Self-Defense?

Susan Estrich

First of all, the prosecution is extremely unlikely to convict George Zimmerman of second degree murder, which they charged him with, and which requires in legal terms that there may be "malice" and extreme disregard for human life. This means that the jury has to conclude that he is really evil. I'm watching from 3000 miles away, but that conviction is always tough when you have a "possible" self-defense claim. Because even an "imperfect" self-defense claim means that there was provocation of some sort, or some fear, even if overblown. This is why the prosecution argued to the judge that the jury should be instructed that it could still convict of the lesser-included manslaughter charge, and the defense was eager to go to the jury with just one question: murder or not?

The prosecution won that one. The jury will be instructed that should it acquit Zimmerman if he reasonably (even if, as it turns out, wrongly) feared that he would be killed or seriously injured, and that if it is found that his belief wasn't reasonable, but he wasn't acting with "malice," they can convict of manslaughter.

Betting, ladies and gentlemen?

What has surprised me in the second-hand coverage of the case is how many of the smart commentators are predicting acquittal.

I don't know what happened that night, and in a case like this, the devil really is in the details. It matters — as a matter of law and fact — who "started it" in terms of striking the first blow. It matters, obviously, who was screaming. Of the two people who know what happened, one is dead and the other didn't testify, no doubt because his attorneys were of the view that the prosecution had failed to nail its case, and they didn't want to give them a chance to use Zimmerman to make up for what they didn't have.

The law of self-defense used to be one of my absolute favorites in the many years I taught criminal law. It's such a wonderful mess, intellectually speaking. Because it's not enough that you — the defendant — actually believed that you were being threatened. You didn't have to be right (hindsight not required) but your belief has to have been reasonable. But what's reasonable? Here's the kicker: It has to be reasonable when considered by that hypothetical person who is in the position you are in that moment, with some but not all of your characteristics. Some, but not all.

So would it be reasonable, if it was Georgia Zimmerman and not George, to consider the fact that the defendant was a woman — a petite woman — a woman who had been the victim of violence in the past? There were wonderful old cases I used to teach, about the blind man who gets kicked and the impotent man who gets taunted (blind OK, impotence we don't consider).

But would anyone think for a minute that Zimmerman was reasonable in taking into account that his potential attacker was a young/African-American/male/in a hoodie? Do you think Zimmerman knew and measured those things? (Be honest.) Would you? (Be honest.) Is it reasonable? Isn't it blatantly racist?

Did the defense want women on the jury who might feel vulnerable to assault, and did the prosecution want women who might identify with this Martin's mother? Don't we all make judgments based on where we stand or sit?

Self-defense is one of those doctrines, which works, if you can call it that, by providing a framework for the jury to make what are essentially community-based judgments about what is "reasonable." The legal beagles in Florida are pointing out, rightly, that because the burden is on the prosecution to prove that Zimmerman did not act in self-defense, doubt — and how can there not be doubt in this situation — gets resolved against the prosecution. If jurors really can't figure out what happened that night, who attacked whom, whether it might have really seemed like a life or death situation to Zimmerman, then they should acquit. If they think Zimmerman went too far, that's manslaughter. At the end of the day, when the legalese dies down, that's the question. And the community here, inside and outside the court, just might not agree on the conclusion.

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