Law and Legend: How The Zimmerman Case Was Lost By The Prosecution

zimmermantrayon-martin-picture1Below is today’s column on the Zimmerman trial, which is a close follow-up to the web column from the night of the acquittal.  As expected, it appears that we have lost a few regulars upset with my opinion of the case.  I am always sorry to lose people on our blog.  However, this has never been an echo-chamber blog that maintains a party line or ideological view.  While we remain fervently pro-free speech and civil liberties at this blog, we often disagree about the outcome of trials or the merits of cases or policies.  We try to maintain a site where civil but passionate disagreements and debate can occur.  As an academic and a legal commentator and columnist, I have always tried to be fair and call these cases as I see them regardless of how unpopular those views may be.  At the same time, I have enjoyed reading the opposing views of others on this blog who often make fast and lethal work of my opinions.  I realize that the killing of Trayvon Martin is loaded with social and racial meaning.  Yet, this site is dedicated to tolerance and diversity of views in discussing the legal and policy issues of our times.  I hope that those who stated that they would leave the site will return and rejoin our discussion. This is  a blog that values differing opinions and free thought. This is a chorus not a solo performance and it is the variety of voices and views that makes this blog so unique.

Here is today’s print column:

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.

With the verdict, the Zimmerman case entered the realm of legal mythology — a tale told by different groups in radically different ways for different purposes. Fax machines were activated with solicitations and sound bites programmed for this moment.

Criminal cases often make for easy and dangerous vehicles for social expression. They allow longstanding 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. Zimmerman and Martin became proxies in our unresolved national debate over race.

Many have condemned this jury and some even called for the six jurors to be killed or demanded that they “kill themselves.” The fact is that this jury had little choice given the case presented by the prosecutors. This is why I predicted full acquittal before the case even went to the jury.

Before the case is lost forever to the artistic license of social commentary, it is worth considering what the jurors were given, or not given.

State attorney’s misstep

The problem began at the start. Many of us 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 interviewed a key witness at the Martin home in the presence of the family — a highly irregular practice.

The decision to push the second-degree murder charge (while satisfying many in the public) was legally and tactically unwise. The facts simply did not support a claim beyond a reasonable doubt that Zimmerman acted with intent and a “depraved mind, hatred, malice, evil intent or ill will.” Had Corey charged manslaughter, the case might have turned out differently.

The prosecutors then made that bad decision of charges worse by overplaying their evidence to overcome the testimony of their own witnesses.

For example, the prosecution inexplicably decided to lead the case with testimony of Martin’s friend Rachel Jeantel. Jeantel was a disaster, admitting to lying previously under oath and giving conflicted testimony. She also stated that just as Zimmerman was accused of calling Martin a derogatory name, Martin called Zimmerman a “cracker.”

The prosecution’s zeal for conviction seemed to blind it to the actual strengths and weakness of the case. It also led to allegations of withholding key evidence from the defense to deny its use at trial, though Judge Debra Nelson seemed to struggle to ignore the alleged misconduct.

Some questions unanswered

Ultimately, 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 judgment or guesses on verdicts.

While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. 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 Martin was on top of Zimmerman and said they believed that Zimmerman was the man calling for help. Zimmerman had injuries. Not serious injuries but injuries from the struggle. Does that mean that he was clearly the victim? No. It does create added doubt on the use of lethal force.

A juror could not simply assume Zimmerman was the aggressor. 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.

Even for manslaughter, the jury was told that Zimmerman was justified in the use of force if he feared “great bodily harm.” That brought the jury back to the question of how the fight unfolded.

The acquittal does not even mean that the jurors liked Zimmerman or his actions. It does not even mean 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 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.

July 15, 2013

180 thoughts on “Law and Legend: How The Zimmerman Case Was Lost By The Prosecution

  1. Here’s most of a comment that I posted in another forum.
    It’s based on the Juror B37 interviews – showing that
    – Jurors wanted to find Zimmerman guilty of something.
    – Even B37 knows what he did was reckless and wrong.
    – She’s sure his stories had “fabrications and enhancements” but that it went generally as he decribed.
    – She says nobody knows where either of them went. They just ended up where they did.

    ————————————————————————

    “In the George Zimmerman case, justice was done,”
    Not so – and demonstrably not so.
    If we are to believe what Juror B37 says in her interviews, justice was NOT done.

