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IN MY OPINION . . .

Making sense of the Zimmerman verdict

If you aren't too sick of reading or hearing about the Zimmerman trial and verdict, here is my take, from the perspective of a trial prosecutor with more than 40 jury trials.

Whether you agree with the jury's verdict or not, we must accept the verdict for what it was—an entirely reasonable and logical outcome, based on Florida law. After five weeks of inconclusive testimony from prosecution witnesses who seemed ill-prepared and, more often than not, supportive of the defense's theory of the case rather than the prosecution's, we cannot fault the six women who sat through it all and who deliberated for 16 hours before reaching a decision. They did not act hastily or without due consideration of all they saw and heard. They did their duty, as jurors and citizens, so let's stop, in the media and in our minds, chastising them.

At best, this was a manslaughter case to begin with, and it should have been investigated and charged as such. Second degree murder was a political charge, not one based on facts likely to produce a verdict of guilt beyond a reasonable doubt. Indeed, for me, the second degree murder charge was the most odious and dangerous aspect of this case, because it threatens our entire system of criminal justice, a system grounded in the rule of law, not emotional considerations or political pressure.

Prosecutors frequently overcharge; that is, they beef up charges in an indictment to put pressure on defendants to plea bargain, to cop a guilty plea to a lesser offense, thereby saving the State and taxpayers the expense of a time-consuming trial. (Grand juries bring indictments, not prosecutors; but prosecutors exert extreme control over that process, so the old saw that a prosecutor could indict a "ham sandwich" if he or she wanted to is almost true.)

Here, in the Zimmerman case, the prosecution overcharged, not to facilitate a plea bargain—there wasn't going to be one—but to accede to the pressure being put upon them. For more than 40 days, no charges were filed. Only after Florida governor Rick Scott brought the state attorney general into the picture, in response to the public outcry, did this prosecution get legs.

And it was a wobbly set of legs, given Florida's "stand your ground" law.

"Stand your ground," in Florida and many other states that permit their citizens to carry concealed handguns, means that there is no duty imposed on the gun-carrying individual to retreat from a confrontation to avoid the use of lethal force. Zimmerman clearly did not act reasonably when he was told by the police dispatcher not to follow Trayvon Martin, but to wait for police to arrive on the scene. By getting out of his car and following the teenager, Zimmerman placed both himself and the boy at risk. Drawing courage from the gun he carried, the self-appointed neighborhood watcher escalated things, leading to a confrontation that he could not control with his fists or physical strength. As he began suffering a whipping by the young man, who had a right to be outraged at this challenge, Zimmerman called for help and, finally, resorted to the lethal force at his disposal—he shot the kid.

There was no explicit mention of the Florida "stand your ground" law during the trial. The defense did not raise that issue in pretrial motions, but it was a silent undercurrent in the proceedings. But here's where it became important.

Before any jury begins deliberations, in Florida and everywhere, the judge reads instructions to the jurors about the law they must apply to the facts in the case. Here, Zimmerman's right to act in self-defense was the lynchpin of the defense's case, and the approved instruction to the jury on that issue changed after Florida adopted its "stand your ground" law. And that is the key as to why this case had to result in an acquittal, if the jury followed the law.

Before stand-your-ground, the jury instruction on self-defense contained a duty on the part of the person asserting that defense to, in effect, retreat if, by doing so, the violence could reasonably have been avoided. After stand-your-ground, that duty to retreat was no longer operable, and the person claiming self-defense did not have to back off one inch from any confrontation. He could shoot and kill anyone, if he reasonably felt that he was at risk of death or serious bodily harm. It became, in effect, the law of the Old West, the law in practice in Abilene, in Tombstone, and at the O.K. Corral.

I don't think there is a legal predicate for the federal government to now step in and undertake a civil rights prosecution, although the pressure will surely be there for that to happen. What activists and political leaders should be focusing on is bringing about change that might forestall another tragic event like this in the future.

First, I think "stand your ground" is perfectly valid in a person's home. There should be no duty to retreat when one's home and family are threatened. But outside the home, a duty to retreat from a confrontation that might involve gunplay, if there is a reasonable opportunity to do so, should be part of the law in any civil society.

Second, although it had no effect in this case, no felony criminal case that involves a risk of significant incarceration should be decided by a jury of six. Twelve jurors should be the federal mandate in every state. (It would take a constitutional amendment, but it is one that should elicit wide support.) There is just too much that can go wrong with so few jurors deliberating, for the prosecution as well as for the defense. A larger group of jurors is less susceptible to one or two strong personalities taking over the process.

Third, there is not enough respect in this country for our system of criminal justice. It has flaws (more so in the past than today), but it is the best system imaginable. We should always seek ways to make it better, but let's stop disparaging it when we don't like the outcome.

I try to hit the mute button whenever the Rev. Al Sharpton's face appears on my television screen, but sometimes I'm not fast enough. (I can't forget his involvement in the Tawana Brawley affair, 25 years ago last month.) I think it was Sharpton who, after the Zimmerman verdict came in, compared Trayvon Martin to Medgar Evers, the civil rights leader shot down by racist vigilantes in front of his Mississippi home in 1963.

Evers was a true hero of the civil rights movement. Trayvon Martin was, by all appearances, a nice kid who died too young because of the stupidity of another human being—something that happens hundreds of times a day in this country, largely because of the culture of guns and violence so prevalent in our society. I would like to see more media attention paid to those issues, rather than the wall-to-wall coverage and sensationalism given to one, not particularly unique case.
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