When the dramatic moral and political outcry quiets, and the distortions of the legal issues and processes cease, a lawyer’s consensus on the case might look like this:
—“Stand Your Ground” was always mostly a distraction. If by this colorful term we mean that there is no duty to retreat when facing a deadly threat, then the majority of states have had such a doctrine for a century. Most American states rejected the English-based duty to retreat in favor of this American rule, once called the “true man rule.” There is little that is special about the Florida rule, except that it got reenacted in recent years and given this colorful title, and maybe by this reenactment Florida instigated some dangerous impulsive behavior.
—The one “innovation” in the Florida Stand Your Ground law was to allow the defendant to move to dismiss a homicide charge preemptively by demanding a pretrial hearing on self-defense. But Zimmerman never followed this option anyway. The reasoning tells us something important about the no-duty-to-retreat rule: It rarely matters. Try to imagine a situation where someone near you does something that induces in you a reasonable fear that he will kill you or cause you grave bodily injury. How often would it be the case that you would and could save yourself by running away? Sometimes, but not very often. Once we grant the premise that your fear of death was reasonable, you will be granted a huge margin of error as to whether retreat seemed feasible. Zimmerman relied on the very conventional principle that regardless of a general duty to retreat, safe withdrawal from the scene was infeasible in his case, and this theory was best played out in a regular homicide trial. If he and Trayvon Martin were, as Zimmerman implied, in a physical entanglement when he shot the gun, he could argue that even had there been a presumptive duty to retreat it would have been excused.
—The murder charge was probably a loser from the start, because it would have required the jury to buy a very extreme anti-Zimmerman narrative for which the State had little evidence: that either Zimmerman had early on decided to kill Martin because he wanted to kill anyone who he thought might be a questionable outsider, or at the very least harbored a hate-driven animus early in the encounter and fired the gun simply because he found Martin annoying or rude.
—The plausible charge all along was manslaughter. Manslaughter can be a lot of things. It can be voluntary manslaughter if a person is provoked into the proverbial heat of passion, but that’s irrelevant here. It can be involuntary manslaughter if that means the gun went off accidentally, but the shooter was culpably negligent or reckless in allowing it to go off. But Zimmerman seemed to concede that at the last moment the gun didn’t go off accidentally—he had shot to kill. That would leave two other ways of getting to manslaughter. (a) Zimmerman had sincerely believed that Martin posed a fatal threat to him, but that perception was unreasonable. (b) Even if at the initial moment Zimmerman was reasonable in believing that Martin posed a fatal threat to him, earlier, initial aggressive action by Zimmerman was what put this scenario in motion. That is, Zimmerman was at fault for following Martin and gratuitously precipitating a dispute that led Martin to threaten him. One of these was always the best case for the State, and there were some facts on these points. But for the jury, not enough, especially because the State had the burden of proof, and because the jury instructions were probably unintelligible, and because some oddities in Florida law also posed obstacles.
—As for the judge and lawyers, it’s always risky to criticize if you were not there dealing with on-the-scene exigencies. But the judge seems to have made at least one very iffy decision, possibly because she caved to defense lawyer pressure. On the issue of whether Zimmerman was faulty as the original aggressor, the defense argued that so long as his conduct at that point—most notably following Martin even after the 911 operator urged him not to—was not itself illegal, then the initial aggressor issue should not even go to the jury. That was probably wrong. He might have induced fear in Martin by conduct that was foolishly dangerous if not illegal.
—As for the prosecution lawyers, well, they were dealt a tough hand. Their best hope might have been to cross-examine Zimmerman. But this was a rare case of self-defense without defendant testimony. And the reason may be that Zimmerman got to tell his story out of court. But the key out of court statement heard in court, and one that may have helped Zimmerman more than hurt him, was the taped interview with Sean Hannity, brought in by the State. Apparently the prosecutor thought that some inconsistencies between statements in that interview and other things attributed to Zimmerman would be good State evidence. But on the whole the interview allowed Zimmerman to sell a self-serving story. So the prosecution helped the defense by showing the jury a media-staged interview between the defendant and America’s most notorious demagogic shock-jock, someone whose radio and television rants have been pure Zimmerman advocacy from the start. Go figure.
—I lack the wisdom or any distinct power of insight to add to the roiling debate about how race affected the case. Suffice to say that in the United States today, perceptions of possible deadly threats are all-too-often race-inflected. Race-blindness in resolving a case like this is impossible. Subtracting race from the case was a daunting challenge for the jurors. Race would have been implicit in the legal arguments and was sure to be unmentioned in the jury instruction. But the facts were these: Zimmerman knew Martin was African-American. Martin may have made assumptions about Zimmerman because Zimmerman was a non-black confronting a black. And trying to surmise how Zimmerman and Martin perceived each other was crucial to this case.