MORE THOUGHTS ON STAND YOUR GROUND

Since the much-ballyhooed enactment of Florida’s “Stand Your Ground” law (SYG), I have received numerous calls from newspeople who wanted me to voice my opinion on various cases where someone has gotten shot or stabbed. They seem to think that SYG somehow makes dramatic changes to the dynamics of how a case is tried before a jury. The law has, of course, been modified, but as far as how a case is tried to a jury, there should be little difference from the way it was tried before SYG. Here is a somewhat oversimplified explanation:

In the context of a jury trial, SYG simply means that the defendant doesn’t have to back up or try to run away before using deadly force in self-defense. Formerly the defendant had a duty to retreat if he could do so safely. In many armed confrontations retreat is not an option, and the law prior to SYG allowed you to stand your ground in such situations. I don’t know many people who can outrun a bullet.

The  major change that SYG made in Florida’s self-defense law deals with pretrial matters. It gives the defendant the option to try to prove to a judge before trial that he acted in self-defense. Before trial the defendant can file a motion to dismiss the case and get it dismissed if he can prove he acted in self-defense. Unless the defendant has an ironclad self-defense case, he would be foolish to file such a motion. At an SYG hearing the burden of proof is on the defendant to show that he acted self-defense. At a jury trial the burden of proof is on the state to disprove self-defense.  In order to prove that he acted in self-defense, he has to give the state a pretrial preview of his defense strategy, and if he loses, the state is prepared to meet his defense at trial. Additionally, the defendant will more than likely have to take the witness stand and be cross-examined at an SYG hearing. The defendant has to prove that he was in fear of death or great bodily harm, and the only sure way to do that is to take the stand and testify that you were in fear. If you lose the SYG hearing, the state now has the transcript of your testimony at the hearing which they can use against you at trial. 

In the final analysis, SYG is more something for reporters and pundits to emote over than anything else. In many cases where you hear the media bellowing about SYG, it is a non-issue. Take the Zimmerman case for instance. Zimmerman’s defense was that he was flat on his back with Martin sitting on top of him beating him to death. If Zimmerman’s defense was true, under pre-SYG law he had no duty to retreat. Although a lot of ink was spilled over SYG in the Zimmerman case, it was really a non-issue for that case.

Having said all that, I feel compelled to close by saying I think SYG is a bad law because it gives people a license to kill in situations where killing isn’t necessary. I worked a lot of homicides in my 32 years as a prosecutor and defense attorney, and I saw lots of killings which were legally justified. I also saw lots of legally justified killings which could have been avoided if the killer had used better judgment. A justifiable homicide is not always a necessary homicide. SYG will increase the number of justifiable homicides which are not necessary homicides.

My advice to anyone is that if you’re attacked and you can safely retreat, do so. It may damage your self-image as macho guy, but it will save a life (maybe yours). In the words of a martial arts instructor I once knew “If somebody comes after you, walk away. If he follows you, run. If he catches you, kill him.”

TALK SHOWS

Yesterday I got a call from a radio talk show in the Far West asking if I would agree to appear on a two hour segment this morning to discuss the coverage of the Zimmerman case. I was somewhat reluctant, as I am no fan of talk shows, but I agreed. At the appointed time, I received a call from the station and listened patiently to a series of commercials as I waited to go on air.

I was first asked what I thought it was about the case that made such a media splash. I said I thought it was the youth of the deceased, coupled with the even more youthful photograph that was initially shown in the media. The moderator said he disagreed with me, that it was race, pure and simple. He went on to make some remarks about how the media had manipulated public opinion by using such a youthful picture of Martin. I suggested that it might not be manipulation, but that the picture used was the only one the family had. I’ve had at least two cases where there was only one photograph of the victim available. The moderator said he wasn’t buying that at all, and it seemed to me that he was suggesting that I was being disingenuous. I responded that I had a policy of not attributing malice when some other explanation was available. I pointed out that this philosophy undergirds our criminal justice system.

