Unbelievable Directions and Instructions from Judge Sway Jury in Zimmerman Trial

By Marjorie Cohn

George Zimmerman

George Zimmerman leaves court after being acquitted in Sanford, Florida, July 13, 2013.

A Southern jury of six women – none of them black – found 28-year-old George Zimmerman’s shooting of unarmed 17-year-old Trayvon Martin to be justifiable homicide because he acted in self-defense.

The jurors were prohibited from considering race. They were instructed only on the parts of self-defense law that helped Zimmerman, and the chief police investigator improperly testified that he believed Zimmerman.

 Jury prevented from considering race

None of the jurors thought race played a role in the case, Juror B-37 told CNN’s Anderson Cooper. In fact the question of Zimmerman profiling Martin because he was African-American didn’t even come up in deliberations, the juror said.

No wonder it never came up. At the beginning of the trial, the judge forbade the prosecution from speaking about racial profiling. Only the word “profiling” could be used, Judge Debra S. Nelson ruled. “Criminal profiling is based on behavior,” NAACP President Benjamin Jealous said on Democracy Now! “Racial profiling is based on color and on race. And the reality is that it appears that George Zimmerman had a pattern of confusing color with grounds for suspicion.”

The entire trial from start to finish was sanitized of any mention of race.

Zimmerman told the 911 operator, “These fucking punks” and “these assholes, they always get away,” when he spotted Martin walking down the street in Sanford, Florida, that fateful evening. “Looks like he’s up to no good or he’s on drugs or something,” Zimmerman said. “Something’s wrong with him.” When an investigator later asked Zimmerman what he meant by those words, the shooter replied, “I don’t know.”

But the prosecutor was forbidden from telling the jury that the “something” that was “wrong” may have been the color of Martin’s skin. The Rev. Dr. Raphael G. Warnock, senior pastor at the Rev. Dr. Martin Luther King Jr.’s Ebenezer Baptist Church in Atlanta, told the New York Times, “Trayvon Benjamin Martin is dead because he and other black boys and men like him are seen not as a person but a problem.”

Howard Simon, executive director of the ACLU of Florida, noted, “George Zimmerman saw a young black male as a threat to his community.”

Clifford Alexander, who worked as a lawyer in the Lyndon Johnson White House, said in an interview with the Washington Post, “The clear reason why Zimmerman had the audacity to approach this child was that he saw the color of his skin as a threat.”

Two days after the shooting, Zimmerman’s cousin, known as Witness No. 9, told a Sanford police officer in a telephone call, “I know George. And I know that he does not like black people.” She added, “He would start something. He’s a very confrontational person. It’s in his blood. Let’s just say that. I don’t want this poor kid and his family to just be overlooked.”

But the judge sanitized the case and everyone involved was forced to ignore the elephant in the room. Indeed, after the verdict, Mark O’Mara, Zimmerman’s defense attorney, made the preposterous statement that if his client were black, “he never would’ve been charged with a crime.”

 Jury prevented from considering first aggressor

Florida’s self-defense law prohibits “initial aggressors” from using force if their own conduct has provoked that force. So if a defendant “initially provokes the use of force” against himself, he cannot claim to have acted in self-defense, unless he withdraws or retreats.

The prosecution asked the judge to instruct the jury that it could consider who was the first aggressor in the altercation between Zimmerman and Martin. If the judge had agreed to give that instruction, the jury might have concluded that, by following Martin, Zimmerman provoked a physical response from Martin. The defense objected to the instruction, and the judge decided not to give the first aggressor instruction.

The jury was instructed to consider only whether Zimmerman reasonably believed deadly force was necessary to prevent imminent death or great bodily harm to himself – when he later tussled with Martin on the ground. The jury was also told Zimmerman had no duty to retreat, that he could stand his ground, and meet force with force- including deadly force – if he was not engaged in an unlawful activity and was attacked in a place he had a right to be. Finally, the judge instructed the jury that if it had a reasonable doubt about whether Zimmerman was justified in using deadly force, they should find him not guilty.

The instructions prevented the jury from considering whether Zimmerman was the first aggressor when he got out of his truck and began following Martin. When Zimmerman told the 911 operator, “Shit, he’s running,” the operator asked, “Are you following him?” Zimmerman said that he was. “OK, we don’t need you to do that,” the operator told Zimmerman. But Zimmerman followed Martin nevertheless. Rachel Jeantel testified that Martin told her on the cellphone he was being followed by a “creepy ass cracker.”

The jury was only given partial instructions on self-defense – those parts that helped Zimmerman. They were prevented from considering whether Zimmerman might have been the first aggressor, which would have negated his claim of self-defense.

