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Both Jury and Nation Deliberate a Tragedy, Albeit Separately

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Breaking News 10:20 EST, July 13
George Zimmerman Found Not Guilty Tonight

A six woman jury in Sanford, Florida rendered a not guilty verdict tonight in the murder case of George Zimmerman. Zimmerman, 29, a neighborhood watch volunteer shot Trayvon Martin, an unarmed seventeen year old to death on February 26, 2012 after a confrontation which left the defendant with minor injuries. The case received massive media coverage and became a focal point for a discussion of race in America.

Zimmerman can not be retried criminally, but he is still liable in civil court for the tort of wrongful death if Martin's family decides to pursue a civil action. In order for Zimmerman to have been found guilty of murder, or the lesser included offense of manslaughter the jury would have to agree unanimously that the material elements of either of the offenses described below were proven beyond a reasonable doubt. Zimmerman, who did not testify at trial, had maintained through his lawyers that he had acted in self defense. Deadly force can be lawfully used by a defendant if he reasonably believes that he is repelling deadly force or serious bodily injury. Zimmerman is now a free man.

The George Zimmerman murder trial is among the most closely watched criminal trials in recent memory. However, a crucial aspect of the trial, the jury instructions, hide in plain sight despite the wall-to-wall television coverage. Yet, right before the jury retreated to the privacy of the jury room to assess the evidence, it was these critical instructions read to them by Judge Nelson that accompanied and instructed them as to the requirements of the law. It is no accident that one of the most intense court room battles revolved around the wording of this critical guiding document.

In such an emotionally charged trial as this, these instructions serve to anchor the jury regarding what the law requires of them. Its plain, clear language stands in stark contrast to the symbolism and deep emotional impact this tragedy has had on so many people beyond the families of defendant George Zimmerman, and that of Trayvon Martin, the unarmed teenager whose short life was extinguished by a lone gunshot on a rainy Florida night in February 2012.

Limits of the Law
The law has both purposes and limits, and in cases like this, the law will inevitably fall painfully short for many. No verdict will bring back the life or future promise of Trayvon Martin or reverse the devastation that is felt by his family and those who loved and cared for him. Additionally, it could not enable Trayvon's feelings and perspective to be heard. Nor, will it free George Zimmerman from the fact that he killed someone and the emotional impact not only on him, but on others who will develop their own opinions regardless of the verdict. For many, this case also has deep emotional symbolism that come from palpable fear. For some it is the fear of crime coming from unknown strangers, who sometimes look different. For others, despite the lack of an overtly racial motive, the case is nonetheless a painful symbol of the additional burden and real risks that African-Americans feel beyond that of their neighbors of being somehow suspect in the most routine of life experiences, irrespective of their circumstances or their age. Such heartache harkens back to the racial divide discussed by Bobby Kennedy following the killing of Rev. Dr. Martin Luther King:

Martin Luther King dedicated his life to love and to justice between fellow human beings. He died in the cause of that effort. In this difficult day, in this difficult time for the United States, it's perhaps well to ask what kind of a nation we are and what direction we want to move in. For those of you who are black -- considering the evidence evidently is that there were white people who were responsible -- you can be filled with bitterness, and with hatred, and a desire for revenge.

We can move in that direction as a country, in greater polarization -- black people amongst blacks, and white amongst whites, filled with hatred toward one another. Or we can make an effort, as Martin Luther King did, to understand, and to comprehend, and replace that violence, that stain of bloodshed that has spread across our land, with an effort to understand, compassion, and love.

Jury Instructions Focus Deliberations
As powerful and sincere as these emotions are, the jury instructions are designed to sideline them from the deliberations as much as humanly possible so that justice can be rendered in this specific case. Among the general instructions are those that require the jury to select a foreperson, apply the law, and weigh the evidence in light of the established burden of proof without regard to "prejudice, bias or sympathy." The instructions also point out that it is the prosecution who has the burden of proof and that Zimmerman does not have to prove anything, although in reality his defense team tried vigorously to establish self defense. Still, as many observers have pointed out, when evidence seems conflicting or confusing, that aids the defense, as the prosecution has the higher burden.

The standard of proof required on all the key parts or elements of a charge must be proven beyond a reasonable doubt for a guilty verdict and that finding must be unanimous for the six-woman jury. Zimmerman's "presumption of innocence" stays intact until such time that the evidence rebuts it by the standard of beyond a reasonable doubt:

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find George Zimmerman not guilty because the doubt is reasonable.

It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.

