Below is a slightly expanded version of today’s column in USA Today on the Zimmerman verdict. As I wrote before the case was sent to the jury, I saw no alternative to acquittal even on manslaughter and expected the jury to render a full acquittal. I respect the conflicting views of many on this blog on the case and how it was charged and handled. We will now have to wait to see if the Justice Department will re-try Zimmerman as a civil rights matter. I have serious reservations about such an effort, but that can be for a later discussion. For now, a few observations on the verdict can serve to as a foundation for our own discussion.
SEPARATING LAW AND LEGEND IN THE ZIMMERMAN VERDICT
The acquittal of George Zimmerman in the death of Trayvon Martin was not minutes old when an outcry was heard over racial injustice and demands for yet another prosecution by the Obama Administration. There was even a call for President Barack Obama to address the nation from the Oval Office to promise action to quell projected violence. With the verdict, the George Zimmerman case entered the realm of legal mythology – a tale told by different groups in radically different ways for different meanings. Fax machines were activated with solicitations and soundbites previously programmed for this moment. The legal standards long ago seemed to be lost to the social symbolism of the case.
Criminal cases make for perfect and often dangerous vehicles for social expression. They allow long-standing social and racial issues to be personified in villains and victims. We simplify facts and characters – discarding those facts that do not fit our narrative. We pile meanings on the outcome that soon make the actual murder secondary to the message. George Zimmerman and Trayvon Martin became proxies in a long-standing our unresolved national debate over race.
Before the case is lost forever to the artistic license of social commentary, a few legal observations should be considered, even if unpopular, before condemning this jury.
First, many of us from the first day of the indictment criticized State Attorney Angela Corey for overcharging the case as second-degree murder. While Corey publicly proclaimed that she was above public pressure, her prosecution decisions suggested otherwise. Investigators incorporated the family in key interviews. For example, one key witness was first interviewed by an attorney for Martin’s family and then talked to prosecutors in the home of Martin’s mother. The prosecutors were accused of withholding evidence from the defense until shortly before trial — a delay that the defense said denied them the ability to use text messages that portrayed Martin in a more violent image.
However, the widespread protests and anger over the shooting seemed to have its greatest impact on Corey’s decision to charge the case as murder in the second degree. This was clearly a challenging case even for manslaughter and the decision to push second-degree murder (while satisfying to many in the public) was legally and tactically unwise. The facts simply did not support a claim beyond a reasonable doubt that George Zimmerman acted with intent and a “depraved mind, hatred, malice, evil intent or ill will.” Had Corey charged manslaughter, the case might have been closer but would have still been a challenge.
Many people were highly critical of the prosecution for putting on what seemed like a case for Zimmerman. The prosecution clearly made its share of mistakes like leading its case with the testimony of Trayvon Martin’s friend, Rachel Jeantel. Jeantel was a disastrous witness who had to admit to lying previously under oath and produced conflicted testimony. She also stated that just as Zimmerman was accused of calling Martin a derogatory name, Martin called Zimmerman a “cracker.”
The prosecution consistently overplayed its hand in a desperate attempt to overcome its own witnesses, such as handling the damaging testimony from the detective that Martin’s father clearly denied that it was his son calling for help (He later changed his mind after listening to the tape 20 times). Even after being criticized by many experts for overcharging the case, the prosecution proceeded to make a demand at the end of the trial that the jury be able to convict Zimmerman on a different crime: third degree murder based on child abuse. The judge wisely rejected that demand but allowed the jury to consider manslaughter as a lesser charge.
However, in the end it was the case and not the prosecution that was demonstrably weak. The fact is that we had no better an idea of what happened that night at the end of this trial than we had at the end of that fateful night. Jurors don’t make social judgments or guesses on verdicts. While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. That is not unlawful. It was also lawful for Zimmerman to be armed. The question comes down to who started the fight and whether Zimmerman was acting in self-defense.
Various witnesses said that Martin was on top of Zimmerman and said that they believed that Zimmerman was the man calling for help. Zimmerman had injuries. Not serious injuries but injuries to his head from the struggle. Does that mean that he was clearly the victim. No. It does create added doubt on the question of the use of lethal force.
