Well, this is interesting.

I came across the University of Miami Law School Summer 2014 edition of their law review, and noted that it had a particular focus on Stand-Your-Ground.

Awesome! I dug right into the Foreword, “Stand Your Ground” in Context: Race, Gender, and Politics,” by University of Miami School of Law Professor Donna Coker.

As you might expect, it was chock full of the race, gender, and political facets of Stand-Your-Ground, none of which is really in my wheelhouse.  It did, of course, talk about several of the recent (and upcoming) self-defense cases, including Zimmerman, Dunn, and Alexander–none of which, of course, actually are Stand-Your-Ground cases, but whatever.

Here’s a sample of prose to give you a taste of things, for those of you who daren’t click on the link above for the entirety of it:

If the phenomenon of violent crime is “classed,” surely the social construction of criminality is more so. Professor Jones calls attention to the intersections of gender, race, class, and youth in the popular imagination of the “thug,” which he argues is evidenced in George Zimmerman’s assessment of Trayvon Martin and is perpetuated by Zimmerman’s supporters.  Jones deftly demonstrates that the identity ascribed to young Trayvon Martin by Zimmerman’s supporters–and Zimmerman–is an intersectional identity defined by race (black), age (youth), gender (male), and class (poor): “[t]he same moral panic, which once targeted all blacks, has refocused on black males in urban areas with saggy pants and hoodies,” images that are “deeply associated with criminals and crime.”  The references in the blogosphere to Trayvon as a “thug, vandal, burglar, pothead and/or drug dealer” illustrate this widely held association.

(internal footnote references removed)

So, there’s 17 pages of that kind of stuff, if you’re interested.

I have to confess I didn’t make it all the way through myself, as I bumped up across an interesting factual claim with regard to the Zimmerman trial.

The Sunny Hostin Syndrome

You all will recall that last April I was invited to debate “Stand-Your-Ground” at UC Berkeley Law School. (Did I mention I won?)  I was on the pro-SYG side of things, of course.  A law professor on the anti-SYG side asked me how Zimmerman’s conduct could have been defensible given that he got out of his car and pursued Trayvon Martin after being ordered by the 911 dispatcher not to do so.

I immediately offered her a $100 wager that her statement of fact was incorrect.  She fell silent, but her debate partner, CNN Legal Analyst Sunny Hosting, fairly lunged at the opportunity:  “I’ll take that bet.”

I was, of course, correct on the facts, and the next day promptly sent Ms. Hostin definitive proof of these facts in the form of the relevant 911 recording that captured the entirety of the conversation between the police dispatcher and Zimmerman.

As an aside, Ms. Hostin has never made good on her wager. For those interested in more detailed facts and follow-up on the wager and her welshing on same, I direct you to:

The Wager Sunny Hostin Refuses to Honor

CNN analyst welches on bet after Andrew Branca wins “Stand-Your-Ground” Debate

Now, I’ve previously dealt in great detail with this issue of whether Zimmerman got out of his car contrary to police instructions.  He did not.  Anyone saying that he did is either lying (if doing so with knowledge of the actual facts) or ignorant.

The odd thing is that I keep running into people–law professors and CNN legal analysis and such–who really ought to know better, but who prove to be utterly ignorant of the relevant facts of the case–so much so that they get the facts backwards and therefore arrive at astonishingly incorrect conclusions.

This is especially notable given that they are speaking of the case in their professional capacity.

As mentioned, both of my debate opponents, Professor Tamara Rice Lave (also, I note, from the University of Miami School of Law) and Ms. Hostin mistakenly believed that George Zimmerman exited his car and followed Trayvon Martin contrary to police instructions not to do so.  Indeed, I must presume that Ms. Hostin still believes this to be the case, remaining voluntarily and eager ignorant of the actual facts of the case provided her, or she surely would have paid on her wager.

 

r-TRAYVON-MARTIN-CRIME-large570 2

And now I see that Professor Coker has somehow fallen victim to the same state of ignorance (favoring the benefit of the doubt).

