Just when you thought the Zimmerman case couldn’t get any crazier, here we go.

An amicus curiae brief has been filed in support of a motion to re-try George Zimmerman for second-degree murder. The full brief is embedded at the bottom of this post. (“Amicus curiae” literally means “friend of the court”, not a party to the action.)

Not only that, the brief argues that the prosecuting team should be found guilty of professional misconduct (no argument there), that they should therefore be disqualified from re-trying the case, and that a new prosecution team should be selected for this re-trial. And by whom should this new team of prosecutors be chosen? Why, by Martin family lawyer Benjamin Crump and cohorts. Naturally.

Chris Hansen To The White Courtesy Phone, Please

Before we get to the merits (ha-ha) of this brief, it might be worth taking a look at who authored this legal filing. Certainly not Angela Corey’s team who are called out as incompetent in the document. Was it Governor Scott, finally recognizing the enormous blunder that was the assignment of Corey to this case? No. Was it perhaps the Federal Department of Justice, seeking to relieve Sharpton’s racist tumescence by any means necessary? No, after some early jawing the DOJ has pretty much disappeared from this matter, as anticipated. Was it perhaps even Benjamin Crump himself? No again.

The filing was made by someone identifying themselves as Cleve L. Molette, residing at 4552 Old Dixie Hwy #272, Forest Park, GA 30297. Curiously, there was no bar association number, which lawyer’s routinely include on their filings, suggesting that Mr. Molette is not himself an attorney. Laughably, Mr. Molette includes as his email address “[email protected]”. (Get it? “I am Trayvon.”).

So, who is this Cleve L. Molette? Naturally, I turned to Google. Seconds later I had a screen full of results, including one from the Georgia Bureau of Investigation (GBI). They, too, had a record of a Cleve L. Molette residing at 4552 Old Dixie Highway, #272, Forest Park, GA 30297. I’m guessing it’s the same guy.

Why, one might wonder, would the Georgia Bureau of Investigation have such a record of Mr. Molette? Because on July 23, 2010, at the age of ~47 years, Cleve L. Molette was convicted of sexual battery against a child under 16 years of age. As a result, he was required by the state to register as a sex offender, a registration maintained as a publicly accessible record by the GBI.

Mr. Molette also appears to be something of a recreational jailhouse lawyer, having filed a variety of amicus curiae briefs in other cases. He also represented himself on Federal appeal of dismissal of a suit he filed against Georgia officials over an incident in which he was arrested for loitering and had a handgun he was carrying seized. (He lost that appeal: Molette v. Georgia, US 11th Cir., 2012.)

Molette Claims Prosecution Erred When Failed to Request “Aggressor” Instruction

Having thus informed ourselves on the man behind the brief, let’s take a look at the merits of his argument. In essence, Mr. Molette argues that the jury should have been read an “aggressor” instruction and that the failure to have this instruction read justifies a retrial of George Zimmerman.

So, what is an “aggressor” instruction?

The first fundamental principle of the law of self defense is “Innocence” (see Chapter 2, “The Law of Self Defense, 2nd Edition”). This means that the right to justify one’s use of force against another person is normally reserved only for the innocent party. In contrast, a person who initiated, continued, or sustained a fight—the aggressor—is not normally entitled to justify his use of force as lawful self-defense.

This fundamental principle is found in one form or another in the self defense law of all 50 states. In the case of Florida it is found in statute 776.041, which provides in relevant part:

776.041 Use of force by aggressor

The justification described in the preceding sections [describing lawful self-defense] is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself . . .

This language is mirrored in Florida jury instruction 3.6(f), which provides in relevant part that:

Florida Standard Jury Instruction 3.6(f). Justifiable Use of Deadly Force

However, the use of deadly force is not justifiable if you [the jurors] find:

(1) Defendant was attempting to commit, committing, or escaping after the commission of an applicable forcible felony; or

(2) Defendant initially provoked the use of force against himself/herself . . .

So, does Zimmerman qualify as an aggressor for the purposes of an aggressor instruction? Mr. Molette argues that he does, stating:

George Zimmerman was both the defendant and was charged with a forcible felony [murder]; Then, pursuant to Florida Standard Jury Instructions 3.6(f), the jury should have been instructed with Fla. Stat. 776.041, Aggressor, concerning whether Zimmerman committed a forcible felony against Trayvon Martin, or whether Zimmerman initially provoked the use of force against himself.

Shocker: Turns Out Molette’s Understanding of Actual Law is Negligible

Unfortunately for Mr. Molette he is mistaken on all counts.

