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JUROR: It became very confusing. We had stuff thrown at us. We had the second-degree murder charge, the manslaughter charge, then we had self-defense, stand your ground, and I think there was one other one. But the manslaughter case -- we actually had gotten it down to manslaughter, because the second degree, it wasn't at second degree anymore.
JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
A review of the Jury Instructions raises a relevant issue to this. The Jury instructions as to self defense ("justifiable use of deadly force") in my view is highly questionable -‐ because it invokes the "language" of the Stand Your Ground law -‐ and even uses the highly charged phrase "had the right to stand his ground". Although Florida Statute 776.012 -‐ Use of force in defense of person -‐ incorporates the "theory" and "intent" behind this controversial law -‐ in no place does it make reference to "the right to >> stand his ground <<." This language is politically charged language -‐ rather than the actual statutory language -‐ and I believe had no place in the "standard jury instruction" or in the jury instruction actually given. The statute's language, as problematic as it is, clearly does not make reference to the "political description" of this law: "However, a person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or" Incorporation of this jury instruction into this analysis raises two questions of concern:
1) If the defense did not rely upon or invoke the "Stand Your Ground Law" -‐ was it appropriate for either this concept or this language to be given to the jury. Especially as they were NOT explicitly instructed in that law specifically. This goes to potential bias of the jury introduced by the instructions -‐ and the negation of the widely assumed claim that Stand Your Ground was not invoked, even if indirectly, in this case. And so it does raise the issue of that law's appropriateness not just generally -‐ but in this trial particularly. Yesterday -‐ by the way -‐ I spent a couple of hours "reflecting" on what it would take to bring a successful constitutional challenge against that law. The oddity of this law -‐ it is not a statute that establishes a criminal offense (and thus what is not such an offense) but a statute that provides an immunity from prosecution for existing statutory crimes. As perverse as this is on its face -‐ it makes it very hard to directly attack -‐ in a legal context where justice really is not considered "law" by Courts -‐ who instead believe that they are limited to fixating upon actual language in positive law. The one ground I believe is open for a real possibility of Constitutional challenge (that can "succeed" in today's legal context) is one based on the Principle, Doctrine, and explicit Language (Constitutional) of EQUAL PROTECTION UNDER THE LAW. As any lawyer or legal scholar must admit -‐ if a legislature enacted a criminal statute that ONLY APPLIED TO ONE CLASS of people -‐ rather than universally (at all times to all people) -‐ it would not withstand even a moment of (honest) judicial scrutiny. It would be as close to an open and shut case as possible (the exception to the rule -‐ being if a Court willingly ignored "the Law" -‐ which has, at times, occurred). But, because Stand Your Ground in effect has to be invoked by a defendant, as a defense (not done in this case) and explicitly granted by the Court as a valid defense (not done in this case -‐ explicitly). See the controversial case of Marissa Alexander. She had what is perhaps a reasonable claim to invoke this law's immunities and protections, and her actions caused actual harm to no one, yet a Court denied her claim to invoke its status. First -‐ this introduces the institutional biases of those who both known and can afford proper representation in the system -‐ not merely to determine their guilt, but to determine what constitutes an offense (or a basis for innocence). I think because this is a sort of "back-‐door" immunity from standing laws -‐ the fact that it is granted in some cases, and not in others -‐ raises a valid and viable equal protection claim. 2) Even with this concept included -‐ and even with this out of context (not in the relevant statute to that jury instruction) of the specific phrasing -‐ the particular language that Juror B37 uses is not derived from this jury instruction -‐ but betrays a pre-‐existing knowledge of the Stand Your Ground law, specifically, and
presumptions about what it entails, brought into the Jury deliberations by someone (and thus fairly certainly by one of the Jurors). Now this is where a more careful analysis of her statements last night become important. And I have begun this. Upon initial review -‐ I find two things of significance: 1) Juror B37 makes EXPLICIT REFERENCE to the "Stand Your Ground" LAW twice -‐ in the form of using those three word together -‐ and 2) indicating her understanding/belief that it was "a law" -‐ rather than a mere phrase within the separate, "self-‐defense" law -‐ cited above. I'll get back with more when I have a chance -‐ but here are the two moments I reference from the interview. (A) JUROR: It became very confusing. We had stuff thrown at us. We had the second-‐ degree murder charge, the manslaughter charge, then we had self-‐defense, stand your ground, and I think there was one other one. But the manslaughter case -‐-‐ we actually had gotten it down to manslaughter, because the second degree, it wasn't at second degree anymore. (B) JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right. NOTE: That in (A) above -‐ she specifically states that the Jury was given (or "had ... throw at" them) several laws to consider (I previously stated 4 -‐ but she states 5 now that I can read it): 1) 2nd Degree Murder; 2) Manslaughter; 3) Self-‐Defense; AND (and this and is key -‐ because she distinguishes 3 and 4 -‐ as two individual and independent laws) "Stand Your Ground"; and 5) "I think there was one other one." Also of extreme significance -‐ is that this is stated in the further troubling context of stating that the jury "was confused" as to what the law was. And this means that the Court failed -‐ in its jury instructions -‐ to properly prepare that jury to deliberate. Furthermore in (B) she connects two elements "in the heat of the moment" (an act of passion or emotion is suggested by this language) and "THE stand your ground". I add the emphasis on the definitive article "the" -‐ because it is a reference to a "thing" -‐ and thus not a reference to the mere phrase contained in the jury instructions on "self defense" (which this Juror clearly indicates she understood as DISTINCT AND DIFFERENT FROM "the stand your ground [law]") -‐ but while this sentence is not complete -‐ it shows, by invocation and use of that definitive article, that she was