He wanted to know what I thought about the verdict, and I said it looked to me as though the jury wanted to convict Zimmerman of something, but did not think that what he did constituted manslaughter or murder. I said I agreed with the jury’s verdict.

The moderator steered us back to the issue of race, and then he held forth at length saying that the coverage was about race, pure and simple, and that the age of the victim had nothing to do with it. I suggested that we perform a thought experiment. Imagine that Zimmerman had shot a 45 year old 6’6” black male convicted felon. Would there have been extensive coverage if that had been the case? He intimated that I was presenting irrelevant hypotheticals and, if I heard him correctly, opined that there would probably have been the same amount of coverage. We then cut to commercials. I got the impression that the longer I talked, the less the moderator liked me.

The underlying thesis of the show seemed to be that the left-leaning media had sensationalized the coverage and ignored the facts to advance their liberal agenda. During the commercial, I began to gather my thoughts to diplomatically express this thought. It appeared to me that he, as a right-leaning member of the media, just might be sensationalizing his coverage to advance a conservative agenda. Of course, I was willing to stipulate that he had not consciously done that because of my policy of seeking innocent motives for people’s actions. It is probably a good thing that I didn’t get a chance to voice this opinion. The first commercial had not finished before a representative came on the line, thanked me for my time, and said they wouldn’t need me anymore.

The Zimmerman case has become a political football, with rabid partisans on both sides of the political spectrum talking loudly about it. The debate is producing more heat than light. I reiterate the call I made in a previous post that everyone back off, take a deep breath, and calm down. The only thing that the Zimmerman verdict means is that the state failed to carry its burden of proof.

FINAL THOUGHTS ON THE ZIMMERMAN TRIAL

I hope this will be my last post on the Zimmerman case, but I thought it might be helpful if I gave my analysis of: (1) The monumental problems of proof confronted by the prosecution, and (2) Why the trial ended the way it did.

The only full story of what had happened came from the lips of the defendant, and he quite naturally gave an exculpatory statement. There is a line of cases in Florida which holds that if the only version of a killing comes from the defendant’s mouth, that version must be accepted unless the defendant’s statement is either impeached or contradicted by other evidence. Wright v. State, 348 So.2d 26 (1st DCA Fla., 1977).  One way of impeaching a witness’s statement is to show that the witness has made conflicting statements. The prosecution decided to put on all the available statements made by the defendant to demonstrate the conflicts among the statements. This is a reasonable tactic, but it runs a grave risk. Each of the statements is exculpatory. There were peripheral disagreements among the stories, but they all agreed on the main point—Zimmerman said he acted in self-defense. The prosecution thus repeatedly put the defendant’s defense on for him when they put on his statements. This relieved him of the obligation to testify and allowed him to escape cross-examination. I have put on homicide cases this way myself with mixed results. Sometimes it worked, and sometimes it didn’t.

There is a second way to try such cases. Put on only one statement by the defendant, make the defendant take the stand to testify, and then repeatedly impeach him with the inconsistencies from the other statements. (Some will say that he has no obligation to testify in any event, and I agree that he has no legal obligation. But if his story is not adequately put before the jury by other means, he has a practical obligation to testify). Of course you run the risk of either having the judge dismiss the case because you didn’t put on enough evidence or having the defendant decide you have put on so weak a case that he doesn’t have to testify. I have put on homicide cases using this second method with mixed results.

I had a unique opportunity in one case to try both methods. The first time I tried the case, I put every one of the defendant’s numerous statements into evidence, and in final argument I charted the conflicts among the statements. The defendant didn’t have to testify because I had repeatedly told her story for her. The jury hung. I resolved that on the retrial I would do my best to make the defendant testify. I would do this by putting on only one of her statements, and that would be the statement in which she put herself in the worst light. She would feel compelled to testify, and I would impeach her with the many inconsistencies in her other statements. She testified and I beat her over the head with her inconsistencies. The jury convicted, but it was a close run thing. The second jury was out for an inordinate amount of time and nearly hung again.

