Court is in session. The jurors have a question on manslaughter. The lawyers argued over how to respond to the question. The judge recessed for 30 minutes. She's may want to research or consult with someone on the appropriate response.
If the jurors are following instructions, it means they have rejected Murder 2 because the instructions tell them not to consider manslaughter unless they have rejected Murder 2.
In considering the evidence, you should consider the possibility that although the evidence may not convince you that George Zimmerman committed the main crime of which he is accused, there may be evidence that he committed other acts that would constitute a lesser included crime. Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if George Zimmerman is guilty of any lesser included crime. The lesser crime indicated in the definition of Second Degree Murder is: Manslaughter
The talking heads are
wrong that the question means they have rejected self-defense. That's one possibility. But they also may have rejected Murder 2 on the state of mind element alone, without having to reach self-defense. If so, they would move on to a consideration of manslaughter before getting to self-defense.
Just because O’Mara told them to work on self-defense first, they aren't bound by what he tells them. The way the instructions are written, the jury may think it first should decide whether the elements of Murder 2 or Manslaughter were met before moving to self-defense.
It seems like common sense after reading the instructions as a whole that since self-defense prevents a conviction on either charge, they should consider it first. I certainly wish the instructions were written that way. But they are not.
A literal reading of the instructions says: First first decide if GZ killed TM. If yes, then consider the circumstances and decide if it is Murder 2, Manslaughter or whether the killing was excusable or resulted from the justifiable use of deadly force.
The instructions refer to Justifiable Use of Force early on, but they don’t instruct how to decide the issue of Justifiable Use of Force until page 12, which is after the Murder 2 and Manslaughter instructions.
The instructions first tell the jury:
In this case, George Zimmerman is accused of Second Degree Murder.
A killing that is excusable or was committed by the use of justifiable deadly force is lawful.
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.
Nor does this mean the jury is divided. It could just be they don't understand the manslaughter instruction so they haven't yet decided if it has been proven. If after the judge answers their question, they decide it has been met, they would then move on to self-defense. If they find he acted in self-defense, they would then be directed to find him not guilty.
That the jury has moved passed Murder 2 does not mean they have rejected self-defense. It is one possibility -- the other is that they are determining whether the state proved either charge before getting to to the issue of self-defense.
Also, the news is now flashing the manslaughter statute instead of the manslaughter instruction. The judge did not give the culpable negligence instruction. There is only manslaughter by act. Manslaughter by act is a necessarily lesser included offense. Culpable negligence is not.
The manslaughter instruction reads:
To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. Trayvon Martin is dead.
2. George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin.
George Zimmerman cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide:
Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.
The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon George Zimmerman, or to commit a felony in any dwelling house in which George Zimmerman was at the time of the killing.
Had the jury been on manslaughter by culpable negligence, which it was not, the instruction would have included:
I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
