Sunday, July 14, 2013

The Zimmerman Verdict

Unless you went to bed at sundown last night, I'm sure that by now you have heard or read that George Zimmerman was found not guilty in the Trayvon Martin murder case.

If you are on Facebook, I'm sure that your computer screen is completely full of your friends expressing outrage over the verdict and declaring it to be racist.   To read these types of statements coming from the general public is completely understandable.

To read them coming from criminal defense attorneys is completely inexcusable.

The fundamental principle in criminal law is that before a person accused can be convicted of a crime, it must be proven, by the evidence, to a jury beyond a reasonable doubt -- public perception of said crime and any other factor outside of that evidence be damned.  Criminal defense attorneys celebrate that principle and hold out Atticus Finch as our role model of the lawyer who stood and fought for an unpopular cause he believed in.

The public will rant and rave against the verdict as they are wont to do, but any defense attorney who has ever tried a case involving a self-defense statute should understand.

We all know from high school civics or government class that before any jury can return a verdict of guilty, the case must be proven to them beyond a reasonable doubt.  To many, the phrase "Beyond a reasonable doubt" is just a string of words told to a jury that mandate them to simply go figure out whether or not they think a person did what they are accused of.  For those of us who practice criminal law, we know that those words set forth what is supposed to be a theoretically-near-insurmountable challenge to the Government to prove a case.

A person can't be convicted because a jury thinks the accused is "maybe" guilty, "probably" guilty, or even if they are "clearly convinced" of their guilt.  The level of proof has to be so amazingly strong that the individual juror should be left with not a single reasonable doubt over whether or not the accused is guilty.

If you stop and think about it for a second, that's a huge burden for a prosecutor.  At least, it is supposed to be.

In the George Zimmerman-Trayvon Martin case, there was no dispute that Zimmerman had fired the fatal bullet that ended Martin's life.  The question was whether or not he was acting in self-defense.

What many non-criminal lawyers don't know about criminal law and self-defense is that a person accused of an assaultive offense (from simple assault to murder) does not have to prove self-defense.

Process that for a minute before we go on.

A person accused of murder who claims self-defense does not have to prove that he acted in self-defense.

Rather, a person accused only needs to raise the issue that self-defense may be involved and then it becomes the prosecution's job to show that self-defense does not apply and to do so beyond a reasonable doubt.  And if you think proving that a murder happened beyond a reasonable doubt is a difficult job for a prosecutor, it is simple compared to disproving self-defense.

As a prosecutor, I lost a case where a man claimed self-defense after running over and killing two alleged gang members in a parking lot.  I tried the case against Eric Davis, who is an outstanding criminal defense attorney (NOTE:  I didn't realize quite how outstanding until after he beat me in this case).  I thought that Eric's claims that his client acted in self-defense were ridiculous.  How could the driver of a truck claim he was acting in self-defense when he runs over and kills two unarmed men?

But at the end of the day, Eric raised the issue of self-defense and it was one that I could not successfully disprove beyond a reasonable doubt.  His client was found not guilty.

In Eric's case, he didn't have a lot to work with (in my opinion) but he made it work anyway.  I think that any defense attorney would have probably been much more comfortable to work with the self-defense factors that Zimmerman was able to claim.  The fact that Zimmerman had injuries on his face and head are a tremendous piece of evidence of self-defense that a prosecutor has to overcome.

If one could remove the racial overtones of this case from it and assume for a moment that Trayvon Martin had been a white 17-year-old kid, I don't think any defense attorney I know would have shied away from trying it.  I also can't imagine a prosecutor who would have wanted to try it.

But this trial was infused with racial tension from the start by the media.  Was there racial hatred in George Zimmerman's heart when he walked out his door to confront Trayvon Martin?  I have no idea.  Maybe.  Maybe not.  Did he walk out that door just to gun down a 17-year-old, unarmed kid without provocation?  I have no idea.  Maybe.  Maybe not.  I kind of doubt it.

My personal belief is that George Zimmerman initiated a situation that rapidly got out of hand in a manner he had foolishly not anticipated.  Is he morally responsible for what happened?  That's a completely different question.

