Sunday, July 14, 2013


The late Trayvon Martin, who never reached his 18th birthday

Late Saturday night (July 13, 2013), a Florida jury in Seminole County acquitted George Zimmerman of all charges. Like most rational and sane Americans, I was hoping that George Zimmerman would be convicted of something for shooting Trayvon Martin, an unarmed teenager, to death on February 26, 2012. I thought that first degree murder (malice murder or felony murder in Georgia, depending on the circumstances; Florida's system is a bit different) might be a stretch, but manslaughter or at the very least, negligent homicide, appeared to be no brainers. However, I can't put aside the fact that the law does not mandate that juries convict people whom they think are guilty, although in real life, everyone with a law degree connected with the criminal justice system- prosecutors, defense lawyers, and judges- knows that is exactly what they do the majority of the time. The law requires juries to acquit unless the State proves every element of the crime beyond a reasonable doubt-- specifically, the Sixth Amendment and Due Process Clause of the Fourteenth Amendment to the United States Constitution, as interpreted by the United States Supreme Court:

"The Sixth Amendment provides that those "accused" of a "crime" have the right to a trial "by an impartial jury." This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. United States v. Gaudin, 515 U. S. 506, 510 (1995); In re Winship, 397 U. S. 358, 364 (1970)."

And, occasionally, as in the Florida prosecution of Trayvon Martin's killer, juries will follow the law and acquit a killer where the State has not met its burden, even though they know in their hearts emotionally and in their heads through common sense that the accused most likely committed the offense. (By the way, calling Zimmerman a "killer" is literally true; the epithet "murderer" is still a matter of debate, although he will never be "convicted murderer" with regard to Trayvon Martin.)

It is unusual to have an O. J. type case, where the evidence is overwhelming but a defendant is acquitted. It is more often the case that in any criminal prosecution which is not high profile, the prosecutor's performance is plodding and perfunctory and the defense is pro forma, lacking creativity or passion. And justice-- meaning convicting the guilty and acquitting the innocent- - is done most of the time. Sadly, my anecdotal experiences are that convicting the innocent probably occurs as much if not more often that acquitting the clearly guilty. It is, thankfully, rare that a prosecutor will violate the explicit rules of ethical behavior and attempt to convict a person whom he or she knows- if the prosecutor is intelligent and reasonable- is most likely not guilty of the crime charged. On the other hand, although prosecutors have an ethical obligation not to prosecute without evidence sufficient to constitute probable cause that the accused committed the crime charged, a defense lawyer's ethical duty is the near opposite: he or she must vigorously defend clients whom they know without a shadow of a doubt committed the offense.

In this case, I didn't watch the Zimmerman trial. The only portion I saw was a clip shown on Jon Stewart's The Daily Show of the lame "knock knock" joke from the defense lawyer during his opening statement to the jury. It's usually hard to extrapolate the relative quality of defense counsel from a two minute clip, but if that was the level of competence that Zimmerman's lawyer brought to the courtroom, then the acquittal had little to do with any brilliance of Zimmernan's defense and more to do with the simple fact that there were conflicting interpretations of the evidence of a crime for which there were no eyewitnesses other than the accused. The verdict is also a testament to the jury's willingness to follow the law as charged by the court with regard to what burden of proof the State had to reach before they were authorized to convict.

Oddly enough, Georgia has a stand your ground (no duty to retreat) law that, had this case been brought here, could actually have resulted in total immunity from prosecution for George Zimmerman, a fact recently brought to my attention during casual conversation with a public defender at a recent going away dinner for one of their lawyers.

16-3-23.1. A person who uses threats or force in accordance with
Code. . . .

A person who uses threats or force in accordance with Code
Section 16-3-21, relating to the use of force in defense of self
or others, Code Section 16-3-23, relating to the use of force in
defense of a habitation, or Code Section 16-3-24, relating to the
use of force in defense of property other than a habitation, has
no duty to retreat and has the right to stand his or her ground
and use force as provided in said Code sections, including deadly

(Code 1981, § 16-3-23.1, enacted by Ga. L. 2006, p. 477, § 1/SB

16-3-24.2. A person who uses threats or force in accordance with
Code. . . .

A person who uses threats or force in accordance with Code
Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune
from criminal prosecution therefor unless in the use of deadly
force, such person utilizes a weapon the carrying or possession of
which is unlawful by such person under Part 2 or 3 of Article 4 of
Chapter 11 of this title.

(Code 1981, § 16-3-24.2, enacted by Ga. L. 1998, p. 1153, § 1.2;
Ga. L. 1999, p. 81, § 16; Ga. L. 2006, p. 477, § 2/SB 396.)

from CNN:

"But who really was Trayvon Martin? There is plenty of speculation, including some bloggers who point to his recent school suspensions -- including for drug residue in his backpack -- and images of him sporting tattoos and a what appeared to be a gold tooth grill as possible evidence of a troubled teen.

That portrayal is in stark contrast to the accounts from his family, friends, and teachers who described Martin as an average 17-year-old.

"He was a shy kid," said family friend and former football coach Jerome Horton. "He didn't want to be the center of attention; that's just not him.

"He always walked with his hoodie and his headphones," recalled Horton. "If he wasn't on the phone, he was listening to music -- anyone that knows him knows that."

Just like most any other teenager, Martin enjoyed listening to music -- R&B was his favorite -- going to the movies and the roller rink with his friends, friends and family said. When Martin entered high school, his childhood goals of a career on the football field were replaced with his dreams of working with airplanes."