by Rob Hager
The Sanford vigilante was certainly guilty of the crime of “aggravated stalking, a felony in the third degree,” as defined by Florida law. Having committed the predicate crime of stalking, Zimmerman was responsible for the outcome of his actions. The trial jury was “led astray by being asked to focus on the end rather than the beginning of the fatal encounter.”
How Zimmerman Could – and Should – Have Been Convicted Under Florida Law
by Rob Hager
“If Zimmerman had been charged with, and convicted of aggravated stalking he would also have been guilty of first degree felony murder.”
Many people are troubled by the idea that someone can willfully follow another person down the street, right to the person's own home, have malicious intent, put the followed person in fear or apprehension, kill the person, and then not be held guilty of some criminal offense that includes at least some responsibility for the killing, even if perhaps unintended.
Juror B29 in the Trayvon Martin murder trial has expressed the feeling on behalf of the jury that many of us are also experiencing: "in our hearts we felt he was guilty," she said. “George Zimmerman got away with murder … [But] the law couldn't prove it."
On the facts the jury knew, shouldn't there be a law that can “prove it?”
Actually, there is such a law. In Florida: "A person who willfully, maliciously, and repeatedly follows [or] harasses ... another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree." Fla. Stat. § 784.048.
“Willfully [and] maliciously” are evidenced by Zimmerman's own words to the police dispatcher. The word "repeatedly" is not defined in the Florida statue. But the statute does define the similar term, "course of conduct," “[which] means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." So "repeatedly" as used in the statute might simply mean "continuously" or "sustained." George Zimmerman did sustain his following of Trayvon Martin "over a period of time, however short, which evidence[d] his continuity of purpose" in targeting Trayvon Martin to challenge his presence in the neighborhood. Indeed he repeated his following of Martin even after the dispatcher told him he did not need to do that.
“Acts that are intended to and do put another person in reasonable apprehension of immediate physical harm constitute the common law crime and tort of assault.”
Such stalking may be motivated to get the targeted person out of the neighborhood, to bully, to feel physically superior to another person for an ego boost, to look for a fight or confrontation, or any other reason. If it was intended to and did credibly threaten a 17 year old who is on the street alone at night, that is a felony in Florida. Zimmerman apparently had sufficient experience with such matters to know the effect his behavior would have.
Each state has different laws covering this issue. Before stalking or felonious menacing laws were enacted this offense would come within the general meaning of assault. Acts that are intended to and do put another person in reasonable apprehension of immediate physical harm constitute the common law crime and tort of assault. Following someone in a threatening way that puts them in fear or apprehension is one way of committing an assault.
Ohio's stalking law contains additional detail that identifies the specific aggravating circumstances that generally concern people about the Trayvon Martin case.
Ohio law provides: "2903.211 Menacing by stalking.
“(A) (1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person.
“B)(2) Menacing by stalking is a felony of the fourth degree if any of the following applies: ...
(d) The victim of the offense is a minor.
(e) The offender has a history of ... other violent acts toward ... any other person.
(f) While committing the offense ... the offender had a deadly weapon on or about the offender's person or under the offender's control."
This pretty well describes the specifics of the wrong that many are concerned that George Zimmerman actually did commit. Criminal law is intended to protect not just victims, but society's interests. Society does not want people with a known propensity for violence going about the streets armed and stalking minors. This is independent of what he or the victim knew about these aggravating circumstances.
Felonious menacing or stalking may not be a serious enough crime to suit the circumstances of loss of life. But in Florida there is a very strict felony murder law that is designed to address just that concern, that when life is unnecessarily lost, even if unintentional, there should be heightened responsibility.
Felony murder laws assure that if Zimmerman started something unlawful – namely felonious stalking – that got out of control for whatever reason, resulting in loss of life, he must take some responsibility for that loss of life.
In Enmund v. Florida, 458 U.S. 782 (1982) the U.S. Supreme Court thought Florida set the level of that responsibility too high. In that case a robbery get-away driver was convicted under Florida's felony murder law although he did not pull the trigger, did not touch a murder weapon, was not present at the murder scene, did not know about or discuss the prospect of the murders until after they happened, and so had no intent to kill. In the U.S. Supreme Court, four Republican dissenters would have allowed Florida to execute the driver for felony murder anyway, even though all he did was drive and had no intent to kill. But the majority preferred him to have actually participated in the killing in some way if he was to be executed for it, but also would not require evidence of intent to kill.
In Florida, aggravated stalking furnishes a predicate for felony murder. Fla. Stat. § 782.04(1)(a)(1.n) punishes any "killing of a human being ... committed by a person engaged in the perpetration of, or in the attempt to perpetrate ... aggravated stalking."
By repeatedly following and then confronting Trayvon Martin, was George Zimmerman attempting to communicate a credible threat to Martin, perhaps that Martin should leave what happened to be his own neighborhood?
Many people think that, whatever his motive, this is what Zimmerman did. Unless there is a civil suit or a retrial on this criminal charge, it will be difficult to determine whether this felony, more likely than not, did happen.
The criminal trial jury was not asked to decide that question. It was led astray by being asked to focus on the end rather than the beginning of the fatal encounter. As juror B29 said about the charges, "a lot of us that wanted to find something bad, something that we could connect to the law, because for myself he's guilty. ... But as the law was read to me if you have no proof that he killed him intentionally you can't say he's guilty. ... As much as we were trying to find this man guilty…there was nothing that we could do about it." Distraught about voting to acquit Martin's killer, she said "I feel I killed him," but pointed to "the choices that they gave us" as responsible.
“In Florida, aggravated stalking furnishes a predicate for felony murder.”
If the criminal trial jurors had been given the choice to decide whether Zimmerman was engaged in or attempting felonious stalking prior the fracas that the jurors were asked by the prosecutors to decide upon, then exactly what happened during that fracas that caused the killing, which is not really knowable beyond a reasonable doubt in any event, becomes irrelevant. The purpose of felony murder is to attach responsibility for a killing not because of the killer's intent or how the killing took place but because it was committed by a killer who was "engaged in" a felony like aggravated stalking. There can be no question that without Zimmerman's original stalking neither the fracas nor the killing would have happened.
If Zimmerman had been charged with, and convicted of aggravated stalking he would also have been guilty of first degree felony murder, a capital offense in Florida. In that event, in our hearts we along with the jurors, could feel justice had been done. Instead we, like the jurors as reported by Juror B29, are left with the false impression that the law on the books is not written to protect us from a murderer who got a way with it.
But it seems like it is more the judicial system that failed us and the jurors in this case by failing to use the laws on the books. If that failure means the civil right of Trayvon Martin to walk the streets was denied with impunity, a result which makes the civil rights of all of us less secure, then a federal prosecution or retrial on these new charges would be appropriate. For double jeopardy purposes, it is not clear that first degree capital felony murder is a lesser included offense of manslaughter or second degree murder, particularly since stalking was not an element of the latter offenses.
Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief in the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on law reform and anti-corruption issues.
Rob can be contacted at http://www.linkedin.com/profile/view?id=132806564HYPERLINK "http://www.linkedin.com/profile/view?id=132806564&trk=hb_tab_pro_top"&HYPERLINK "http://www.linkedin.com/profile/view?id=132806564&trk=hb_tab_pro_top"trk=hb_tab_pro_top