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.