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Trayvon Martin case: How courts in other countries might deal with a similar killing

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Trayvon Martin supporters gather at a rally while listening to an overflow broadcast of a town hall meeting in Sanford, Florida, on March 26 about Martin's death.

LONDON -- The fatal shooting of Trayvon Martin has raised fundamental questions about what is the right and the wrong thing to do in violent situations.

The circumstances of Martin’s death are still unclear, but his killer George Zimmerman’s argument is essentially that he was defending himself after the teenager attacked him. 

Authorities in Florida initially seemed to believe this, freeing Zimmerman without charge. Under Florida's controversial "stand your ground" law, Zimmerman was not required to flee before using force.

But, after widespread uproar, a fresh investigation saw him charged with second-degree murder. 

Florida will eventually come to its own answer about whether Zimmerman, who has pleaded not guilty, was justified in using lethal force. But what would other legal systems make of a similar case? 


NBCNews.com spoke with legal experts to ask what would likely happen to a shooter if a killing similar to the one described by Zimmerman happened in different countries.

We presented them with a fictionalized case based on his account -- see below -- and asked them  to analyze the possible outcomes, particularly how the various judicial systems would handle an assertion of self-defense.

It should be stressed that the experts' opinions are speculative and based on limited information, and the factual record of the Zimmerman case is still not fully established.

Joe Burbank / AP, file

George Zimmerman, left, and attorney Don West appear before Circuit Judge Kenneth R. Lester, Jr. on June 29, 2012, during a bond hearing at the Seminole County Criminal Justice Center in Sanford, Fla.

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ENGLAND
Michael Bohlander, chair in comparative and international criminal law at Durham University, England, said a shooter under such circumstances would “very likely be charged with murder and firearms offenses.” English law does not have different degrees of murder.

If convicted of murder, this would result in a mandatory life sentence. The judge could impose a “whole life” order, meaning the shooter would die in prison, but would more likely impose a “tariff” of the minimum number of years that had to be served in prison before release on parole was considered.

In March 2011, there were 2,650 life-sentence prisoners with tariffs of up to 10 years; 4,350 with over 10 and up to 20 years; 850 with tariffs of 20 years or more; and 41 serving whole-life sentences, according to U.K. government figures.

Bohlander, who is the editor-in-chief of the International Criminal Law Review and who trained the Iraqi tribunal that tried Saddam Hussein, said the shooter might possibly be acquitted if he could show he acted in self-defense, but doubted this would be possible.

He said authorities would take into account who launched the first attack and whether the shooter was following with or without "reasonable cause."

“Provoked self-defense situations do not mean that you cannot defend yourself at all, but they restrict your range of legitimate responses," Bohlander said.

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He said the use of a gun in this scenario could be seen as "unreasonable and disproportionate, because it could have been expected that a warning shot or even the announcement that he had a gun would have been sufficient to scare an unarmed youth off.”

"This is not even taking into account that under English law the possession of the gun would have been illegal anyway. So I very much doubt that self-defense would fly under English law,” he added.

The shooter might try to bargain for a manslaughter verdict if the partial defense of “loss of control” could be established, Bohlander said.

Under the Coroners and Justice Act 2009 of English law, a person who kills someone should not be convicted of murder if they did so because of a "loss of self-control" because of fear of serious violence. Their actions also need to be in keeping with how a person of the same sex and similar age "with a normal degree of tolerance and self-restraint" would have acted in the circumstances.

However Bohlander said “it would seem unlikely that a jury would find that loss of control provided a defense here.”

Trayvon Martin's parents, Sybrina Fulton and Tracy Martin, react to George Zimmerman's first television interview, telling TODAY's Matt Lauer that they wish Trayvon Martin could tell his side of the story.

GERMANY
Bohlander, who was previously a judge in Germany and dealt with murder cases, said a shooter in a case like this in Germany would probably be charged with “totschlag,” a basic murder charge that requires intent to kill.

However, if there was some kind of racist motivation, he would “very likely” be charged with “mord” or aggravated murder, Bohlander said. 

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If convicted of “totschlag” he would face a sentence of five to 15 years. “Mord” is punishable by a mandatory life sentence with no chance of parole until after 15 years in prison.

Bohlander said it was “highly unlikely” that self-defense would be a justification in this case under Germany law, which he said was similar to English law in this area.

He said a “less serious” case of totschlag “could be imagined if [the shooter] was seriously maltreated by [the deceased] and immediately lost self-control.”

However, Bohlander said this argument seemed “unlikely” to persuade the court and, even if successful, would lead to a sentence of one to 10 years.

According to an FBI report investigating whether race was a factor in the shooting of unarmed teen Trayvon Martin, none of the dozens of people the FBI interviewed said shooter George Zimmerman is a racist. NBC's Kerry Sanders reports.

SOUTH AFRICA
Jonathan Burchell, professor of criminal law at South Africa’s University of Cape Town, said that, under the country's criminal law, a shooter in such a case might be able to show that “although he may have acted unlawfully, he nevertheless genuinely lacked the knowledge or foresight of the unlawfulness of his conduct because he may have genuinely feared for his own life and so not be liable for murder.”

“The question would then be whether this belief of [the shooter] was not just genuine, but also reasonable in the circumstances. If [the shooter]’s belief was unreasonable in the circumstances -- seeing as he was the one armed … and that he had been told by the police not to pursue [the deceased] -- he could be liable in South Africa for culpable homicide, the unlawful, negligent killing of another, as opposed to murder which is the unlawful, intentional killing of another,” he added.

