Please don't kill the messenger. After hearing Zimmerman's version of what he's alleging caused him to shoot Trayvon Martin, I have concerns that prosecutors may have a difficult time obtaining a conviction under the Florida Stand Your Ground Law. I say "concerns" because I believe that morally, Zimmerman is responsible for the teen's tragic early demise. His intentional actions led to the death of an unarmed, innocent person. It should never have happened.

What is less clear is whether Zimmerman will ultimately be convicted in a Florida criminal court. Without question, I believe he should be arrested, at a minimum. Probable cause is a very low standard. Additionally, Aristotle defined justice as, "Like cases being treated alike." It's almost unheard of for shooters not to be arrested under arguably similar circumstances. The facts are murky and not clear cut. He should have to appear before a judge and attempt to prove, by a preponderance of the evidence, that he deserves immunity under the law.

Many "legal experts" have done a poor job at properly educating the public on how the Stand Your Ground Law (Florida Statute 776.013 (2009), may apply to this case. "Stand Your Ground" law, is an authorization by the state law makers, to meet force with force without the general requirement to retreat, if threatened or attacked. Pursuant to the statute, a person need not retreat and may meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm. However, the one defending themselves must not be engaged in an unlawful activity before the confrontation and must have a right to be at a place where assaulted. Reasonableness, however, is a murky legal standard, especially in these cases.

Those "legal experts" who have argued, "If Zimmerman was the aggressor, then Stand Your Ground wouldn't apply," are just plain wrong. Florida Statute 776.041, entitled "Use of Force by Aggressor," states that the Stand Your Ground provisions are still available to a person who is the initial aggressor if he reasonably fears death or great bodily harm and has exhausted every reasonable means to escape the danger. Additionally, Stand Your Ground would apply to the aggressor if he withdraws from physical contact with the assailant/victim and then, at any time later, fears death or great bodily harm.

For purposes of this article only, let's assume that the special prosecutor's investigation supports Zimmerman's alleged account of the fatal encounter with Martin. It's a big "if," I know. However, if those were the findings, then the trial judge would be presented with the following facts.

While Zimmerman was walking back to his S.U.V., Trayvon allegedly approached Zimmerman from behind and they exchanged words. Then, Trayvon allegedly hit Zimmerman so hard that he fell to the ground. Zimmerman's attorney alleged that Zimmerman suffered a broken nose. While on the ground, Trayvon allegedly began slamming Zimmerman's head into the sidewalk. One witness told a local television news reporter that he saw Zimmerman on the ground with Trayvon on top, pounding him. Additionally, that witness was clear that it was Zimmerman who was yelling for help, and not Trayvon as some have speculated. Fearing for his life, Zimmerman then claims that he shot Trayvon once in the chest at very close range. When police arrived less than two minutes later, Zimmerman was bleeding from the nose, had a swollen lip and had bloody lacerations to the back of his head. Those facts have yet to be conclusively established. However, if they were supported by the evidence, the prosecutor may likely have a difficult time before the trial judge and/or the appellate court.

The court may find under those facts that while Zimmerman was the initial aggressor, he withdrew from physical contact when he walked towards his S.U.V., away from Trayvon. Furthermore, even if the court found that he was still the "aggressor" at that point, the court could still grant him immunity finding that when his head was allegedly being slammed to the ground, he was reasonable in fearing death or great bodily harm and at that point, had no reasonable means to escape the danger, with Martin on top of him inflicting a beating.

So what about Zimmerman's actions before the shooting? The court may have a problem with many of Zimmerman's actions, as I do. The court could take exception to the fact that he pursued an unarmed teen, who was simply walking through a neighborhood in which he had a right to be. The court could also have a problem with the fact that after calling 911 and being advised not to pursue Martin, that he did it anyways. Furthermore, the court could even be outraged that Zimmerman's pursuit of Martin may have been racially motivated and that he may have even uttered a horrific racial slur. Nevertheless, the court could still rule that, "While Zimmerman's conduct was not prudent, it wasn't unlawful." As long as his conduct isn't deemed unlawful, then he may still qualify for immunity, as long as the other required findings are made.

If what Zimmerman alleged to law enforcement is not supported by the evidence, then, obviously, none of what I'm suggesting applies. It's all fact sensitive. For example, if Zimmerman, when returning to confront Martin had his gun drawn, the court could find that he was committing a forcible felony (Aggravated Assault with a firearm), he then would not be entitled to any immunity.

What makes this case so fascinating, amongst other reasons, is that the court could also find that both Zimmerman and Martin were entitled to protection under the Stand Your Ground Law based on the alleged perceived threat posed by the other.

What really happened that night? Unfortunately, one of the two people who know the truth is tragically no longer with us. That rightfully frustrates and even angers us. Nevertheless, the special prosecutor, and ultimately the court, will have to heavily consider what Zimmerman is alleging. If supported by the evidence, unfortunately, prosecutors may have a difficult time securing a conviction. Again, please don't kill the messenger.

ABOUT THE AUTHOR

Mark Eiglarsh is a veteran criminal defense attorney and former prosecutor. He's an adjunct law professor at the University of Miami School of Law. Eiglarsh, a Martindale-Hubbell "AV" rated attorney, is a frequent legal contributor to numerous media outlets including Fox News, CNN, and HLN. Mr. Eiglarsh can be reached at Mark@EiglarshLaw.com and via web site www.EiglarshLaw.com.