With respect to whether Zimmerman would qualify for this instruction under subsection (2), “initially provoked the use of force”, there was not a sliver of evidence at trial that Zimmerman did anything that could have reasonably provoked Martin’s vicious aggravated assault on him.

With respect to whether Zimmerman would qualify for an aggressor instruction under subsection (1), “committing a forcible felony”, to wit murder, Mr. Molette also fails to understand how the law applies here.

Remarkably, Mr. Molette comes to his error error despite acknowledging in his own brief that an aggressor instruction applies “only if the defendant is charged with an independent forcible felony” (emphasis added). The controlling law here is found in Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002), which was cited favorably as recently May 2012 in Santiago v. Florida, 88 So.3d 1020 (FL Ct. App. 2012).

In Giles the defendant got into an altercation with at a poker game and smashed the victim in the mouth with a brick. He was charged with aggravated assault. At trial, it was agreed the jury would be instructed on self-defense. Over defense objection the judge also read the jury the aggressor instruction, including:

The use of force . . . is not justifiable if you find that the defendant was attempting to commit, committing or escaping after the commission of an aggravated battery.

Giles was convicted, and appealed.

The appellate court agreed that the instruction was in error, and was likely to confuse or mislead the jury.

This case was not one where the alleged aggravated battery occurred while Giles was attempting to commit, committing, or escaping after the commission of some other independent forcible felony. The instruction is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony. Here, by contrast, Giles committed only one act, the alleged aggravated battery.

The instruction given improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that 776.041(1) would apply to preclude a self-defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense. Thus, even if the jury found that Giles’ act of aggravated battery was committed in self-defense, then the use of force was not justifiable because the act itself is a forcible felony. This reading, however, is erroneous because the proper test for determining the applicability of the instruction is not whether the self-defense act itself could qualify as a forcible felony, but whether, at the time of the self-defense, the accused was engaged in a separate forcible felonious act. Here, Giles was not engaged in a separate felonious act at the time of the alleged aggravated battery and so the instruction was inapplicable. At the very least, the instruction given was circular and confusing to the jury such that it basically negated Giles’ defense.

Giles’ conviction was reversed.

So, based on the actual law there is no basis on which the jury should have been read an aggressor instruction in the Zimmerman case, and to have read such an instruction and achieved a conviction would most certainly have been reversible error.

Can Improper Jury Instruction That Results in Acquittal Lead to Re-Trial?

Let’s pretend for the moment, however, that an aggressor instruction would have been appropriate in this case. Mr. Molette then goes on to argue that:

The jury instructions in this case were contrary to law. The jury’s deliberations where [sic] conducted using the erroneous instructions. Therefore, the verdict rendered is likewise contrary to law. A verdict contrary to law is proper ground [sic] to GRANT a new trial.

But is that really what Florida law says? So, sorry, Mr. Molette, I’m afraid not. In fact, “an erroneous instruction is not a ground for reversal if its effect is favorable to the defendant.” Roberts v. State, 113 So. 726 (1927).

So, even if an aggressor instruction had been warranted, and failing to so instruct the jury was error, so long as the instructional error was favorable to the defendant it is not grounds for reversal.

Plus, there’s the whole “double jeopardy” thing—but Mr. Molette ignores this in his brief, and I’ve already spent enough time debunking his legal silliness.

Hey, maybe Angela Corey will Appoint Cleve Molette Assistant State Prosecutor (just a joke)

Having now thoroughly debunked Mr. Molette’s brief, it is nevertheless striking that his legal reasoning and politically motivated twisting of the law is really no more deficient than that exhibited by Angela Corey, Bernie de la Rionda, John Guy, and Rich Mantei.

Who knows, perhaps they’ll soon have another peer with they can maliciously wield the power of the State to destroy the lives of other innocent Floridians.

If you have trouble finding Mr. Molette, Angela, just call the Georgia Bureau of Investigation—they’ll know where he is.

For those who are interested, here’s Mr. Molette’s amicus curiae brief:

Zimmerman Case – Amicus Brief Filed by Cleve Molette July 23 2013

Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense, 2nd Edition” now available at www.lawofselfdefense.com as well at Amazon.com, as either a hardcopy or in Kindle version, and at Barnes & Noble as hardcopy or in Nook version.

Andrew has also launched a series of state-specific supplements that dive deep into ever relevant statute, jury instruction, and court case that defines the law of self-defense in a particular state. Supplements are now available to order pre-publication for Florida, Georgia, Ohio, Texas, and Virginia at 38% off list price.

You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.