Under the Criminal Justice System, however, people aren't tried for their moral responsibility.  They are tried for what can legally be proven against them.  If at the end of testimony, the jury cannot figure out whether or not the self-defense claim was legitimate, then the legally correct verdict is "not guilty."

Unless the prosecution disproves it beyond a reasonable doubt, that is what they are bound to do.

Moral outrage is to be expected, but if anyone understands why the verdict happened, it should be lawyers.

Otherwise, we are just feeding into the same mob mentality that we are supposed to be fighting against every day.

NOTE:  For additional reading, check out Brian Tannebaum's outstanding blog post this morning on The Embarrassment of the George Zimmerman Verdict.


Anonymous said...

As I watched the trial unfold on various news outlets, I was surprised to see how many defense attorneys side with the State as oppose to the defendant. And that Lisa Bloom is a pour idiot and needs a reality check.

Lisa Shapiro Strauss said...

Well said!

Jason Goss said...

I think that the most interesting issue is one of "provoking the difficulty." Is there a provoking the difficulty instruction given in Florida? The idea that Zimmerman had injuries could be completely consistent with Trayvon Martin exercising his legal right to defend himself. So if you took all of the personal identifiers out and just said, "Guy A follows Kid B around Kid B's neighborhood and freaks Kid B out until Guy A actually gets out of the car... Can Kid B punch him? Tackle him? If Kid B punches him, does Guy A have the right to shoot him? In Texas, provoking the difficulty would be a real issue, but maybe Florida doesn't have it. Surely they do, thogh, or you could start every murder with a bar fight...
I don't envy the prosecutors having to try that case, but I probably wouldn't have played his statement, that's for sure. If he wanted his story out, he's taking the stand.

Thomas Hobbes said...

If Jason evaluates all of the facts, "provoking the difficulty" doesn't so easily settle the matter in the way he suggests. The available evidence indicates that Zimmerman lost sight of Martin and was returning to his truck, reportedly to wait for the officer Zimmerman asked the dispatcher to send. To the extent that Zimmerman could be characterized as an aggressor, he was no longer. Also based on the available evidence, Martin was last seen headed in the direction of his residence and, out of Zimmerman's sight, could have continued to his residence unmolested.

So that leaves the question of why, with the opportunity to continue to his destination, Martin chose to remain in or return to the area where the fatal encounter would take place. We can do little more than guess, but Martin's choice does suggest that Martin may have "provoked the difficulty," to use Jason's words. Without Martin's unfortunate choice to confront, there likely would have been no fatal encounter.

Anonymous said...

Well said.

Eric J. Davis said...

You are an outstanding lawyer as well. And by the way, I think an all male jury would have acquitted Mr. Byrd.

Anonymous said...

For someone who did not watch any part of this trial, but of course read about it, I think this really helped me understand the law. Great job!

Anonymous said...

What are your thoughts on the civil rights leaders calling for the Justice Dept to launch a civil investigation due to a violation of Martin's civil rights? If they do investigate, shouldn't they then do that (investigate) on EVERY single case in America where different races are involoved in a criminal matter and there is believed to be a violation of someone's civil rights?

Mark W. Stephens said...

Interesting that no one has commented on the possibility of prosecutorial misconduct in the Zimmerman trial. Any thoughts?

Anonymous said...

There have been photos on the internet that show a different image of Martin than the one shown hooded and without hood. Has the media been fair in only showing these two photos? I want to know, or even see how tall and how heavy Martin was when he was shot. Did Zimmerman have reason to even fear Marin because of his size? I agree the verdict is correct.

Anonymous said...