The prosecutors had either course of action open to them and had to choose the method they thought most likely to achieve a conviction. Using the first method, they were going to get the case to the jury no matter what. Using the second method, they ran the risk of having the defendant call them, refuse to testify, and losing the case because of weakness of the case. If they had gotten the defendant on the stand the inconsistencies would have been much more effective when brought out on cross-examination, and the jury just might have come to dislike Zimmerman enough to convict him. Calling Zimmerman a liar in final argument based on a chart of inconsistencies from his statements would not have been nearly as effective as calling him a liar based on his stammering and stuttering as you lambasted him with contradictions on cross-examination.

Those are the advantages and disadvantages of the two methods of presenting the case. Which way was best? I would probably have opted for the second method, although I have had cases blow up in my face when I used it. The prosecution team opted for the first. I do not criticize them for having done so. Monday morning quarterbacks may say that the prosecution chose the wrong course of action, but I will not. They had a tough decision between two problematical courses of action, and they chose the one they thought best. I think at the end of the day, they would have been unable to carry their burden of proof using either method.

MORE ON THE ZIMMERMAN VERDICT

Angela Corey has been roundly criticized for her handling of the George Zimmerman case. Those on the right side of the political spectrum feel she should never have filed the charge to begin with, and those on the left seem to think she bungled the case. In this blog I will give my analysis of her filing decision.

Before filing any charge the prosecutor must be able to answer three questions: (1) Has a crime been committed? (2) Did the defendant commit it? (3) Can I convince a jury that the defendant committed it? Unless these three questions can be answered in the affirmative, the case should not be filed. Simply knowing the defendant committed the crime is not enough, you must have a reasonable prospect of convicting the defendant at trial. Usually the thorniest of these three questions is the third. Sometimes you have a firm belief in the guilt of the defendant, but you realize that you have a marginal case which may or may not be enough to satisfy a jury. What do you do?

Here is what I think happened. It may not have happened this way, but I know how prosecutors think and this is the process I would have gone through to arrive at a decision to file charges. We begin with Corey satisfying herself that the answer to the first two questions is a resounding “Yes.” She then asks herself the third question and the answer is not “Yes,” it is “Maybe.” She believes that justice cannot be done unless the defendant is convicted and punished. This sort of case is what is known among prosecutors as “a chase which has to be tried.” I have worked through this process several times in my career and arrived at a decision to file charges. In some cases I achieved a conviction, and in others the defendant was acquitted. I well remember the last case of this nature that I lost. The judge consoled me after the trial with the comment “It was a case which had to be tried.” I would not be surprised to find out that someone knowledgeable of the system has consoled Corey with the same words.

If you think Zimmerman was not guilty of murder you may criticize her decision to file as ill-advised, but there is no ground for criticizing it as improperly motivated. Corey foresaw the firestorm of criticism which would come in the wake of an acquittal. Corey knew that a no-file decision would have minimized the flack. Facing such a situation and having an opportunity to minimize damage with a no-file, her decision to file charges was a courageous act.

REFLECTIONS ON THE ZIMMERMAN VERDICT

I turned off my cellphone this morning because I was busy doing some investigation and research on a pressing legal issue. After attending to that chore, I turned my cellphone back on and saw several messages from various news agencies wanting a comment on the Zimmerman verdict. Of course, by the time I saw the messages, the agencies had gotten their comments from other sources. It's just as well, because I have little to say about the verdict that I didn't say in my previous post while the jury was still out. I do have a comment or two, though.

Nobody should be upset that Zimmerman got acquitted. Our court system recognizes that we live in an imperfect world and we can seldom do perfect justice. Since fallible humans are prone to error, we designed our justice system to insure (as much as humanly possible) that when those errors are made, they will be to acquit the guilty rather than convict the innocent. I have seen many patently guilty people freed by juries because they believed they had a reasonable doubt. It is certainly disappointing, and I still occasionally feel anguish about some cases where juries acquitted evil men who had committed horrific crimes. But that's the nature of our criminal justice system, and any innocent person charged with a crime has reason to be glad the system is set up that way.