referring to "a law" [in particular "the" 'stand your ground law'] -‐ and not merely making reference to the self-‐defense instructions. All of this I believe supports my hypothesis above -‐ although I am going to more thoroughly analyze the transcript -‐ that someone brought their prior existing familiarity with (knowledge is too strong a word -‐ but the belief that this was something "known" is clear) that controversial law and its political context and implications -‐ into the jury room and deliberations -‐ rather than having it given in an explicit jury instruction (as the juror seems to have believed). Now one further caveat: What we cannot tell -‐ at least thus far -‐ is WHO among that jury brought this into their deliberations as such -‐ and gave THIS PARTICULAR juror such a firm "belief" that such was a law that they were charged with incorporating into their deliberations. It certainly COULD have been her -‐ especially having learned that her husband is an attorney. But it was not necessarily so -‐ her belief and assumptions could have been derived from the statements/arguments of another juror. Statement (B): Responds to AC Question: Following up on her further statements that they did not fully understand the jury instructions. She says the Jury believed it had ‘no “other place to go” but their not guilty verdict. Cooper asks specifically about the limitation to TWO options (2nd Degree Murder – or – Manslaughter). She concurs – and then ADDS – the two further elements of “the heat of the moment” and “the stand your ground”. She then further elaborates on an aspect that is both rendered problematic under the influence of an outside introduction of the “Stand Your Ground Law” directly – or of its indirect reference, in concept, in the phrase included in the self-‐defense instruction. She states that – even though he did something effective unreasonable (got out of his car & followed Trayvon Martin) – that “that didn’t matter”. And this IGNORES the unambiguous language (in itself not confusing – but when followed by this use of the loaded phrase “stand your ground” – especially if the Jury had introduced into it the belief that there was “a law” entitled such that they were given (when not given such) – is without a doubt likely to cause confusion.) But the Jury, according to this Juror, IGNORED the preceding language of the instruction that states unequivocally:
“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” And here I point out THREE key elements that are not given due weight – in large part (if not whole) to the premises about “The Stand Your Ground Law”:
1) The appearance of danger – must not have merely been felt by Zimmerman – but “must have been SO REAL” – emphasis added – 2) “that a REASONABLY CAUTIOUS AND PRUDENT PERSON” would have believed – 3) “that the danger COULD BE AVOIDED ONLY THROUGH” the use of that force. And so the Jury instructions as to Self-‐Defense – requires a degree of “reality” in the danger (which is not the “mere appearance”) – and thus that a REASONABLE person would recognize the difference between “appearance” and “reality” – and more specifically – that this person, in their action, displayed to further elements beyond just “reasonableness”: “Caution” and “Prudence.” Caution – means that the person had to be aware of the CONSEQUENCES of his acts – and recognized whether there were a RANGE OF OPTIONS available to him. Prudence is effectively the demonstration that he showed he had the ability to govern his actions BY THE USE OF REASON. And thus the “mere threat” or “fear” was not sufficient. This is what the plain language of the instruction on Self-‐Defense gives PRIOR TO its introduction of either the concept derived from the Stand Your Ground Law (and again – the other questionable aspect is – did this concept not require the invocation of it as part of the Defense – and the acceptance of such by the Court in a trial based upon some particular standard of evidence?). As such all that follows ought to have been “governed” by that prior language. But it was not in this case – based on this Juror’s own statements. And additionally problematic – therefore the introduction of that concept and even more that highly charged language of “stand your ground” (then adding the likely introduction of prior-‐knowledge of this law into the process – making it worse) was CLEARLY a SOURCE OF CONFUSIONG entered into the Jury’s deliberation by THE COURT (in this instance). Confusion that the prior language of the instruction does not entail. And this Juror also clearly states, based on this belief that “The Stand Your Ground Law” (not formally invoked by the Defense or instructed upon to the Jury) provides effective immunity based on nothing more than the “subjective feeling of fear” –
which is inconsistent with the third of the above elements, and that is that the Jury was instructed that – and this goes further to defining what, at minimum, a (a) reasonable person, acting (b) cautiously, and (c) prudently would have to be considering BEFORE acting – and if FAILING to so consider – was NOT immune from being found guilty – but the contrary. But the instructions clearly state that IF OTHER OPTIONS WERE AVAILABLE – the Jury must recognize and consider that – and only if they were NOT available – deem it to be a mere act of self-‐defense and thus justifiable homicide. All of these problems are introduced and exacerbated and lead to the Jury’s complete failure to understand the instructions, and thus the law, by the TWO ADDITIONAL INAPPROPRIATE FACTORS: The Factor introduced by the Court – introducing not merely the concept (contradicting the language of the same instruction – that precedes its inclusion) behind the stand your ground law – but the explicit and charged language REFERRING TO THAT LAW (a reference that is a POLITICAL REFERENCE – as the statute, and thus law, in now way incorporates or entails that specific language – language that is the “popular” reference to the concept and controversial law (and which is thus coming into the Jury from knowledge they have – from one or more of the jurors – brought from OUTSIDE the Court and PRIOR TO the Trial). But Secondly – the Factor introduced by SOMEONE on the Jury – that gave the Jurors the belief (false) that ONE OF THE LAWS they were instructed on – was this particular “Stand Your Ground Law.”
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