    That “Not Guilty” does not mean “Innocent” might be a pedantic point as a generality.
    In the Zimmerman case, B37 seems clear that the jury did not consider Zimmerman “Innocent”.
    At least 3 wanted to sanction him for his recklessness and stupidity that led to a death. They found that the particular subsets of law that they were expressly limited to considering prevented them from doing what they wanted to do – as they understood within the complex instructions they were given. Even B37 who was on “Not guilty” even before the jury began to discuss the case thinks Zimmerman was wrong to get out f the truck.
    Clearly, justice was not done in the case.
    Inadequate law was done.

    Quotes from the B37 interviews by Anderson Cooper:

    I think George Zimmerman is a man whose heart was in the right place, but just got displaced by the vandalism in the neighborhoods, and wanting to catch these people so badly, that he went above and beyond what he really should have done. But I think his heart was in the right place. It just went terribly wrong.
    I think he’s guilty of not using good judgment. When he was in the car and he called 911, he shouldn’t have gotten out of that car.
    I think the roles changed. I think, I think George got in a little bit too deep, which he shouldn’t have been there. But Trayvon decided that he wasn’t going to let him scare him and get the one- over, up on him, or something. And I think Trayvon got mad and attacked him.

    COOPER: Did you take an initial vote to see where everybody was?
    JUROR: We had three not guilties, one second degree murder and two manslaughters.
    COOPER: Can you say where — do you want to say where you were on that?
    JUROR: I was not guilty.

    JUROR: Through going through the law. And then we had sent a question to the judge, and it was not a question that they could answer yes or no. So they sent it back saying that if we could narrow it down to a question asking us if — what exactly — not what about the law and how to handle it, but if they could just have — I guess — I don’t know
    COOPER: You sent a question out to the judge about manslaughter?
    JUROR: Yes.
    COOPER: And about —
    JUROR: What could be applied to the manslaughter. We were looking at the self-defense. One of the girls said that — asked if you can put all the leading things into that one moment where he feels it’s a matter of life or death to shoot this boy, or if it was just at the heat of passion at that moment.
    COOPER: So that juror wanted to know whether the things that had brought George Zimmerman to that place, not just in the minute or two before the shot actually went off.
    JUROR: Exactly.
    JUROR: Determining the self-defense or not.

    COOPER: Did you feel like you understood the instructions from the judge? Because they were very complex. I mean, reading them, they were tough to follow.
    JUROR: Right. And that was our problem. I mean, it was just so confusing what — with what and what we could apply to what. Because I mean, there was a couple of them in there that wanted to find him guilty of something. And after hours and hours and hours of deliberating over the law and reading it over and over and over again, we decided there’s just no way — other place to go.

    JUROR: It was just hard, thinking that somebody lost their life, and there’s nothing else that could be done about it. I mean, it’s what happened. It’s sad. It’s a tragedy this happened, but it happened. And I think both were responsible for the situation they had gotten themselves into. I think both of them could have walked away. It just didn’t happen.
    JUROR: I feel sorry for both of them.
    I feel sorry for Trayvon, in the situation he was in.
    And I feel sorry for George because of the situation he got himself in.
    .

    JUROR B37: I wanted to find him guilty of not using his senses
    JUROR B37: Exactly. He started the ball rolling. He could have avoided the whole situation by staying in the car, but he wanted to do good. I think he had good in his heart. He just went overboard.

    Despite being sympathetic to Zimmerman, she thinks that he lied in some of his story.

    I’m sure there were some fabrications, enhancements, but I think pretty much it happened the way George said it happened.

    She doesn’t specify.
    She hints at one area. She does not appear to take Zimmerman’s account of his movements in the pathway area as being necessarily truthful.

    JUROR B37: I think there were maybe some other issues and stuff leading between that, like what exactly — where George went exactly, and where Trayvon went exactly, because nobody knows where the two of them went to, but they both met in the back, and I think that’s where it started.

    She got that 2 minutes passed between the NEN ending and the Marin/Jeantel call dropping.
    She got that this clearly meant that Zimmerman was fabricating/enhancing when he claimed to be returning to his truck immediately.
    She didn’t get that this gap and the time of the Laeur 911 being detected (as opposed to being picked up by a dispatcher) meant that Jeantel would have heard the beginning of the struggle. Her attempt to explain why she thinks Jeantel could not have overheard would compete with anything that we heard out of Jeantel’s mouth.
    The prosecution fell down badly in not explaining matters to the jury – throughout.