Because of how the system is set up, we can not say that the Zimmerman verdict was the product of prejudice--nor can we say the verdict proves Zimmerman innocent. We can say that the jury seems to have thoroughly studied the evidence, and we can say that they appear to have carefully weighed the law and the evidence. They asked for clarification of the manslaughter instruction and were told to ask a specific question. If normal procedures were followed, they had a copy of the instructions in the jury room with them and to read and try to interpret. Rather than asking a specific question, they worked on through to their verdict. This is not unusual. I have seen it happen many times.

They did their best, they came back with a verdict. We can ask no more of them and we should not attribute ill will to them. I do not care to elaborate, but I have seen verdicts returned which I sincerely believed were motivated by malice. In my experience, these malice-motivated verdicts are returned quickly. The length of deliberations, the apparent careful attention to the exhibits, and the request for clarification of the manslaughter instruction all indicate that the jury was trying to do the right thing. If you are a Zimmerman fan, you will think they did the right thing. If you're no Zimmerman fan, you have a right to think they made a mistake. There is, however, no evidence that they acted from any motivation other than the desire to try to do the right thing.

WHAT QUESTION(S) WILL THE ZIMMERMAN VERDICT ANSWER?

I write this post at 11:00 PM on Friday, July 12, and the Zimmerman jury has suspended deliberations until tomorrow. I have been asked by several media persons what I think the jury will do. My answer has uniformly been "They will acquit, convict, or hang." I gave up predicting jury verdicts long ago. One media person did talk me into saying that I thought that a conviction as charged of second degree murder was the least likely verdict, and that it was a tossup whether the jury would convict of manslaughter or acquit. Observers of the trial, no matter which side they prefer, may have grounds to be disappointed by whatever verdict the jury returns, but they should not be surprised.

I have also been asked several times  about the enduring significance of the Zimmerman case. What answers will the trial provide about race relations, gun control, concealed carry permits, and stand your ground laws? Criminal trials are not designed to provide these kinds of answers. Despite the dogma that “the very nature of a trial [is] a search for truth” [Nix v. Whiteside, 475 U.S. 157, 166, 106 S.Ct. 988, 994, 89 L.Ed.2d 123 (1986)] criminal trials don’t even do a good job of discovering the truth. 

A properly conducted criminal trial is more a test of proof than a search for truth. It is the prosecutor’s job to decide what she believes the truth to be and then go into court and try to establish that truth beyond a reasonable doubt. The defense attorney’s job is to test that proof by subjecting it to rigid scrutiny.

When the system works properly and the state proves a defendant guilty beyond a reasonable doubt, we can have a high degree of certainty that the defendant is truly guilty. Given the asymmetrical burdens of proof in a criminal trial (the defendant need not prove anything), we cannot say with any degree of certainty that someone who has been acquitted is truly innocent. In order to insure (as much as humanly possible) that the innocent go free, we tolerate a system which often allows the guilty escape punishment because of a failure of proof. The defense attorney who ethically performs her job of holding the prosecution to its burden of proof performs a noble and necessary task, even when she helps a criminal escape punishment. And since we designed the criminal justice system to work that way, we shouldn’t get excited about the possibility that a guilty person may “get away” with committing a crime.

To summarize: Can a criminal trial answer any of the great questions of the day? No. A criminal trial can answer one question and one question only—“has the state proved the defendant guilty beyond a reasonable doubt?” What the coverage of the Zimmerman/Martin case needs is for everyone to back off, take a deep breath, calm down, and not try to make the trial settle any questions other than the question whether the state has carried its burden of proof.

MEDIA FRENZY

The criminal law faculty at UF is getting swamped with requests for comment on the Trayvon Martin/George Zimmerman case. Hyperlinks to all comments by all professors can be found at

http://www.law.ufl.edu/news/2012/04/17/uf-law-faculty-go-to-sources-in-trayvon-martin-case/.