Ultimately, nothing mattered to the jury, Juror B-37 told Cooper, except whether Zimmerman feared for his life in the seconds before he shot Martin.

Juror B-37 said that Zimmerman was guilty of nothing more than “not using good judgment.” She added, “Both were responsible for the situation they had gotten themselves into.”

 Officer permitted to make credibility judgment

Sanford police officer Chris Serino, the chief investigator on the case, testified that, given all the evidence, he believed Zimmerman was telling the truth. It is well-established that witnesses cannot make credibility judgments – it invades the jury’s exclusive province of determining the credibility and weight of any evidence. But the prosecution didn’t object to Serino’s testimony until the next morning, at which point the judge told the jury to disregard it. Yet the damage was done, and Serino again testified that there were no significant inconsistencies in Zimmerman’s statements to police.

From the beginning, Serino did not believe there was enough evidence to file criminal charges against Zimmerman. The officer told the FBI that he was pressured into making the arrest. Zimmerman finally was charged for Martin’s death only after a powerful national outcry, and the governor’s appointment of a special prosecutor – 40 days following the killing.

Serino testified, “In this case, [Zimmerman] could have been considered the victim also.” Likewise, Juror B-37 felt sorry for both of them – the dead boy and the shooter alike.

Marjorie Cohn is a professor at San Diego’s Thomas Jefferson School of Law, and is a former president of the National Lawyers Guild and deputy secretary general of the International Association of Democratic Lawyers.

This first appeared in Truthout


  1. avatarJEC says

    And the south shall rise again. The results speak volumes of the moral content likely to be found in Florida. Are the rest of us to forget this come the next hurricane?

  2. avatarThe other liberal says

    First, I would like to start by saying I originally wanted Zimmerman to be found guilty and I am still very dissatisfied with the outcome in court.. even more frustrating are the laws which got us here to begin with. But I do not want this verdict to be blamed on problems that are innacurate or emotionally based.
    First, I would like to point to the statement that you made: “Florida State Law prohibits the initial agressor from using force if their own conduct provoked that force”. This is referring to 776.041.. but 776.041 (a) says, unless:(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted
    every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant. This was the defense’ argument. First aggresor was not relevant if the jury believes he was in a life threatening situation.
    You say, the police reports suggest he was profiling, then never mention Zimmerman referring to Trayvons race in your argument. Well, ill mention the one time he mentioned race. The only time was when the operator said, “describe him, is he white, black or Hispanic?” Zimmerman’s response was, “he looks black”.
    That was a reasonable answer, not conclusive evidence that he was racially
    profiling. The judge decided that discussing or referring to racial profiling would be suggestive, so it was not allowed in court. In this instance, we should direct our complaints to the judge.
    But what about the prosecutor? He was pathetic as well. He missed several objections and even struck an African American juror in jury selection. His scattered plan seemed to be an emotional plea rather than a presentation of facts which could have nullified reasonable doubt. With this strategy, the jury could not guarantee Zimmerman’s guilt, and did not want to risk sentencing a man who may have been legally defending himself. The defense made sure that the jury would not act beyond their own logic, or stretch to find an answer; they made sure they could only convict if they were sure beyond a reasonable doubt. That is the current standard nationally. Would you prefer to remove the “beyond a reasonable doubt” requirement? I wouldn’t, I would rather find ten guilty men innocent than find one innocent man guilty. You?

    Disclaimer: after reading every court minute, watching every second of the trial, independently researching each witness, the suspect and the victim, researching case law, as well as the lawyers, prosecutors, judge and jurors; I have no convictions of Zimmerman’s guilt or innocence. That being said, if I was a juror with this opinion.. I would, by law, reluctantly, have to find him not guilty.

  3. avatarbob dorn says

    Plenty of lawyers and police have pointed out that Zimmerman was advised not to follow 17-year-old Trayvon Martin. Zimmerman himself was on tape saying the 17-year-old was running away. That’s exactly what the law describes as attempt to avoid conflict. Zimmerman saw it as evidence of guilt, and pursued. So Trayvon Martin was going to die, whether he turned and attempted to defend himself, or whether he ran away.
    The length of the arguments exonerating the Florida law and the interpretation of it by the judge and the jury is an indication that it takes an awesome number of words to defend the not guilty verdict, and much fewer to point out the deadly wrongfulness of what’s been done in Florida.