There is also no evidence as to who threw the first punch or committed the first physical act in the struggle. A juror could not simply assume Zimmerman was the aggressor. Zimmerman was largely consistent in his accounts and his account was consistent with some witnesses. After 38 prosecution witnesses, there was nothing more than a call for the jury to assume the worst facts against Zimmerman without any objective piece of evidence. That is the opposite of the standard of a presumption of innocence in a criminal trial. There was evidence to support both accounts but that evidence remained in equipoise, leaving the jury with no objective basis to reject one over the other.
Even for manslaughter, the jury had to find that George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin. but was told that “a killing that is excusable or was committed by the use of justifiable deadly force is lawful.” The jury instruction on deadly force states in part: “A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” That lesser charge still brings the jury back to the question of who started the fight and how the fight unfolded. The prosecutors never had evidence to answer that question in a reasonably definitive way. In the end, the jury had no serious alternative to acquittal. That does not mean that they liked Zimmerman or his actions. It does not even mean that they believed Zimmerman. It means that they could not convict a man based on a presumption of guilt.
Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. A legend is defined as “a traditional story sometimes popularly regarded as historical but unauthenticated.” People will make what they will of the murder trial of George Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
203 thoughts on “SEPARATING LAW AND LEGEND IN THE ZIMMERMAN VERDICT”
Excellent analysis of this case. The best I’ve seen so far.
The older expression “beyond a shadow of a doubt” did a better job of communicating what was needed. “Beyond a reasonable doubt” contains a subtle ambiguity. After all what is reasonable? For that matter what counts as reason? If I were a juror I would find the shadow rather than the reasonable a better guide.
The book deal has been dropped.
I see no reason for people to leave when they disagree with someone…..The most growth in knowledge comes when someone can process what one knows to be truth against something that they totally disagree with and still be able to reconcile that other folks truths may not be their truth…..and still be friends….
What Frank Mascagni said. The system worked, but we need to change the law in Florida and everywhere there is the ALEC written Stand your ground laws.
Thank you for your excellent insight on this issue. I have seen almost no person who hasn’t based his or her comments on this case without bias, one way or the other.
Thanks for your response.
When trial lawyers are in a jury trial, you frequently hear them in voir dire, openings and closings state to the jury in sum and substance: “you are to set aside your personal feelings, sympathies and emotions and render a verdict on the facts and the applicable law as given to you by the judge”. This is said along with ” …you don’t set aside your life’s experience, your common sense…” in reaching a verdict.
It is interesting, to watch or be an attorney in a criminal jury trial. My take would be that a criminal jury trial is not really a “search for the truth” because both sides to the litigation are looking for a biased jury… biased to their point of view. Both sides argue to admit or exclude evidence under the rules of criminal evidence and reported case law in their jurisdiction. A trial is not real life in that sense. It is a portrait of a “crime”/”defense” limited by the law and governing rules of criminal procedure and evidence rules; by the skills/or lack thereof, of the prosecutor and defense counsel; knowledge of the presiding judge, etc. It really is not supposed to address and cure other considerations of race, public opinion, conventional wisdom, etc.
So it is restricted to what the jury actually hears during the trial. I sometimes remark in closing to the jury, I wish you could have heard the case at the bench conferences, instead of seeing my backside and growing impatient with all my objections and interruptions.
It is truly a unique experience. I still enjoy the practice of law. I have disagreed with some jury verdicts, but I always understood how they reached their conclusions; I’ve seen “guilty” clients walk out or with a lesser sentence than charged and sought; I’ve seen “innocent” clients get convicted. But I must say, I respect the system and am proud to state it works most of the time.
I quoted Martin Luther King in my earlier post to affirm that I do believe “justice” was done in this case. Not the same “justice” perhaps that was sought by the state, nor by anyone affected by the verdict concluding that it was not the correct one, but one affirming the criminal justice system worked. I man was charged, both sides had their day in court, and the parties did their jobs, including the jury, based on the restrictions placed upon them by the law in that jurisdiction.
As to the question about the juror book: I don’t like these kinds of publications ( I didn’t buy any of the O.J. Simpson ones, Rodney King’s nor Casey Anthony). Welcome to another American concept: capitalism.
I trust I have responded to your thoughts.
Now we’ll get to know what happened in the jury room. One of the jurors, B37, has a literary agent to hawk her book.
