the duty to retreat, if he believes it necessary to prevent death or great bodily harm.  Part (2) of it seems redundant.  The second, after the ellipsis, requires him to retreat (if possible) if he was committing a crime or was in a place he had no right to be before using deadly force.  They seem contradictory in the case Zimmerman was committing a crime or was in a place he had no right to be, and redundant in the opposite case.
  • Wouldn't the prosecution have to file an additional charge to cover the unlawful activity mentioned in the second sentence, similar to what they would have to do if .041(1) were being used?
  • Who would object if the second sentence were excised from the jury instruction?

I actually think it would have been helpful to the defense if the instructions contained a definition of what the duty to retreat actually entails.  In most states, to the best of my knowledge, there is only a duty to retreat if there is a reasonable chance of escaping without incurring serious bodily injury or death.  Usually by the time someone is physically assaulting you, attempting to run away will just expose you to being attacked from behind.  So in reality, even if Zimmerman wasn't physically restrained by TM, the fact that (1) TM was battering him and showed no signs of relenting and (2) the fact that Zimmerman stood almost no chance of outrunning TM means that the duty to retreat would be a non-factor.  What's disconcerting about the inclusion of the stand your ground rule (particularly the "illegal presence" exception) without any context regarding the rule that it modifies is that it seems to open the door for the prosecution to utilize the oft-repeated media trope that George Zimmerman's brief pursuit/surveillance of Martin was an illegal act that somehow negated his right to self defense.
Title: Re: Judge Nelson Reads Self-Defense Instruction to Jury
Post by: RickyJim on June 22, 2013, 07:30:08 PM
I am confused about how wide reaching a jury judgment that Zimmerman was justified in using deadly force might be.  Would it obliterate all the lesser included charges in Murder 2?  I am, in particular, interested in culpable negligence which is FL 784.05.

(2) Whoever, through culpable negligence, inflicts actual personal injury on another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

I watched a video of Florida criminal attorney Richard Hornsby being interviewed by Joy Regan(sp?).  I can't find the video now.  He predicted at the end that Zimmerman would be convicted of culpable negligence.  In the Gibbs case (http://scholar.google.com/scholar_case?case=15783778784317286558&hl=en&as_sdt=2,45), Joelle Gibbs was charged with 2nd degree murder but in the end was convicted only of culpable negligence, but in that case the jury rejected her self defense claim.