  4. avatarThe other liberal says

    Yes, Trayvon was running, according to Zimmerman. But one can avoid the conflict, start a new one, back off then start again.. it doesn’t matter if Trayvon was running. If the jury beleives, at the time of death, Zimmerman felt his life was threatened then they must find it justifiable by self defense.
    The non-emergency operator only suggested that Zimmerman didn’t need to follow Trayvon, she said” you don’t need to do that”, but she also suggested that Zimmerman should figure out what Trayvon was doing by saying, “what is he doing” after he just said, “I lost him”. I am not saying this even matters.. in the courtroom, the only thing that is suppose to matter is, “at the time of death”.
    I am not siding either way, i am just saying no case was presented that would prove beyond a reasonable doubt, his negligence.
    he argument that the shorter argument wins by default is absurd, and there is no room for that type of negligence in a courtroom. My argument is longer, because it sites facts, rather than an inaccurate interpretation of the law.

    • avatarJEC says

      Was it just? Did the Community – the entire Community – feel the scales of justice were balanced? When Zimmerman left his house to prowl (patrol?) the neighborhood looking for bad guys he took a gun which goes directly to intent. When Travon left his house he was looking for munchies at the nearest quickie mart and the candy in his hand proved his intent. Travon was youthful and immature on unfamiliar territory. Zimmerman is mature and on familiar territory. Did Zimmerman initial the contact? Without a doubt. Did Zimmerman introduce the weapon? Without a doubt. Did Zimmerman stalk Travon? If following someone in the dark qualifies as stalking. The scales of justice have not been balanced. And symbolically this has the image of a southern lynch mob. A pale white unskilled prosecutor, a white woman judge denying race as an issue and an all white woman jury fulfilling the image that in the south white woman must fear black men. That’s the image, rationalize it all you want, it won’t go away. As case law, it could be concluded that in Florida any black person approached by any non-black person has reason to fear for their life. Will they stand their ground? We may find out tomorrow.

  5. avatarThe other liberal says

    Was it just? No. I am trying to make sure your passion is pointed the right way, rather than the jury instructions and a failed court, as implied. Im suggesting that one problem is that he is allowed to do this, and also the prosecutor was terrible. The law doesn’t care if Zimmerman stalked Trayvon, or if he had a gun, or who threw the first punch.. that doesn’t mean I dont care, its the law and I think thats what needs to be fixed. A suggestion to change the jury instruction, seems to be a suggestion to change the “beyond a reasonable doubt” clause, which may put several innocent in jail. That would be unjust.
    It is funny that the transcripts, which I have used, cannot suggest racism with any solidity; but race seems to be the main focus. The courts attack people with little means and lets wealthy people go, regardless of race. The main focus should be on the legislative system itself. But that is another chapter.
    We should also blaim the prosecutor;for one, he should have also asked for the lesser charge of “negligent endangerment,” wich would have sentanced him to a minimum of 10 years and45 days after gun enhancments. But this prosecutor was atrocious, and missed another oppurtunity. This charge says, he created a dangerous situation which lead to the injury of someone.. which, we can agree he did.

  6. avatarAndy Lee says

    > We should also blaim the prosecutor;for one, he should have also asked for the lesser charge of “negligent endangerment,” wich would have sentanced him to a minimum of 10 years and45 days after gun enhancments.

    Wouldn’t that be 20 years? My understanding, based on I what I’ve read about the Marissa Alexander case, was that 10 would be added for having a gun at the time, and another 10 for firing it.

  7. avatarThe other liberal says

    It is ten years for shooting a gun without reason. If the jury found he acted in self defense, the shot was considered justifiable.Marissa Alexander could have left the house rather than passing an open front door to get the gun (20years is crazy still).
    Ten years for “being involved in a crime while possessing a firearm, and 45 days for the negligent endangerment misdemeanor.

  8. avatarAndy Lee says

    Thanks for the clarification, and for mentioning that negligent endangerment would have been a misdemeanor, because if it was a felony he could not have claimed self-defense, unless I’m mistaken.

  9. avatarAndy Lee says

    Another question: does it really not matter who threw the first punch — which I’m assuming would be assault? From the judge’s instructions I thought if Zimmerman was in the act of committing a felony he could not use self-defense.

  10. avatarThe other liberal says

    If the jury believed that Zimmerman was on his back or not being the agressor at the time of the shot, then he was not commiting a felony.. the first punch is irrelevent. Also, the prosecutor never suggested Zimmerman threw a punch, so assault was not even a charge. I wish we could go back and have this trial again, but a retrial would be unjust. Hopefully prosecutors learn from this ones mistakes.

  11. avatarAndy Lee says

    I see.

    I have only absorbed a tiny fraction of what you have, but I cannot seem to find anywhere a clear narrative from the prosecution about what *did* happen, to compete with the defense’s. Maybe they didn’t have one, or they didn’t have one they felt they could prove. It does seem they could have picked at things in Zimmerman’s story — I can see how the defense would not want him on the stand.