The link provides her entire voir dire. A couple of snippets:
– She referred to the killing of Trayvon Martin as “an unfortunate incident that happened.”
– Asked by George Zimmerman’s attorney to describe Trayvon Martin, she said, “He was a boy of color.”
She also characterized the protests wanting an arrest as “riots”.
I meant to add that my intuitive recoil at the notion of the “letter of the law” trumping all other considerations. The letter of the law is, as I understand it, a starting point, not the end point of consideration.
Otherwise there would be no need for courts to examine the facts of the case, and to make determinations about how to apply the law in the specific case.
That said, I think it is this legal fundamentalism that drives much of our society today leading to such disasters as “Three Strikes” laws, Profoundly errant “Drug Wars”, and mandatory sentencing laws.
I am a criminal defense trial attorney, practicing criminal law since 1977. My “two cents”: the judge did a great job handling the objections and rulings on admission/denial of proffered evidence; the government had a very difficult case to prosecute based on the ADMISSIBLE EVIDENCE; I personally believe the original charge was very difficult to prove based on all the facts it had; but, the system worked.
Whether you agree or disagree with the 6 member verdict, Zimmerman has a constitutional right to be presumed innocent and only convicted by a 6/6 vote (under FL state law), based upon competent admissible evidence beyond a reasonable doubt, of each element of the crime(s) charged. The government did not reach it’s burden of proof, in my opinion.
As I explain, when asked: the jury is not asked if Zimmerman was “GUILTY or INNOCENT”, but rather, “Guilty or Not Guilty” beyond a reasonable doubt by the evidence it heard. The criminal justice system is flawed, but after 36 years, I still believe in the system, acknowledging it needs to be monitored, reviewed, questioned and tweaked.
We should agree to disagree on this site and remain civil and professional.
I am reminded of a quote I still strongly believe and adhere to:
“Injustice anywhere is a threat to justice everywhere”.
Martin Luther King Jr., Letter from Birmingham Jail, April 16, 1963
I appreciate, and accept, the basic point of your post.
So saying it seems to me that it is a matter of scope and context; meaning, In the small context of this case, this courtroom et al, as you detailed, yes, your conclusions make perfect sense.
In the larger context, which you allude to in your quoting of King, the case does not make the same sort of sense. Certainly not in the sense of “justice”.
My particular angle on this and other issues is one to make distinctions and to deal with issues/points at the appropriate levels. Sometimes, like this one, there are more than one level at which a thing/event operates. I think much of the rage, and the move to irreconcilable positions even as exampled on this board, re this post, is an example of what happens if we muddle the discussion with a lack of clarity of what level is under discussion.
Here is one example I would love your take on:
In this article http://www.salon.com/2013/07/15/zimmerman_trial_juror_to_write_book/ (apparently a book deal is already in the works) there is this line justifying the book and apparently the verdict: “…how important, despite one’s personal viewpoints, it is to follow the letter of the law.”
I say that both of these premises are flawed. It is not only ones personal viewpoints, but a larger and more salient understanding (even a “gut” understanding) of “Justice” that should have been counterpointed. And the point about the need to follow the letter of the law sounds too much like “… we were just following orders…”. If that were or if that is the governing proposition in a jury trial, then it seems that basically what the judge allows essentially trumps the reason we have juries.
I don’t think that is correct? But it reads like it is. Is it?
I have been under the notion that juries were there to allow a sort of “common sense” “common man” corrective to a system that sometimes/often times gets so full of itself that it cannot render justice.
Sling, you are nuts. You are in denial:
Bottom line again: The theory that Zimmerman’s facial wounds were caused by the recoil from firing his own gun or were self-inflicted holds no water. And the prosecution knew that. The prosecution wasn’t stupid, and if they could have presented your theory, they would have.
So, Sling, was the prosecution stupid, lazy, or they couldn’t find an expert who they would be willing to risk putting on the stand? Those are the ONLY alternative explanations for not presenting an expert to present your theory. (Well, only LOGICIAL explanations. And I realize that logic means little to you.)
Correction; I said, The case is put with overview by experts in the law to prevent what we know are logical errors in the law that might unfairly influence the jury,
I did not mean the law was in error; I meant “to prevent what we know are common logical errors in argumentation, identified by the law, that might unfairly influence the jury, …”
Sorry, I was already thinking about a subsequent argument while typing that one.