Even if the shooter had provoked the encounter, Burchell said, “he could still in principle act in self-defense to unlawful attack upon himself …. if the provoked response exceeded the initial provocation.”

But, he said the shooter still needed to “act reasonably.”

“[The shooter]’s use of a single lethal shot at close range must, according to the principles of self-defense, be proportional to the attack by [the deceased],” Burchell said.

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He said authorities would take into consideration whether a warning shot or a “shot to incapacitate, rather than kill” could have been fired.

“There is no duty to flee in South African law, but if there are reasonable alternatives available the accused should use these before resorting to lethal force,” Burchell said.

He said it was possible that the deceased had been acting in self-defense if he did actually confront the shooter.

“There could possibly have been a situation where [the deceased] anticipated an imminent attack on himself by [the shooter] when they had the ‘verbal exchange’ ... and that [the deceased] was therefore the one defending himself against threats or imminent infliction of harm by [the shooter].”

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Burchell said that the shooter “could be charged with, and possibly convicted of, culpable homicide.” 

He said that a sentence for culpable homicide would be at the judge’s discretion and would be less than one for murder.

Burchell added that the shooter's “persistent following” of the deceased, “who has not done anything wrong,” could “amount to invasion of privacy” or “injury to dignity in the form of harassment.” This was a criminal and civil offense in South African law, he said.

After Judge Kenneth Lester set a bond of $1 million, Zimmerman made bail with strict conditions governing his release. NBC's Kate Snow reports.

CANADA
Andrew Botterell, the associate editor of the Canadian Journal of Law & Jurisprudence and an assistant professor at the University of Western Ontario in the law faculty and philosophy department, said a shooter would likely be charged with second-degree murder in Canada.

“First degree murder is out, since there was no planning and deliberation … The issue is whether [the shooter] intended to kill [the deceased], or intended to cause him bodily harm knowing that death was likely to result,” Botterell said. “I think a good case can be made that [the shooter] did intend to cause bodily harm — he didn't shoot [the deceased] in order to scare him — and he knew that the likely result of shooting somebody in the chest would be death. This suggests that a charge of second-degree murder would be appropriate.”

Botterell said they “key question” would be whether the dead teenager's assault on the shooter was provoked or unprovoked.

“... [Canadian law] requires among other things that in order for the accused to be entitled to the defense of self-defense the accused must have ‘declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose,’” he said.

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If the shooter clearly did not retreat when he had a chance to do so, then he would not be entitled to self-defense if he had provoked the assault, Botterell said. 

He said that if it was established that the teen's assault was not provoked by the shooter, then the law still required the shooter to show he believed “on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm” except by using lethal self-defensive force.

“Were [the shooter's] actions reasonable in the circumstances? Would a reasonable person in his position believe that only by using lethal force could he preserve his life? Possibly, if we take the banging of the head into the pavement to indicate an intent to cause death or grievous bodily harm,” he said. “If [the shooter’s] defense is accepted, he would be acquitted. If it were rejected, he would be sentenced … to life imprisonment, with no eligibility for parole for 10 years.”

CHINA
Margaret Lewis -- associate professor of law at Seton Hall University, New Jersey, and an expert in Chinese law and criminal law – said the situation in China was “so different … that I'm hesitant to say definitively ‘here's how it would be handled.’”

She said justifiable self-defense was defined in “quite broad terms, leaving significant discretion in the hands of” prosecutors and judges.

“The lack of transparency as to how individual cases are handled in China makes it difficult, if not impossible, to project the specific charges and verdict,” Lewis said.

“That said, in light of the extremely high conviction rate, if [the shooter] was charged, I feel confident that he would be convicted of some crime. Not-guilty verdicts are extremely rare in China and, instead, the trial is generally more focused on what punishment is appropriate,” she added. “The high-conviction rate once charges are filed means that early intervention by lawyers during the initial investigation stage is particularly important if a suspect hopes to avoid criminal liability, or at least face lesser charges.”

She said it was “unlikely” that an accused person would be given bail pending trial.

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Lewis said that self-defense was “a timely issue in China because the nephew of blind activist Chen Guangcheng, who arrived in the U.S. earlier this year, was facing criminal homicide charges “arising out of an alleged altercation when police broke into his home when searching for his uncle.”

“The nephew claims he acted in self-defense, but reports are that local authorities have thus far refused to let the nephew select his own lawyer, a clear violation of the Criminal Procedure Law,” she added. “This case is unusual because of the highly politicized nature of the case, but it is a helpful illustration of the continuing challenges that defendants face in China when trying to exercise their legal rights.”

The fictionalized case provided to experts
1. Neighborhood watch coordinator John Smith, who is carrying a firearm, sees someone he thinks is acting suspiciously and begins to follow him, at first in his car, then on foot. The “suspicious” person, Charles Jones, has not done anything wrong. He has just been to a shop to buy some candy and a drink and is returning to the house where he is staying.

2. Smith calls the police while he is following his suspect, asking for a police officer to come and saying “These @!$%#s, they always get away.” He is told not to follow Jones.

3. Jones runs away and Smith loses sight of him.

4. Smith starts to return to his car. Jones returns and there is a verbal exchange.

5. Jones punches Smith, knocking him to the ground, then bangs his head off the ground.

6. Smith shoots Jones in the chest.  The range of the shot is disputed, the gun is either in contact with Jones’ clothing or was fired at “intermediate” range. Police arrive, attempt to revive Jones, but he is pronounced dead at the scene.

7. Smith sustained a "closed fracture" of his nose, a pair of black eyes, two lacerations to the back of his head and a minor back injury.

8. Smith claims self-defense.

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