    I would bet that the “other issues and stuff” included Zimmerman fabricating/enhancing a circling of the truck. Despite the dispatcher asking “Let me know if he does anything” right at the time he claims the circling happened, he does not mention it in the NEN. He omits the circling on Hannity, presumably because he realised that he had over-enhanced and therefore made his following/going-in-the-same-direction seem even more reckless.
    .

    What can we take away from the trial and the verdict?

    Jurors – even one very sympathetic to Zimmerman – think he was wrong in the lead up – that he should not have got out of the truck.
    Presumably any reasonable and prudent person would think the same, but this does not appear to be the case. I remember someone posting in another thread in this blog asserting that not alone would he do exactly as Zimmerman did, but that this would be what any red-blooded guy would do. I’ve seen many postings like that in various other blogs.
    .

    But let’s take a positive view. At least Zimmerman – whatever about anybody else – has learned not to be reckless and stupid, and so would be unlikely to something similar. Right?

    COOPER: Is George Zimmerman somebody you would like to have on a neighborhood watch in your community?
    JUROR: If he didn’t go too far. I mean, you can always go too far. He just didn’t stop at the limitations that he should have stopped at.
    COOPER: So is that a yes or — if he didn’t go too far. Is he somebody prone, you think, to going too far? Is he somebody you would feel comfortable –
    JUROR: I think he was frustrated. I think he was frustrated with the whole situation in the neighborhood, with the break-ins and the robberies. And they actually arrested somebody not that long ago. I — I mean, I would feel comfortable having George, but I think he’s learned a good lesson.
    COOPER: So you would feel comfortable having him now, because you think he’s learned a lesson from all of this?
    JUROR: Exactly. I think he just didn’t know when to stop. He was frustrated, and things just got out of hand.
    COOPER: People have now remarked subsequently that he gets his gun back. And there are some people that said that the idea that he gets — is — can have a gun, worries them. Does that worry you?
    JUROR: It doesn’t worry me. I think he would be more responsible than anybody else on this planet right now

    Cut to the Hannity Interview – 6 months after the events

    HANNITY: Is there anything you regret? Do you regret getting out of the car to follow Trayvon that night?
    ZIMMERMAN: No, sir.
    HANNITY: Is there anything you might do differently in retrospect now that the time has passed a little bit?
    ZIMMERMAN: No, sir.

    .
    Houston B37. We’ve had a problem!!
    .
    One of the best one-liners I’ve seen on the question was:

    The fundamental danger of an acquittal is not more riots, it is more George Zimmermans.

    .

    The problem for society is NOT the bearing of weapons by citizens.
    The problem is NOT CCW.
    The problem is in the concept of what “self defence” entails and how brain-dead laws describe it.
    I don’t think that anybody would assert that Zimmerman should be fearful of walking in the dark and should cower at home behind steel doors.
    Going into the dark on the heels of ‘a suspect’ that was well aware of your following and might even have threatened you should do away with any notion of self defence. That’s a job for uniformed cops, not for vigilantes who don’t even identify themselves when they have a chance to do so in safety.
    The problem for society is that an “innocent” Zimmerman would be seen as a licence for people as reckless and stupid he is to get themselves into situations and end up pulling their gun.
    .

    Zimmerman got “not guilty”, but the jury didn’t consider him “innocent”.
    The prosecution really messed up. The law messed up.
    A civil case should be taken – as a public service – in order to send out a clear message to stupid people.
    .

    Consider the logic behind the (broken in the case of Marissa Alexander) 10-20-Life law.
    Do something wrong. Suffer the consequences.
    Bring a gun to that wrong. Suffer more.

    What about someone who brings a gun to their own monumental f*ck-up and another person dies as a result?
    Try driving recklessly (although not strictly illegally) in a vehicle and end up killing someone..
    Manslaughter.

  2. @davidm2575 – If Trayvon had a legal gun too all I see, in hindsight, is a chaotic gunfight with both parties firing carelessly trying to not get hit seeking cover. Your idea involves SEVERAL body bags from collateral damage! Happens everyday in the urban streets of USA. Kids get hit a lot in places like Chicago, LA, Hartford, Syracuse, Miami, etc. Some of those guns where legal too – many were not though.

    It’s 9 minutes long. Go to time stamp 5:40 to see the gunfight…

    If you want to see the whole movie go here: http://www.youtube.com/watch?v=5t-nWlQNefQ It’s 2 hours 14 minutes.