Steve McAllister: The fact that the prosecution could not PROVE BEYOND A REASONABLE DOUBT who was on top of whom means that there was REASONABLE DOUBT.
That’s ridiculous; why does being on top mean anything at all? In high school I was in wrestling matches, and no matter where I started, 80% of the time I ended up on top. If somebody tackles you and knocks you down, does that mean you cannot ever end up on top? Obviously you have very little experience grappling or fighting, the aggressor in a street fight doesn’t automatically win every fight.
Steve McAllister: Justice means making the right legal decision no matter how unpopular or what the social costs might be.
No, it doesn’t. The idea of Justice existed before the law, the idea of Justice is that people that do bad things get punished and those that had good valid reasons for doing what they did do not get punished. If Justice meant only making the right legal decisions, juries would be made only of people that passed law school. But they aren’t, they are made of common people with no training in the law at all. The law exists to help us mete out justice, but it can get things wrong: That is why we allow ourselves the leeway to make NEW law to better approximate justice, and repeal OLD law we realize had led to LESS justice.
Staying within legal boundaries is just supposed to more reliably produce justice, it is not guaranteed to produce justice. We put the case to a jury of common citizens to figure out, as best they can, what happened. The case is put with overview by experts in the law to prevent what we know are logical errors in the law that might unfairly influence the jury, because only people with extensive training in how such errors manifest themselves can recognize them and excise them.
But both the law and the jury can make mistakes, we know in the past that innocent people have been put to death and ruthless killers have gone free. That is not “justice,” neither got the punishment they deserved. Justice is about the outcome and whether people deserve the freedom or punishment they get. The law is our imperfect and evolving (and sometimes devolving) definition of what is right and wrong and how we are allowed to get to the right outcome.
Steve McAllister: This case from the start should not have had charges brought.
That is ridiculous too. Should we just pre-judge all cases? If a person is killed and the only person that really knows the circumstances of that killing is the killer, should we always just take their word for what happened?
Wouldn’t that be a terribly convenient rule for hit men? Just find a way to lure a victim into walking through a door that puts them alone in a room with the hit man, and murder them. Then the hit man claims the victim attacked him, he had no choice, and the police say, “Amazing how often that happens. Off you go, then.”
Charges and the court system are our creaky machine for finding out what really happened, and there are two reasons it does nothing: First and foremost it does nothing because that is the right thing to do; but secondly it does nothing when it fails to determine what happened with enough certainty to risk doing something. But such failures do not mean that what really did happen did not deserve punishment, it only means our law and judgment are not good enough at getting to the truth, and need more work.
It’s very simple.
It cuts both ways.
Doing what no “reasonable or prudent person would do under the same circumstances” = reckless
There in NO REASONABLE DOUBT but that Zimmerman was reckless in following blindly into the dark on the heels of someone he asserts had circled his truck and threatened him.
Added to that, there in NO REASONABLE DOUBT but that Zimmerman was reckless in staying in that dark area for at least 3 minutes after he explicitly stated in the NEN that he believed that the person he says had circled his truck and threatened him could by close by in the dark.
Reckless actions leading directly to a death. Manslaughter.
It was a completely unnexesary death.
It would not have happend had Zimmerman not been grossly reckless.
It is very very very simple. The cornerstone of our criminal justice system is INNOCENT UNTIL PROVEN GUILTY BEYOND A REASONABLE DOUBT. The fact that the prosecution could not PROVE BEYOND A REASONABLE DOUBT who was on top of whom means that there was REASONABLE DOUBT.
Justice means making the right legal decision no matter how unpopular or what the social costs might be. You cannot convict someone because you don’t like them or you feel for the victims family. In order to convict you need to be convinced beyond any REASONABLE DOUBT that the person is guilty. That is the standard.
This case from the start should not have had charges brought. The Sanford PD and DA made the right call. They knew that no matter the OUTRAGE and IRRATIONAL EMOTIONAL calls for some type of perverted “JUSTICE” that they did not have the evidence to prove murder or manslaughter under Florida law BEYOND A REASONABLE DOUBT.
It cuts both ways… O.J. Simposon was acquitted because the prosecution could not meet the standard. I did not see any “OUTRAGE” when that happened???
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