The Charges
The instructions tell the jury the charges and when homicide is punishable and when it is allowed by the law:

If you find Trayvon Martin was killed by George Zimmerman, you will then consider the circumstances surrounding the killing in deciding if the killing was Murder in the Second Degree or was Manslaughter, or whether the killing was excusable or resulted from justifiable use of deadly force.... A killing that is excusable or was committed by the use of justifiable deadly force is lawful.

To be found guilty of second degree murder the jury must find:
1. Trayvon Martin is dead.
2. The death was caused by the criminal act of George Zimmerman.
3. There was an unlawful killing of Trayvon Martin by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life....
An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an act or series of acts that:
1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.

The requirements of a second degree murder charge, particularly the element of evil intent in this case will be extremely difficult to establish, if at all. The jury, however, is also allowed to consider acquitting on the highest charge of murder and convicting on a minor lesser included offense of manslaughter that has no such depraved mindset requirement. The judge did not allow the addition of a proposed instruction by prosecutors of another lesser included offense, a third degree murder charge where death resulted from felony child abuse. Manslaughter is a common and distinct lesser included offense in murder trials, where the homicide is considered unlawful, but where the wrongfulness of the conduct and intent is considered less severe than that of murder because of the context of the event. One instance where manslaughter is often used is in cases where a defendant overreacts in defending himself. The jury instructions for manslaughter delivered today are:

1. Trayvon Martin is dead.
2. George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin.

These charges also include penalty enhancements that will significantly impact any potential sentence meted out by the judge after conviction. Even if acquitted of murder, Zimmerman can face decades of imprisonment if he is found guilty of manslaughter in Florida with the companion gun charge. In contrast, in California, Michael Jackson's doctor who was found guilty of manslaughter in the death of the pop star only got a four-year sentence.

Self Defense
The criminal law allows the introduction of certain evidence that will block a guilty verdict to a charge even in cases where the defendant is found to have committed conduct that would otherwise result in guilt. These "affirmative defenses" include self defense. The Model Penal Code allows the use of deadly force to protect oneself or a third party from a reasonable perception of deadly force, serious bodily injury, kidnapping or rape. The jury instructions today stated:

1 "Deadly force" means force likely to cause death or great bodily harm.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.
In deciding whether George Zimmerman was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, George Zimmerman must have actually believed that the danger was real.

While many Americans have opined on whether or not Zimmerman acted lawfully, only the jury has the legal authority to do so. With all the imperfections that exist in our society, trial by jury, remains a hallmark of a justice system that serves as a role model for the world. Irrespective of the verdict, the process, transparent for all to view, has been a silver lining of opportunity on what is otherwise a heart-wrenching tragedy. As New York Times columnist Charles Blow contends:

The case may produce a verdict some people don't agree with. But it has also produced a conversation that has weight and merit. All energy -- even anger -- should be funneled into extending that conversation and focusing on the factors that necessitated the case in the first place.

UPDATE July 13, 7PM EST
After thirteen hours of deliberation a juror question submitted to the judge asked for clarification on the charge of manslaughter.

After consultation with defendant and both sets of attorneys the judge sent a note back stating the court could not answer general queries, but invited the submission of a specific question.

The jury only determines guilt or innocence and in Florida does not know or adjudicate sentencing options. In Florida the maximum penalty for manslaughter with a firearm is 30 years imprisonment, while manslaughter can range as low as ten years. The sentence for murder in this case could range from 25 years to life imprisonment. Sentencing occurs only after a guilty verdict is rendered and is done by the judge.

The possible options for a verdict are guilty of second degree murder or alternatively of manslaughter, acquittal on all charges, or a hung jury, when a jury is unable to arrive at a unanimous verdict. The prosecution can retry a case when there is a hung jury, but can not appeal or retry an acquittal. The federal government does not have jurisdiction and can not try Zimmerman because no federal crime took place. Previously, the United States Department of Justice found there were no civil rights violations arising from the killing that would give the federal government jurisdiction to prosecute a case on their own. The fifth amendment's protection from double jeopardy precludes a state retrial of the case if there is an acquittal, but Zimmerman could appeal from a guilty verdict.

The jury has had a dinner break and thus will be deliberating this evening. During deliberations the jury can not discuss the matter with outsiders, but can send questions to the judge. Yesterday, the jury ordered a list of evidence presented in the trial.

Editor's Note: Prof Levin, a former NYPD police officer, has participated in murder cases as an expert and has taught criminal and constitutional law at the college and law school level as well as to prosecutors.