Criminal defense attorney here practicing in Florida. This article is upsetting. I apologize for sounding smug but I have been following this story very carefully and it is disappointing when legal analysis is done by a non-attorney (at least I hope the author is not an attorney), especially when they are not familiar with all the laws or case law precedent in the jurisdiction since it almost always leads to the reader being misled, misinformed, or not knowing entirely everything they should know. I have been analyzing this case from its inception and have put myself in the shoes of the prosecution as to the best strategy to put Zimmerman behind bars if it gets to that point, which I hope it does.
If Zimmerman is ever charged, and a plea deal is not reached and Zimmerman proceeds to trial, he will obviously rely on self-defense. The article does a decent job of discussing this and the reasonableness standard. However, what is not discussed is that any decent Florida prosecutor will file a pre-trial motion, motion in limine, to prevent the defense from asserting self-defense during the trial. If this motion is won by the prosecution, then it will be game over for Zimmerman since his attorney will not be able to bring up self-defense to the jury throughout the entire trial and he will have zero defense.
The prosecution will cite to Florida Statute § 776.041 (2012), which states that the initial aggressor is precluded from asserting self-defense where he is the individual who provoked the use of force contemporaneously to the actions of the victim to which the defendant claims self-defense. (See also Martinez v. State, 981 So. 2d 449 (Fla. 2008); Marshall v. State, 604 So. 2d 799, 803 (Fla. 1992)).
Essentially, the prosecution must convince the judge in the pre-trial motion, through testimony and evidence, that Zimmerman created the need to use self-defense, therefore, he cannot assert self-defense pursuant to Fla. Stat. § 776.041 (2012). The prosecution will point to the obvious evidence such as Trayvon was not doing anything wrong, he had only a bag of skittles and a drink on him, the 911 dispatcher told Zimmerman twice not to engage Trayvon, etc. Zimmerman created the need for the self-defense. Zimmerman had been watching Trayvon for some time while he was walking, Zimmerman approached him, Zimmerman more than likely placed his hand on him, thus creating a battery. What else would this seventeen year old kid be thinking? He was probably thinking Zimmerman wanted to hurt him or kidnap him. Zimmerman was not entitled to make a citizen’s arrest of Trayvon since Florida allows for private citizens to make a citizen’s arrest only if the person arrested has committed a felony in their presence. Phoenix v. State, 455 So. 2d 1024 (Fla. 1984). Obviously, that is not applicable here. If for some reason the judge denies this motion, then this argument can still be argued to the jury.
I have practiced out of Tallahassee, Orlando, and Tampa. This happens much too often. I am just glad this case is getting the publicity it needs to assist in ending this behavior. The behavior I am referring to is both the behavior of Zimmerman and the behavior of law enforcement.
Edit: pnoper is correct. I did leave that part of statute out. I did not think at this stage with the facts of the case it was applicable. Also, this is somewhat the point of my post in that discussing everything that truly needs to be discussed from a legal point of view would take too long and there are exceptions to the exception to the exception in almost every aspect of criminal law which non-attorneys just simply do not know and that even most attorney as well do not know. I guarantee if you did some case law research and limited your research to Florida Statute § 776.041(2)(b) (2012), you would find case precedent either defining that section more clearly, expounding on its meaning, or even limiting its application. We must be careful when reading legal analysis from non-attorneys.
excopandlawyer: you are correct, I did make up the fact that Zimmerman touched him first. I truly do not know what happened which is why I said more than likely did. But really, I do not know what happened and it will be up to the prosecution to elicit testimony as to this somehow.