  3. I think the most frightening aspect of the Zimmerman/Trayvon case is the distortions by the media and the Americans willing to believe their lies. It is always tragic that a young man dies. But what is the truth here? The media claims Zimmerman was ‘stalking’ Trayvon. The truth is Zimmerman was on the phone with police and being asked to verify where Trayvon was..Z hd to maintain a visual on Trayvon to comply with the police’s questions. The truth is Trayvon was acting suspiciously and an unknown to the neighborhood which was having a rash of home robberies. The truth is Zimmerman was headed back to his truck to wait for police when Trayvon sought him out with one thing in mind..to ASSAULT HIM. It has now been confirmed Trayvon did reach his dad’s apartment..why didn’t he just go in rather than go looking for a fight?!!
    People forget Trayvon assaulted Zimmerman rangling him to the ground using mmr tactics. If Zimmerman was out to ‘murder’ a black kid he would not have waited until he sustained injuries. And what caused Trayvon to act so violently. We know his auptosy reports damage to his brain and liver indictating drug use..particularly a drug called robotripping..a concoction of cough medicine,candy and a pop. Trayvon was carrying 2 of those ingrediants.
    And by the way..police did find a burglary tool hidden in the bushes at the apartment complex. Could Trayvon indeed been casing the apartments.(He had been found to be carrying jewelry and a tool used for burglary at one time)

  4. Guest,

    If you took the time to check the basic facts for yourself rather than regurgitate stuff you heard somewhere, you might find that the “the most frightening aspect of the Zimmerman/Trayvon case is” how wrong you were.

    Just to take a few of your misunderstandings:

    “The truth is Zimmerman was on the phone with police and being asked to verify where Trayvon was..Z hd to maintain a visual on Trayvon to comply with the police’s questions.”

    Here’s a mind-blowing idea …. try listening to the recording of his NEN call.
    “Are youi following him?”
    “Yeah”
    “We don’t need you to do that”.
    He had already told the dispatcher that the person was headed for the back entrance. Job done – Thank you -The cops take over now. We don’t need you to follow.

    “The truth is Zimmerman was headed back to his truck to wait for police when..”

    Here’s another mind-blowing idea …. try paying attention to timestamps taken form NEN, 911 calls and the Martin/DeeDee call.
    Zimmerman had ended his call 3 minutes before the confrontation started.
    He says that he ended the while call standing on Retreat View Cirlce – where he had gone to get an address – an address that he never gave to the dispatcher. There is no evidence apart from his say-so that he actually went to RVC.
    It would have taken him 20 seconds to get from RVC to the T-junction. What was he doing for 3 minutes? That has never been explained.
    Near the end of the call, he agreed to meet the cops at the mailboxes – just beyond his truck. He then suddenly changed that. He asked that the cops phone him on arrival to find out where he is.

    So….
    He was not asked to maintain a visual. He was specifically told “We don’t need you to do that” (follow)
    By simple timing of his exit from his truck in the NEN, he was still in Twin Trees when he was told not to follow. He clearly kept movng after Martin despite that.

    He was still in the dark central path area 3 minutes after he ended the call.
    Going by what he said at the end of the call, he did not intend to return to his truck. Whatever plan he had suddenly come up with at the end of the call, he did not know where he was going to be when the cops arrived.
    It was dark. It was raining. He had reported”The suspect”

    “It has now been confirmed Trayvon did reach his dad’s..”

    No it has not. What is your basis for saying so?

    “police did find a burglary tool hidden in the bushes at the apartment complex”.

    No they did not. What is your basis for saying so?

    The rest of your comment is full of similar holes.

    How about the “circling of the truck”?
    Listen to the NEN. He describes Martine approaching the truck – which truck just happens to be parked on Martin’s natural route home from the 7/11.
    The dispatcher says “Let me know if he does anything”.
    Zimmerman describes nothing. Even without being asked to describe events, we would have expected to hear “HE’S CIRCLING MY FREAKING TRUCK!!!”.
    Zimmerman clearly invended teh circling after the event to make Martin appear more threatening.
    .
    .

    The truth is that Zimmerman is not a child/black-stalking homicidal maniac. He was and is just an officious and incompetent idiot with a very messed up head.
    In the words of one of the jurors “He didn’t know when to stop”. He screwed up big-time and somebody died because of that.
    The charge should have been manslaughter.

  5. @ guest your response was just regurgitated from Fox news and their ongoing self victimization ramblings about the media. Your facts are wrong get them straight and then try to make a worthwhile point.

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