Prosecutorial misconduct - Alan Dershowitz has suggested that the State's Attorney, Angela Corley, in the Zimmerman prosecution should be disbarred - Mark Steyn has described Corley as a "wack job." After watching her pathetic performance on television following the return of the Zimmerman verdict I think that both Dershowitz and Steyn were arguably being too kind in the assessment of this woman. I feel very sorry for those individuals in the employ of what is apparently a political hack. Unfortunately, I remember years ago when the Harris County District Attorney's Office hired a highly recommended member from another Florida State Prosecutor Office - that individual could have been described similarly by Dershowitz and Steyn. Based upon what I have read it appears that the prosecutors in the 4th Judicial District of Florida have never heard of Brady v. Maryland. I am ashamed that one might contend that these folks are in the prosecutor fraternity (or sorority). By the way I agree with the verdict. This prosecution was initiated by "mob rule" and a corrupt media
Calvin A. Hartmann

Mark W. Stephens said...

Well stated as usual Mr. Hartmann.

Trey said...

Just a clarification from someone who would know:

If this were to happen in Texas, wouldn't Zimmerman be in a much tougher situation? Didn't he pursue someone while armed? As far as my understanding of the law goes, that constitutes "looking for trouble" and would place the responsibility on Zimmerman for provoking a confrontation.

Anonymous said...

Assuming the clarification is sought in good faith and not as argument -Like most jurisdictions, Texas' law on self defense and deadly force in defense of a person was (I presume still) is not only complicated but confusing as well. The use of deadly force is a mixture of an objective and subjective standard. A predicate for the use of deadly force is that the individual first satisfy the requirements for the use of non deadly force including limitations imposed by provoking the difficulty, duty to retreat, and whether that person was legally armed, etc.
The question distills to whether approaching or "pursuing" somebody = provoking the difficulty = "looking for trouble." Although I suspect that in some neighborhoods in Harris County and particularly the City of Houston such activity may be characterized as "looking for trouble" Zimmerman was doing nothing unlawful by following Martin. Zimmerman was a licensed handgun holder. Provoking the difficulty requires that 1) a person does some act or uses word to provoke the attack on himself, 2) the words or act were reasonably intended to provoke the attack by the other, and 3) the acts or words were done with the intent that the person would have the excuse for inflicting harm on the other. The bottom line is that the use of the force, unless limited, must be based upon a reasonable belief I assume, based upon the evidence, that Zimmerman had no intent to provoke a difficulty in order to get pummeled so that he could shoot Martin.

Farand Scott said...

I agree w/verdict based upon the defense raised against the crime charged. Several crimes were committed. The 1st disobeying law enforcement when told nt to pursue, and to remain until law enforcement arrives. Secondly in discharging the duties of the neighborhood watch he is prohibited from carrying a weapon. Next Zimmerman did shoot and kill Trayvon. Deadly force is partly defined as using a similarly amount of force not elevated (reminds me of the addage bringing a knife to a gunfight). The idea of prosectorial misconduct shd B raised. the comment that this was not abt race, it was abt profiling. Really? Based upon what? I disagree that the media was the only ones to harp on race. It's the reason the caucasian police chief got fired and replaced by an African-American one replaced him. Also Y a white lead-prosecutor did most of presenting while Af-Am ones addressed the press and took the some heat. For once can 'we' stop playing like racism/predjudice doesn't exist and stop trying to talk about race-relations w/o 'talking' about it?

Charles Manning said...

Anonymous says, "Provoking the difficulty requires that 1) a person does some act or uses word to provoke the attack on himself, 2) the words or act were reasonably intended to provoke the attack by the other, and 3) the acts or words were done with the intent that the person would have the excuse for inflicting harm on the other."

Is this based on case law? If so, to use provoking the difficulty to negate self defense is a heavy burden indeed. The question remains, does Florida have such a law and did the State attempt to introduce evidence and charge the jury accordingly? I've been unable to find any discussion of these questions on the Internet.

My personal opinion is that Zimmerman started a fight knowing that he would have to shoot Martin if Martin resisted, using possibly deadly force, being arrested or stopped for investigation. There should be a law requiring that civilians like Zimmerman, in such circumstances, not attempt to restrain or arrest someone.

Anonymous said...

Farand Scott is prima fascia evidence that some people are not worth the trouble to educate. No fact you tell this person will ever be accepted.

Anonymous said...

So is this the explanation why when a cop kills an unarmed individual, by simply claiming "I feared for my life" he gets a free walk from the DA?