Posted on Thu, Mar. 29, 2012
last updated: March 29, 2012 06:49:21 AM
Two young men get into a violent struggle in a case that draws widespread headlines. In the chaos of the confrontation, one pulls a weapon and kills the other.
The dead youth was unarmed.
The victim was not Trayvon Martin, but Kendall Berry, a Florida International University football player stabbed to death by a fellow student in March 2010 during a physical confrontation.
The facts of each case are much different, but they highlight one of the vexing issues facing authorities since Florida lawmakers in 2005 loosened the states self-defense law: At what point does a confrontation escalate so much that it is reasonable to use deadly force against an unarmed person?
In the case of George Zimmerman, the neighborhood watch volunteer who shot and killed the unarmed Trayvon last month in Sanford, outside Orlando, prosecutors still are trying to figure out whether a crime was committed or whether the use of force against the Miami Gardens 17-year-old was justified. Police said Zimmerman, 28, suffered injuries to his nose and the back of his head that suggested a heated physical confronta- tion.
In Berrys case, Miami-Dade police had no doubts.
His killer, Quentin Wyche, is going to trial on second-degree murder charges. A jury will be asked to consider self-defense. But notably, a Miami-Dade judge recently declined to dismiss the case based on Floridas controversial Stand Your Ground self-defense law.
Miami-Dade Circuit Judge Milton Hirsch did not think the evidence he reviewed proved Wyche was justified in using deadly force.
Prosecutors contend that Wyche fled the fight, fished scissors from a backpack, then re-engaged Berry before stabbing him. His defense attorney says the threat a group of football players bent on jumping him justified lethal force.
The law does not purport to justify the use of deadly force in response to threats or shows of force of any and every kind, Hirsch wrote in a ruling last month. In ordinary circumstances, a push or a slap may be met with a push or a slap, or perhaps with a punch but not with a bullet, whether under Stand Your Ground or any provision of Florida law.
Defendants in the United States have used self-defense to clear themselves of killings for years.
But Floridas Stand Your Ground law which eliminated a citizens duty to retreat when being attacked before using lethal force had made self-defense an easier route, straining police and prosecutors while placing the burden on judges, not juries, to decide whether someone is immune from prosecution.
Since Trayvons shooting, critics have assailed the law, saying it promotes vigilante justice and lets killers go free.
Zimmerman shot and killed Trayvon on Feb 26 at a gated housing complex. That night, he called 911 to report that Trayvon was suspiciously looking into homes and appeared to have something in his waistband.
Trayvons supporters say Zimmerman was racially profiling a black teen who was walking home from a convenience store after buying candy and iced tea.
A police dispatcher told Zimmerman that he did not need to follow the teen. Zimmerman told police he got out of his truck to check the street address.
Sanford Police Chief Bill Lee told The Miami Herald earlier this month that Zimmerman said Trayvon approached him and attacked him as he was walking back to his truck. But a girl on the phone with Trayvon said she heard a man confront the teen and that a scuffle ensued.
Who initiated the confrontation remains unknown. The question could well play into whether prosecutors seek charges against Zimmerman.
Zimmermans full statement to police has yet to be released, but legal experts say his self-defense claim could be bolstered if he stated that Trayvon was reaching for an apparent weapon, or even for Zimmermans own pistol.
The extent of the violence involved in the fight also could play into a possible charge. From the outset, Sanford police made it clear that Trayvon and Zimmerman got into a violent physical struggle. Early police reports indicated that Zimmerman had a bloodied nose, an injury to the back of his head and grass stains on the back of his clothes, suggesting he was on the ground being pummeled.
The Orlando Sentinel, quoting anonymous law enforcement officials, reported that Zimmerman said his head was being slammed onto the concrete sidewalk. A witness also told police that Trayvon was on top of Zimmerman. Craig Sonner, Zimmermans attorney, has told television networks that his clients nose was broken and he was left with a gash on his head that would have required stitches had he gone to the doctor in time.
On Wednesday, ABC News released a Sanford police surveillance video showing Zimmerman arriving at the police station in handcuffs. An officer is seen inspecting the back of his shaved head which, on the video, did not appear to have any visible injuries.
Police said the video was authentic. Although it is unclear what time it was taken, it was probably after Zimmerman received first aid at the shooting scene.
That smashing of the head could elevate the brawl from little more than a schoolyard fight, said defense attorney Jonathan Meltz, who defended a high-profile Stand Your Ground case in the 2006: the shooting of a 9-year-old Miami girl caught in the crossfire of a gunfight. His client was convicted of manslaughter, not murder.
What are you going to do, wait until your head cracks like an egg? Take your chances that he is going to stop? Take your chances and never wake up from a coma? Meltz said.
Under the Stand Your Ground law, all Zimmerman has to do is claim he was in fear of great bodily harm, former Miami-Dade homicide prosecutor Abe Laeser stressed.
If no witnesses can prove otherwise, the intensity of the brawl is irrelevant and Zimmerman is clear without a jurys ever hearing the facts, he said.
Every bar fight, every road rage incident, every argument between two schmucks over whose dog crapped on their lawn the law allows someone to take basic anger and elevated it to, Im defending myself, Laeser said. But theyre not defending their lives, theyre just not playing fair.
Nevertheless, Trayvons family lawyers say they doubt how the teen could have been atop the man, and they doubt the extent of Zimmermans injuries
Trayvons body was found face down with his arms underneath him, which would not jibe with his being shot while atop Zimmerman, said attorney Natalie Jackson.
Zimmerman was still the aggressor, and even if a physical fight took place, the use of force was excessive, Jackson said.
This law doesnt apply to Zimmerman. You cant pursue someone and then claim self-defense when youre getting your butt kicked, Jackson said.
Self-defense cases involving fisticuffs have resulted in mixed decisions by South Florida courts.
One such case involved Alexander Lopez-Lima of Hialeah, who prosecutors believed lost a fistfight and shot and killed an unarmed acquaintance at his apartment. But his defense lawyer insisted the victim was being robbed and was beating him so savagely that his nose fractured. It was then, and only then, fearing what would happen next, that the defendant acted in his own defense, his lawyer wrote.
A Miami-Dade judge dismissed the murder case based on the Stand Your Ground law.
Another case is that of Nadim Yaquibe of New York, who visited South Beach in 2008 and got into a scuffle with a homeless man who threw a book bag at the teen who responded with a fatal knife thrust to the torso. A Miami-Dade judge denied an immunity motion, and Yaquibe is now awaiting trial on a charge of second-degree murder.
Miami Herald Staff Writer Frances Robles contributed to this report.
To read more, visit www.miamiherald.com.