  12. avatarabavetta says

    Clearly the Florida Judge erred in her Jury instructions relative to the Justifiable use of Deadly Force. The key point here is that if Zimmerman provoked the fight with Martin then he DOES have a duty to try and retreat. The Judge did not recognize this distinction.

    When a Judge makes a mistake like this in a criminal case is there no recourse for the prosecution?

    Judges Jury Instructions

    JUSTIFIABLE USE OF DEADLY FORCE http://tinyurl.com/kpfppcm

    ​………​If George Zimmerman was not engaged in an unlawful activity and was attacked in any
    place where he had a right to be, he had no duty to retreat and had the right to stand his
    ground and meet force with force, including deadly force if he reasonably believed that it was
    necessary to do so to prevent death or great bodily harm to himself or another or to prevent
    the commission of a forcible felonyIf George Zimmerman was not engaged in an unlawful activity and was attacked in any
    place where he had a right to be, he had no duty to retreat and had the right to stand his
    ground and meet force with force, including deadly force if he reasonably believed that it was
    necessary to do so to prevent death or great bodily harm to himself or another or to prevent
    the commission of a forcible felonyIf George Zimmerman was not engaged in an unlawful activity and was attacked in any
    place where he had a right to be, he had no duty to retreat and had the right to stand his
    ground and meet force with force, including deadly force if he reasonably believed that it was
    necessary to do so to prevent death or great bodily harm to himself or another or to prevent
    the commission of a forcible felony​………….

    Florida Law

    Chapter 776: JUSTIFIABLE USE OF FORCE​ http://tinyurl.com/qyo9nbz

    The justification described in the preceding sections of this chapter is not available to a person who:
    (2) Initially provokes the use of force against himself or herself, unless:

    (a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

    (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

  13. avatarThe other liberal says

    I dont see how you came up with Zimmerman having an obligation to retreat. The statute that you presented clearly states if there is imminent threat of deaih or great bodily harm, their act is legally justifiable
    In short, it says; justification is not available for the agressor, UNLESS (a) … they reasobly believe there is imminent danger of death or GBH. Or (b) if he had retreated and Trayvon were to continue the assault.
    If the jury beleived death or GBH was an imminent concern, then Zimmerman had no legal obligation to retreat, just as the judge said.
    Further, even if this was a mistake, it would be the prosecutors fault. The prosecutor and the defense council worked with the judge to write the instruction. If there was some misinstructions, there was plenty of time to fix it.

  14. avatarjohn says

    the evidence truly indicated george zimmerman had his gun in hand when he got out of his car and pursued trayvon martin ; . the evidence indicates that when martin was confronted with the unknowen stalker with a gun he went on defence by poping him in the nose and struggled with zimmerman yelling for help , this senero is factical as their is no way zimmerman could get to his holstred gun as he illistrated in his vidio demenstrated to police the day after he shot and killed an un armed teenager.

  15. avatarThe other liberal says

    The problem is that nothing indicated anything, all of the evidence was suggestive at most. How they got to the shooting is irrelevant in the self defense claim anyways. The grabbing of the gun, while on his back was possible.. if he were mounted, it would have been implausible(but not impossible), but if Zimmerman was in MMA, chances are that Trayvon would have been in Zimmerman’s guard, this would have left the holster accesible. This is also suggestive, but suggestive is not conclusive. And I would need conclusive or at least consistent information, to find anyone guilty beyond a reasonable doubt; in this trial the “evidence” presented by the prosecution was neither, conclusive or consistent.

  16. avatarjpf says

    I just want to say how refreshing it is to see a genuine and respectful exchange of ideas in the Comments section of any story these days. I’m so glad I found this article. Aside from the interesting and informative perspectives presented, you have all renewed my faith in civil discourse.

  17. avatarThe other liberal says

    I felt the same, its nice to see, or be part of an actual discussion. It seems when either party neglects to engage in civil dialogue, the worst comes out of the remaining party. On the other hand, when opposing positions talk civilly, some good is possible. To progress as a country, we must continue to express and, more importantly, discuss our opinions, knowledge and our beliefs. All with an open mind; and still, with a respect for what is knowledge, and empathy when regarding opinions and beliefs.
    It is too easy to swim in our shallow beleifs, but progress lies deep in the sea of knowledge. -Josh Eisman

  18. avatar says

    This person have chosen to blatantly distort the facts of the events as presented to the courts to further her own agenda, whatever that may be, and being an educator one has to wonder how effective her work ethics in classes may be.