Mistakes happen, of course, so I promptly sent off an email to Professor Coker alerting her to the error in the certainty that she would wish to issue a correction.  That email follows below.  I only sent it an hour or so ago, which is far to little time to expect a response of any kind, but should I receive a response I will naturally share it.

Dear Professor Coker,

I recently came across your Foreword for the University of Miami Law Review Summer 2014 edition, dealing with issues around Stand-Your-Ground law and other aspects of self-defense law. I myself am an attorney with a particularized interest in self-defense law, and found your article very interesting.

I did note one substantive factual error, however, that I know you would want me to bring to your attention for purposes of correction. It particularly references the Zimmerman trial.

On page 955 you write:

“The dispatcher advised him not to pursue the teenager, but Zimmerman disregarded this warning and set out on foot to follow the youth.82”

Your footnote #82 comments:

82. See id. Alafair Burke argues that had the court granted the prosecution’s request for a first
aggressor instruction, the trial outcome might have been different. See Alafair Burke, What You
May Not Know About the Zimmerman Verdict: The Evolution of a Jury Instruction, HUFFINGTON
POST (July 15, 2013, 11:19 AM), available at http://www.huffingtonpost.com/alafair-burke/
george-zimmerman-jury-instructions_b_3596685.html. See also FLA. STAT. § 776.041 (2013)
(“The justification described in the preceding sections . . . is not available to a person who . . . (2)
[i]nitially provokes the use of force against himself . . . .”).

The primary substantive error in your text is the mistaken order. You have the sequence as:

(1) The dispatcher advised Zimmerman not to pursue the teenager.
(2) Zimmerman disregarded this warning and set out on foot to follow the youth.

Self-defense cases are always exquisitely fact sensitive, and the sequence of events is of course critical. In fact, you’ve placed the sequence of events backwards, and stripped them of context that likely played a critical role in the jury’s conception of that night’s events.

In fact, the sequence of events as they actually occurred is:

(1) Zimmerman informed the dispatcher that Martin had fled from sight around the corner of a building.
(2) The dispatcher asked Zimmerman where Martin was running to.
(3) Unable to observe Martin from his vehicle, Zimmerman exited the vehicle and set out on foot to look around the corner of the building.
(4) The dispatcher, sensing that Zimmerman had exited his vehicle, asked Zimmerman if he was following Martin.
(5) Zimmerman affirmed that he was.
(6) The dispatcher advised Zimmerman, “We don’t need you to do that.”
(7) Zimmerman responded, “OK,” and began returning back to his vehicle.

On the way back to his vehicle Zimmerman concluded his call with 911. It was then that Zimmerman and Martin had their fateful encounter.

That my recounting of events is accurate is readily confirmable by listening to the 911 recording of Zimmerman speaking with the dispatcher. It is available from many sources, but for your convenience you can also listen to it here:

Zimmerman Trial: Myth Busters: Did Zimmerman disobey police orders to stay in car?

That post also has a transcript of the relevant portion of the recording.

As you can see, there’s a very good explanation for why the court did not grant the prosecution’s request for a first aggressor instruction. There is zero evidence–literally, none–to support a claim that Zimmerman was a first aggressor. He did not disregard dispatcher advice to not pursue the teenager, quite the contrary–he immediately complied. Indeed, it seems likely that the only reason Zimmerman got out of his vehicle to follow Martin in the first place was in the reasonable belief that the dispatcher was asking him to do so in order to ascertain Martin’s direction of travel.

Even if, however, Zimmerman HAD followed Martin in disregard of police instructions I am unaware of any state’s law that holds that merely following someone, absent malice (of which there was also no evidence) is sufficient to qualify as a first aggressor.

Frankly, the notion that a “first aggressor instruction would have saved the day” is just silly, once the actual facts of the case are known.

In any case, clients call. Again, I enjoyed your article, and I’m confident you’ll wish to make that correction.

Of course, it goes without saying that if you have actual evidence in support of your statement, I’ll adjust my understanding of the case accordingly.

Best regards,

Andrew

Andrew F. Branca
Attorney at Law (MA)
www.lawofselfdefense.com
@LawSelfDefense
Facebook: Law of Self Defense

I guess we’ll have to see what, if anything, happens.

–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.