Against my better judgment, I weigh in on the Trayvon Martin case, one
of the most divisive trials in decades. I enter the fray with a perspective
that most people do not have. I am a former prosecutor and present criminal
defense attorney. I have reviewed, passed judgment on, and tried numerous
cases similar to the Trayvon Martin/George Zimmerman case, and I am here
to tell you that they are exceedingly difficult cases from beginning to
end and they are never resolved without one party or another feeling as
though the system let them down.
Up front, I will tell you that the case was a tragedy. A seventeen-year-old boy/man confronted by an older, overzealous vigilante
ends up dead. Trayvon Martin should not have died. If George Zimmerman
had listened to the 911 dispatcher he called to report a suspicious person,
stayed in his car and let the police do their job, Trayvon Martin would
be alive today. From my personal perspective, George Zimmerman bears,
at least, moral culpability for the death of Trayvon Martin. Legal responsibility
is another issue entirely.
Ultimately, what happened in the case that lead to the shooting can never
be known for certain. And that is a common factor in these kinds of cases.
Most often, the only witnesses to the offense are the victim and the defendant.
By all accounts, the case was thoroughly investigated and experienced
investigators, police officers, and prosecutors arrived at different conclusions
about whether George Zimmerman should have been arrested and charged at
all. In fact, Zimmerman was questioned for hours on the night of the shooting
and was released.
It wasn’t until after a national hue and cry that a special prosecutor
was appointed by the Governor of Florida and charges were filed. At that
point, prosecuting George Zimmerman became more about racial issues, political
correctness, and emotion than justice and the rule of law.
How you view the verdict in the case depends much on your frame of reference.
If you are inclined to believe that our system is corrupt and racist,
the verdict was a travesty. If you are conservative and a gun advocate,
you believe the verdict was justice. Had the verdict been otherwise, these
positions would reverse.
I followed the trial of George Zimmerman pretty closely and almost certainly
understand the mechanisms of the trial and the legal issues better than
most by virtue of my legal training and prosecutorial and defense experience,
but I was not in the courtroom and did not hear all of the evidence presented.
When people judge the outcome of a trial, the most common mistake they
make is basing their elation or outrage about the trial or verdict on
what they think they know about a case, usually from media reports. But,
and this is important, you can truly only judge whether a jury was right
or wrong if you sat through the entire trial as they did, if you were
instructed on the law by the judge as they were, and you spent weeks considering
the evidence that was presented in the courtroom and nothing else.
And that is what most people fail to understand. A jury will be told again
and again over the course of a trial, from jury selection to verdict,
that they are to base their verdict only on evidence they hear in the
trial and nothing else, especially media reports, public outcry, and emotion.
In Texas, jurors are sworn to “a true verdict render according to
the law and the evidence.” Florida’s oath to jurors is almost
exactly the same. Simply put, jurors must base their verdicts solely on
what they hear in the courtroom and
only on what they hear in the courtroom. Thus, the only things that should
matter in the trial of a criminal case is what occurs in the courtroom
and the law given to the jurors by the judge before they begin their deliberations.
Sometimes, this seems very counter-intuitive. We have all heard of judges
disallowing certain evidence in a case. When this happens, trial observers
know about it, but the jurors never hear it and cannot and should not
consider it in reaching their verdict. Such evidence can make a difference
in how we perceive a case, but our perception will necessarily be different
that the jurors’ perception because they hear only what the judge,
based on our evidence rules, allow them to hear. So it is simply not fair
to criticize a jury for a verdict unless you know what quantum of evidence
they were allowed to consider in reaching their verdict and what instructions
they were given by the judge about the law that applies to the case. Because,
in determining whether someone is guilty beyond a reasonable doubt in
an American court of law,
that is all that matters.
By definition, if a case is tried according to our laws and our evidence
rules, absent outright corruption, justice is served no matter what the
verdict. That’s just the way our system works.
In the Zimmerman case, it cannot be said that justice was not served. We
may not agree with the verdict – in fact, some hate it and see it
as emblematic of a failed system– but a verdict that is a result
of a fair trial is justice. We have to be careful not to confuse our moral
sense of justice with our legal sense of justice. In most cases, there
is no gap between the two. People usually get what they deserve in our
system, but I know better than most that our system is not perfect. Innocent
people get convicted; guilty people go free. Our system is not perfect
because it is populated by human beings and human beings are not perfect.
But, I know of no better alternative.
So, was the Zimmerman trial fair? I think the answer is an unequivocal “yes.” Despite the fact
that there was much conflict and disagreement initially about whether
charges should have been filed against Zimmerman at all by those in a
position to make that judgment, charges
were filed. A special prosecutor was appointed when the Governor apparently
perceived that the public would not be satisfied unless something was
done. The State of Florida ultimately dedicated enormous resources to
the case and filed serious charges against Zimmerman. (I do think it is
telling that the special prosecutor opted to circumvent grand jury review
of the case. That could not have happened in Texas where our Constitution
requires grand jury review and indictment for a felony case to go forward.)
