Yesterday, the Justice Department closed the book on the George Zimmerman case with the announcement that it will not file federal civil rights charges. When Attorney General Eric Holder ordered in federal investigators soon after the shooting of Trayvon Martin, some (including myself) questioned the legal basis for entering the case based on the still developing evidence. The Justice Department usually allows state or city prosecutors and police to finish their investigation before entry into a case. Holder was viewed as responding to political pressure in ordering the premature entry in the case. That investigation will now end shortly before Holder leaves his very controversial tenure as Attorney General.
“Now if I stop there it sort of sounds like I’m asking you to let my guilty client go,” O’Mara told the jury. “I’m not. He’s not guilty of anything but protecting his own life. But the quote continues, ‘but for guilt and crimes that are so frequent in this world that they cannot all be punished, but if innocence itself is brought to the bar and condemned, perhaps to die, then the citizens say whether I do good or whether I do evil is immaterial. If innocence itself is no protection, and if such an idea as that were to take hold in the mind of the citizens, then it would be the end of security whatsoever.’”
~Mark O’Mara’s closing argument to the jury in State of Florida v. George Zimmerman
Innocence? You remember George Zimmerman from the last news cycle, right? He’s the wanna-be Batman, who shot and killed Trayvon Martin on a rainy night as the teenager came back from the all-night convenience store. George was that “mellow” and “peaceful” man who just happened to pack a gun for self-defense according to his then-lawyer, Mark O’Mara. Exonerated by a hand-picked jury, one of whom now regrets the acquittal saying he “got away with murder,” Zimmerman, we were told, would just ride off into the sunset with his loving and apparently loyal to the point of perjury wife, chastened by the experience of being wrongly accused of murder. George was a victim in all of this his family said, and threats to his life were comparable to the Aurora Theatre shooting or the massacre at Sandy Hook Elementary School. He needs protection shouted his brother, Robert Zimmerman, Jr., in an email to St. Mary’s Police Chief Steve Bracknell: “Zimmerman is a Sandy Hook, Aurora waiting to happen. Your job is to protect the communities you serve and you are failing big time.”
Author’s note: This is the second in a series of related posts examining the American Jury. In the first installment (here), we looked at the antecedents created by the judicial system that foster Jury Groupthink. We said that seven systemic components lead to a higher risk of groupthink when citizens form isolated, cohesive work groups to decide issues in a litigation setting. We also explained that the more antecedents in the mix, the higher the likelihood of decisions based not on reason or evidence but more on the need to reach a unanimous decision and to defend that decision later. The events of this week serve almost as a scripted piece of this article as first one then another juror in the Zimmerman case came forward to exemplify aspects of the groupthink mentality. (More about that in Installment Three.) Antecedents by the judicial system aren’t the only promoters of group think. Societal constructs created by our society as a whole enhances the pattern, too, and serve as telltale markers of the bad decision-making, as we shall see.
You think your average juror is King Solomon? No! He’s a roofer with a mortgage. He wants to go home and sit in his Barcalounger and let the cable TV wash over him. And this man doesn’t give a single, solitary droplet of shit about truth, justice or your American way.
~John Grisham, The Runaway Jury
John Grisham’s crystallized cynicism surely doesn’t hold true for all jurors but the point to be made is that jurors are not “big picture” deciders of great issues of the day utilizing lofty principles. Instead, jurors tend to recoil from abstract notions of truth and justice and delve more deeply into human motivations and empathy. In their classic work on American juries, Professors Kalven and Zeisel of the University of Chicago, concluded that “in many instances the jury reaction goes well beyond” rational sentiments “and rests on empathy of one human being to another.” Appealing enough to our natural sentiments and intuitively correct, but in the battle of human versus human, the question becomes, “empathy for whom?” And how does empathy fit into the structure of a system that calls for cold-blooded reason and eschews warm-hearted sentiments? Not so well, it seems. In fact, jurors swear off these emotional human frailties (which form much of their everyday decision-making. Don’t think so? Ask yourself: “Why did I marry my wife? Wide pubic bone for ease in childbearing perhaps, there Mr. Spock?) and promise to be guided by the evidence alone. How can juries bridge the gap between their own intuition and the judge’s instruction?
And why shouldn’t we? After all, it was Jefferson who reminded none other than that firebrand of the Revolution, Thomas Payne, in 1789, that “trial by jury [is] the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Jefferson words surely were on the mind of Justice Byron “Whizzer” White when he wrote, “The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”
But do modern juries live up to the billing? Are they the bulwarks of democracy seeking only truth or sad victims of a process designed to produce groupthink results due to systemic flaws? Are they staunch individuals committed to their position and determined to fight to the last man to prove it, or are they susceptible to influences both in and out of the deliberation room which have little or nothing to do with evidence and logic. In essence, are they seekers of truth or merely consensus?