I'm shocked that some commentators are claiming that Florida's Stand Your Ground law was not relevant to the recent outcome of the Michael Dunn "loud music" murder trial (which I prefer to call "another suspicious white man shooting an unarmed black kid" trial). Stand Your Ground was very much a part of both the Dunn trial as well as the George Zimmerman case. In both, defense attorneys opted not to have a pretrial hearing that might have exonerated their clients based on Stand Your Ground. However, that's only one part of the law. Stand Your Ground went on to play a part in both trials and contributed to unjust outcomes in both cases.
In the more recent case, Dunn, who is white, killed 17-year-old Jordan Davis in November 2012 after having an argument with him over loud music in a convenience store parking lot where Davis sat in an SUV with three young friends. Dunn fired 10 shots, including three at the SUV as it was fleeing. After the shooting, Dunn and his fiancé went to a local hotel, ordered a pizza, opened a bottle of wine, and watched a movie. The next morning he drove two hours away to his home, where he was apprehended.
Dunn claimed Jordan Davis, who was African-American, pointed a gun at him and threatened his life. No gun was found by police and no one else heard any threats. (And if the boys had a gun, why didn't any of them fire it as Dunn was shooting at them?)
After agonizing for 30 hours, the jury convicted Dunn of three counts of attempted murder, based on his shooting at the fleeing car, and one count of shooting into a vehicle. The jury could not reach a verdict on the top charge of murder for killing Jordan Davis, which resulted in a mistrial on that charge.
This outcome is like getting Al Capone for tax evasion. Sure, he'll be locked up (at least 60 years for Dunn), but true justice requires a conviction for murder.
This did not happen. The reason? Stand Your Ground.
Since some see it otherwise, here's the proof:
1. The judge directly told the jury Michael Dunn had the right to stand his ground.
A Dunn panelist has spoken out, Juror #4, who gave only her first name, Valerie. She confirmed that the Dunn jury did what it was told, and followed the law as it was given to them. The defense attorney told them to start on page 25 of the jury instructions, so that's what they did during their deliberations, Valerie told ABC News. What was on page 25? The justifiable homicide instruction. Justifiable homicide is another way of saying self-defense. In Florida, that instruction contains the "stand your ground" language. It did in this case. It did in the George Zimmerman case. It does in every Florida case where self-defense is at issue.
First, take a look at the law jurors were required to follow before the 2005 enactment of Stand Your Ground, requiring people to retreat -- to de-escalate and avoid violence if possible -- before shooting:
The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force.
Now compare that to the standard instruction that was read to the George Zimmerman jury in 2013:
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 felony.
Substitute "George Zimmerman" for "Michael Dunn" and you have the Dunn jury instruction. If you shoot someone in Florida and claim self-defense, substitute your name, because this Stand Your Ground instruction will be read to your jury, as it is the law of the state.
The Dunn jury heard this oral instruction from the judge, and then back in the jury room, they read its language and agonized over it.
How could a law that was read to the jury on a critical point such as this not be considered part of the case?
2. The jurors who wanted to convict Dunn did not have the pre-Stand Your Ground jury instruction to support their position, though they were arguing its logic.
Valerie felt strongly that Dunn had other options. He could have parked somewhere else. He could have rolled up his window if he didn't like the loud music in the teenagers' car. And when the verbal argument escalated, he could have driven away. Valerie says that two jurors felt Dunn had no option but to shoot, but:
The rest of us were 100 percent sure, you didn't have to react [with gunfire], you could have had another option. We looked at a lot of evidence -- and myself, it was where the gunshots were, the timing. Could he have had other options? To me, [the shooting] was unnecessary.
Sadly, the common sense and basic human decency Valerie and nine others on the juror clung to -- that shooting should be a last resort only when no other option is available -- is precisely what Florida law would have required before 2005. You had another option and killed anyway? Then you're a murderer. That's pre-Stand Your Ground thinking.
In 2014, those 10 jurors who were bothered by the fact that Dunn did not consider other options did not have the law on their side. They could stare at page 25 day after day and they would not find the law to help them. They could turn page after page in their jury booklet in futility, because no instruction mirrored their values. They couldn't point to any language in that booklet to tell the two voices for acquittal, "Look, it says here that the use of force is not justified if Dunn could have retreated." They were stuck with Stand Your Ground, which did not require him to take advantage of peaceful alternatives.
The jury worked hard, but they could not get past that pro-violence law.
3. Dunn's defense attorney explicitly argued Stand Your Ground at trial.
Dunn's defense attorney, Cory Strolla, explicitly pointed to Stand Your Ground in his impassioned closing argument:
His honor will further tell you, that if Michael Dunn was in a public place where he had a legal 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.
Why did Strolla spend valuable time on this language in his final chance to persuade the jury of his position? Obviously, because it helped him. It clearly supported his client's position that Dunn could stay put and shoot even if he could have safely escaped.
Dunn was inside his car when he opened his glove compartment, got out his pistol, removed it from its holster, pointed it and shot at the teenagers' SUV. He could just as easily driven off, which would have been required under the prior law. Strolla read this language to the jury panel to drive home his point that Dunn was not required to do that under Stand Your Ground.
4. Stand Your Ground is a well-known, highly publicized law in Florida that contributes to a swaggering "shoot first" mentality.
Even if the judge's instructions and the defense's closing arguments didn't explicitly mention Stand Your Ground, the jurors would likely have known about it. Stand Your Ground is part of the collective consciousness of Floridians, especially after the high profile Zimmerman trial. Together with the state's lax gun laws, Stand Your Ground empowers citizens to arm themselves and fire at perceived threats, protecting them from accountability afterward.
Michael Dunn's letters from prison show his utter confidence that he would be acquitted. He bragged about being very familiar with the law of self-defense. This mirrors George Zimmerman, who was a top criminal justice student who had been taught the law of Stand Your Ground before his shooting of Trayvon Martin.
Gun-carrying Floridians (and residents of the other roughly 26 Stand Your Ground states) know there's a good chance Stand Your Ground will exonerate them. In Florida, justifiable homicides doubled within two years after its Stand Your Ground law was passed. By 2011, the numbers tripled. Justifiable homicides remained flat or decreased in states without the law. Nationwide, justifiably homicides by civilians using firearms doubled in states with Stand Your Ground laws between 2005 and 2010, while falling or remaining about the same in states lacking them.
Consider: Had Dunn not fired shots at the fleeing car (which only by sheer luck did not injure or kill anyone else), he would not currently be convicted of any crime. Imagine. This is the result that Stand Your Ground has produced: justice for the surviving boys (convictions for attempted murder charges), justice for the car (conviction for shooting into a vehicle), but no justice for the homicide victim, Jordan Davis.
We do not yet have a conviction for the killing of Jordan Davis. The very least we can do is be honest about the law that stands in the way of accountability for his killing.
Lisa Bloom is a trial lawyer, Legal Analyst for NBC and Avvo.com, and bestselling author. Her newest book is SUSPICION NATION: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It.