Update, news story here
Anderson Cooper’s blockbuster interview with Juror B37 continues tonight, and it looks like the anonymous woman has some pretty explosive things to say.
The partial transcript:
Anderson Cooper: Do you think Trayvon Martin played a role in his own death? That this just isn't something that happened to him. This is something he also...
Juror: Oh I believe he played a huge role in his death. He could have... When George confronted him, he could have walked away and gone home. He didn't have to do whatever he did and come back and be in a fight.
AC: And the other jurors felt that as well?
Juror: They did. I mean, as far as my perspective of it, they did.Beyond the idea that the unarmed victim is to blame for his own shooting death, it's interesting the juror thinks Zimmerman “confronted” Trayvon at one point. If so, that gets Zimmerman closer to being an “aggressor,” a title under Florida statutes that could have denied him a Stand Your Ground defense.
We were the first (April 15, 2012) to note the significance of the statute as it relates to this case and Stand Your Ground. Read that here
But then either the prosecutors forgot about its significance or just got outmaneuvered by the defense.
Without putting up a significant fight, the prosecution watched as Judge Nelson struck the “initial aggressor” language from the jury instructions. So if jurors wanted to hold the pursuit of Trayvon against Zimmerman, there wasn't much instruction for them to do so.
“Losing the initial aggressor instruction may have been the moment the state lost its case,” criminal-law professor Alafair Burke writes in the Huffington Post, which detailed the blow-by-blow:
The defense objected to the initial aggressor instruction. (See the defense argument here.) As a factual matter, the defense argued that no evidence indicated that Zimmerman physically initiated the confrontation. As a legal matter, the defense relied on Gibbs v. State, a 2001 decision from the Fourth Division of the Florida Court of Appeals, which held that a defendant loses the right to self-defense as an initial aggressor only if he provokes the victim's use of force through either force or "threat of force."
After Judge Nelson indicated that she understood the arguments on both sides, defense attorney Don West interjected, "Well, let me point out, as a matter of law, following someone on foot or by car is not against the law.... That cannot be considered provocation under the law... Force means physical force or the threat of physical force...." In conclusion, he emphasized, "It would be ERROR, and frankly, promoting miscarriage of justice, if the state were allowed to argue that to the jury." (See 3:37 here.)
The state attempted to rebut the defense's argument by noting the defense's request for a separate instruction regarding the legality of following a person. Judge Nelson responded, "We're not there yet," then quickly ruled without elaboration: "The defense does not want to give [the initial aggressor exception]; the state does. The court is not going to give it."
Now, of course, this is all Monday morning quarterbacking. For those of us watching the trial, it looked at the time as if the prosecution wasn’t adequately focusing on the fight and not the pursuit that led up to it.
“Prosecution close seems unfocused, talks 2 much about fight/2 little that #zimmerman followed Trayvon, advised by cops not to do so,” I tweeted July 11. (Although I’m no lawyer and I’m not as smart as Prof. Burke -- as I previously tweeted that the jury instructions looked like a prosecution win.)
There’s good evidence from Juror B37 that the “initial aggressor” instructions might have made some difference (we don't know how much). On Tuesday, she said she had concerns about Zimmerman's initial pursuit of Trayvon, but said he was justified in shooting the teen when the fight got underway.
"I’m 101 percent that he should have done what he did, except for the things that he did before," she said.
On Monday night, she told Cooper that at least one juror was trying to figure out how the pursuit of Trayvon factored into the manslaughter charge and self defense.
The jury even asked a question about it.
What would have happened if the aggressor language had appeared in front of them to start with? We'll never really know.
And, in an even more-hypothetical world, what would have happened if the aggressor language made it into the jury instructions AND the state had it's pre-Stand Your Ground laws?
We'll still never know. The reason: it's unclear when a pursuit of someone makes a person an aggressor. And even if it does, an aggressor can still use deadly force if he starts getting his brains beaten in. And Zimmerman argued that very fact. So Zimmerman might have had a duty to retreat (under the old law) and not get out of his car. But even if he did (under the old law) and picked a fight, he could have likely used lawful deadly force against Trayvon if he felt his life was in jeopardy. Again, Zimmerman argued that very fact.
Again, this is second-guessing after the fact. And after the fact, it sure seems like Juror B37 had her mind made up. She found Zimmerman was believable, the prosecution’s case wasn’t and now says that Trayvon essentially helped kill himself because he fought and didn’t flee.
Put another way: Trayvon stood his ground with fists, Zimmerman did it with a gun.
**Update: Zimmerman's jury-picking consultant, Robert Hirschhorn, told CNN that he forecast that Juror B37 was a top pick for the defense and would be the type of juror the prosecution didn't want. He certainly was right.
B37 also told Cooper that jurors cried about their verdict before it was read and that bailiffs gave them "about 20 minutes to try to get everything together." But in the end, the jurors knew Martin's family would be disappointed.
"We couldn't give them the verdict they wanted," she said.