MORE MEDIA HITS ON THE ZIMMERMAN/MARTIN CASE

I continue to get inquiries concerning the Trayvon Martin, George Zimmerman case. Here are the latest ones to make the web:

http://www.usatoday.com/news/nation/story/2012-04-12/george-zimmerman-charges-trayvon-martin-shooting/54191768/1

http://www.greenbaypressgazette.com/article/20120412/GPG0101/304120035/Zimmerman-charged-Trayvon-Martin-death

http://www.usatoday.com/news/nation/story/2012-04-11/corey-florida-prosecutor-trayvon-martin/54189310/1

NOTE: This is a repost. The previously posted hyperlinks malfunctioned.

A PROSECUTOR'S DUTY

My phone rang off the hook this afternoon with calls from various media representatives seeking my comments on the recent developments in the Trayvon Martin case. Although trial lawyers are seldom at a loss for words, one question that I was asked left me almost speechless. How did I feel about the indictment? Although I am not a Vulcan, I try to banish my feelings when approaching a murder case. Prosecutors  learn to suppress their feelings when evaluating a case. Emotion clouds judgment, and judgment should be crystal clear when making decisions in matters of life and death.

I can, however, express my feelings about how State Attorney Angela Corey has performed her duties so far. Governor Scott threw her a political hot potato when he assigned her to this case, and she has managed it with grace and dignity. Listening to her at the press conference this afternoon, it was clear that she has scrupulously adhered to the ethical and professional requirements of the office of prosecutor. Having known her as a colleague for over a quarter of a century, I expected no less from her.

I did not see the entire conference, but from what I saw she handled the sniping, confrontational questions of some of the media representatives extremely well. She said what had to be said and refused to divulge information which was better left unsaid, and she maintained her composure in the face of questions that seemed to be designed to ignite controversy.

One question which particularly irritated me was the oft-repeated "Why did the investigation take so long?" The short answer is, it didn't. Not arresting Zimmerman on the night of the shooting was probably the best thing that happened for the building of a case against him. Had he been arrested that evening, the prosecution would have been scrambling to hastily put together the case ahead of certain very short procedural deadlines set out in the Florida Rules of Criminal Procedure. With Zimmerman unarrested, the only deadline which the prosecution had to work against was the statute of limitations--and there is no statute of limitations for second degree murder. The prosecution had an opportunity to move slowly and deliberately and put together the best possible case before making an arrest.

In my 29 years and 10 months as a prosecutor, I never had a homicide case suffer because the defendant wasn't immediately arrested, but I had several crash and burn because the defendant was arrested too soon.

Angela Corey has done an excellent job so far, and I expect that she will continue to do an excellent job.

ON MAKING YOURSELF CLEAR

Often when someone says "I was misquoted," they really mean "I wish I hadn't said that." Getting misquoted can be painful, but getting quoted correctly when you said something that sounds dumb can be even more painful. A couple of days ago I got quoted correctly, but I'm afraid I sounded less than intelligent. I was being asked about the sounds of someone calling for help on the Zimmerman/Martin 911 tape, and the reporter quoted me as saying "It would be nice to know who was doing the calling for help, but identifying the caller is not necessarily going to definitively identify the wrongdoer, [but s]ituations sometimes arise where it is the wrongdoer calling for help." I started to elaborate on my comment, but decided I didn't need to further confuse the issue with additional comments.

The point I was trying to make was this: Sometimes the wrongdoer gets himself/herself into a pickle that he/she didn't anticipate and consequently starts calling for help. The incident I had in mind when I made the comment was the arrest of Ted Bundy in Pensacola. When David Lee attempted to handcuff Bundy, Bundy resisted violently and wound up getting pummelled. Bundy's cries for help did not exonerate him, and to decide the propriety of his arrest based on who was calling for help would have badly skewed the truth seeking process. Another example of this sort of thing comes from  Genesis 39:6-20. When Potiphar's wife attempted to seduce Joseph, he ran away and she cried for help claiming that Joseph had tried to rape her.

You can read my comments in context here: (http://www.usnews.com/news/us/articles/2012/04/02/media-take-on-police-like-role-in-martin-case).