A capable and experienced team of prosecutors and investigators tried
the case for the State and, obviously, very competent attorneys and investigators
represented Zimmerman. A no-nonsense judge presided over the trial and,
by all accounts, did a fine job in ruling on the various complicated issues
of law and evidence. The jury was carefully questioned by both sides in
the jury selection process and spent weeks hearing evidence and considering
how the law applied to the facts. It appears clear that everybody did
their job and did it well. If anything, the Zimmerman trial exemplified
how the system
should work. It was a fair trial, therefore the considered verdict of the jury
Sometimes verdicts disappoint us. Sometimes they outrage us. Sometimes
they shock us. That has always happened and it always will. Ours is an
adversarial system in which, we believe, the best approximation of the
truth is reached in the battleground of the courtroom following the rules of law.
From my perspective, the verdict was the right one, given what I know about
the state of the evidence presented. I am not alone in this opinion among
the legal community and it doesn’t mean that I am racially insensitive
or do not care that a young man lost his life. The State of Florida simply
did not present enough evidence of sufficient quality to convince the
jury beyond a reasonable doubt that Zimmerman should be convicted as charged.
That is a function, again, of the fact that these kind of cases (that
is, self-defense cases) are never perfect and never will be. In fact,
cases like the Zimmerman case are among the hardest for prosecutors to
prove. It is often difficult to convince a jury beyond a reasonable doubt
of the facts necessary to justify a conviction.
About five years ago, when I served as First Assistant District Attorney
in Brazos County, our office had to deal with a very similar fact situation.
A Rice University basketball player visiting College Station was stabbed
to death by a former Marine veteran during an encounter at Northgate,
an area near Texas A&M University where most of the bars frequented
by students are located. After an exhaustive investigation of the case,
there was disagreement among prosecutors and investigators about whether
the case should be indicted and tried or no-billed by the grand jury.
The issue was self-defense. For me, after spending hours and hours with
my fellow prosecutors and the police who investigated the stabbing and
considering all of the evidence and the statements of witnesses, the case
came down to what happened or did not happen in the 10-15 seconds immediately
preceding the stabbing. I took my oath as a prosecutor very seriously.
A prosecutor’s sworn duty is to seek justice, not convictions. After
carefully considering what evidence we could
bring to the courtroom, I concluded that I personally could not get beyond a reasonable doubt
about what actually happened in that 10-15 seconds and so could not, in
good conscience, participate in the prosecution of that case. My boss,
the District Attorney, felt it was necessary to go forward and the case
was indicted as murder and prosecuted by other prosecutors in the office.
Sometimes reasonable minds differ about whether a case should go forward.
That is what happened in the Zimmerman case, but the decision was made
to go forward. In the case I just related, the jury did what the jury
did in the Zimmerman trial, they found that they could not get beyond
reasonable doubt and acquitted the former Marine. Justice was served,
not because the verdict was not guilty, but because a jury of 12 heard
the evidence presented by able attorneys on both sides and determined
that they could not convict beyond a reasonable doubt.
I lament that many people are taking away from the Zimmerman trial that
the system is a failure, corrupt, or racist. I don’t believe that
it is any of those things systemically, but will be the first to admit
that it can be all of those things if we relax our vigilance and all involved
in the investigation and prosecution of criminal cases fail to live up
to the obligations our system demands of them.
When I prosecuted, I mentored and supervised scores of young prosecutors.
I always told them that they should evaluate a case in the context of
what could actually be proven in court. Some cases need to be tried if
they can be tried consistent with the oath to do justice. But it is just
important to make the hard decisions about whether and under what circumstances
a case should be prosecuted. Sometimes we are going to be terribly disappointed,
but if we have done everything we can ethically to prosecute and we fall
short, as the prosecution pretty clearly did in the Zimmerman case, then
we accept the judgment of the jury, we learn from it, and we move on to
try to do justice in the next case.
When prosecutors go forward with cases because of public pressure, political
concerns, or other considerations not related to the righteousness of
the prosecution itself, that’s when the system really fails.
As a criminal defense attorney, my job is to make sure that the rules by
which we charge citizens with crimes and try them before juries are followed
and that the government is held to the standards our laws impose, including
the burden of proving its case beyond a reasonable doubt before depriving
a citizen of life or liberty. It is the duty of the criminal defense attorney
to keep the government honest and to prevent government overreaching.
The defense attorneys in the Zimmerman did an admirable job in doing just
that and the result was, like it or not, justice.
The system worked and justice