MORE ON "STAND YOUR GROUND"

I'm getting a lot of inquiries from the media concerning the Trayvon Martin, George Zimmerman case and particularly on Florida's "Stand Your Ground Law." Here's one of the latest:
http://colorlines.com/archives/2012/03/kill_at_will_laws.html

THE COURT ROOM OR THE NEWS ROOM?

Departing from my usual habit of studiously ignoring 24 hour news channels, I watched one today. I saw an anchor ask Angela Corey if she knew where George Zimmerman was, and then act as though Corey had committed malfeasance in office when she said she did not. It's not the chief prosecutor's job to keep track of potential defendants, and it's no reflection on Corey because she didn't know. I prosecuted for almost 30 years and the only time I knew the location of one of my defendants was when he was in jail. As long as he came to court when summoned, I had no desire to know where he was.

Then I saw a "former prosecutor" ranting about how horrible it was that Zimmerman had not been arrested. If she would think back to her days as a prosecutor, I am sure she could come up with a number of good explanations for why the arrest hasn't been made yet. Unless a defendant was a severe flight risk, I was seldom in a hurry to make an arrest.

The police department, which felt it had good and sufficient reasons to delay the arrest, has felt the heat of the media frenzy and begun leaking details which tend to explain why they weren't eager to make an arrest before they got their case more thoroughly investigated. If I were the prosecutor on the case, I would be upset that this information has been disseminated, but I fully understand that the police felt they were acting in self defense.

Interestingly, one newscast I saw cherry picked a single fact from the leaked information to televise and ignored all the other leaked information. Instead of running the relevant facts, they decided to air the completely irrelevant fact that Trayvon Martin had gotten into trouble over some marijuana residue in his backpack.

One would suspect that the media is working to aggravate a situation which is volatile enough already. This case needs to be tried in the court room, not the news room. We all need to just take a deep breath, calm down, and wait to see how the case unfolds. There will be plenty of time to critique the police and prosecutors after the case is over.

STAND YOUR GROUND: GET AWAY WITH MURDER

Let's perform a thought experiment. Let's say that I am a world class sprinter (I'm not) walking down the sidewalk. I see a 5'2" 350 pounder with a limp and a smoker's cough hobbling toward me. He obviously cannot run fast or far, but he has a club in his hand and, between wheezing gasps for breath, he is shouting threats to brain me with the club. He's 30 yards away when I first see him. I can obviously save my life and spare his by turning around and running away. What should I do? Florida Statute 776.012 says that I am perfectly within my rights to "stand my ground" and shoot him dead without taking a backward step. And Florida Statute 776.032(2) warns investigating law officers not to arrest me.

There has been a huge outcry against law enforcement for not making an arrest in the recent Trayvon Williams shooting. There have even been suggestions that the failure to arrest was the product of racism. Although the shooting may have been the product of racism, the failure to arrest was a logical consequence of applying the law of Florida as it now exists. When there are no witnesses to a killing and the killer gives an unimpeached statement that crime was in self defense, then you are bound by law to treat that statement as true. The police had an unwitnessed killing and a statement by the killer that the killing was in self defense. They have to accept that statement until they can amass enough evidence to prove it is untrue. With no proof that the statement is untrue, they will violate Florida Statute 776.032(2) by arresting the killer. Before "Stand Your Ground" was enacted, they could have carried him to jail because he didn't try to avoid the killing by retreating. I'm sure that law enforcement is hard at work trying to find evidence to impeach the claim of self defense, but until they do they cannot arrest.

What can be done to fix this? Nothing in the case of Trayvon Martin, but for the protection of future potential victims like him, Florida should restore the duty to retreat outside one's home prior to using deadly force in self defense. We should not value macho conceit over human life. If it's a choice between feeling like a wimp because I ran away and killing someone needlessly, go ahead and call me a wimp. And Florida Statute 776.032 should be repealed in its entirety. Section 776.032's warning against arresting killers isn't the only thing wrong with the statute.

And one other thing. Some people are blaming Martin's death on the fact that he was wearing a hoodie. That's like blaming a rape victim for the way she dressed.