Posted on 08/07/2013 1:37:14 PM PDT by 2ndDivisionVet
The response was predictable, even to those who had maintained hope for a different outcome. After the jury found George Zimmerman not guilty of murdering Trayvon Martin, many cities erupted into protests of what was perceived as a fundamentally unfair and racially-biased verdict that was the result of a broken justice system. Among those protesting that Zimmerman should be punished, some admitted that the flaw was actually found within the Florida law which departs significantly from the common law by allowing individuals who initiate confrontations to use deadly force to defend themselves without a duty to escape. Florida's Stand Your Ground statutory language, although not the focus of Zimmerman's defense, was incorporated directly into the jury instructions, which stated, "[i]f George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force[.]"
One juror has already come forward to admit that she felt Zimmerman was guilty of killing Martin but that the jury could not find him guilty under the law. Most legal analysts concur in that view, with many lamenting that Zimmerman could not be convicted of either second-degree murder or manslaughter under Florida law, even if he is morally responsible or might have been convicted under traditional common law standards. Zimmerman was inevitably going to be acquitted because the prosecution had not disproven his self-defense claim beyond a reasonable doubt.
Despite the apparent, if depressing, clarity of the legal issues, however, there are those who believe that justice could have been served if the jury had disregarded the law and found Zimmerman guilty. This is a phenomenon known as "reverse jury nullification," and its proponents should carefully consider the consequences of what they are suggesting. Releasing juries from their duty to apply the law to the facts of a case will only increase the potential for injustice and bias.
Jury nullification [PDF] in Anglo-American law enjoys a long, documented history that is filled with references to free speech and victory over tyranny. The typical argument in favor of nullification is that juries have a right to express disapproval of a law or system of laws by refusing to convict defendants even though the prosecution has met its burden of proving guilt beyond a reasonable doubt. It is a populist, grass-roots branch of the checks and balances system. Recently, and true to its legacy of invalidating "victimless crimes," jury nullification has become a popular technique for those who oppose the war on drugs or laws deemed to be an excessive governmental intrusion, such as bans against raw milk. However, nullification has also been rightfully criticized due to its use by all-white juries to indemnify white defendants who committed racially-motivated crimes.
By comparison, reverse jury nullification receives limited press. Yet, like nullification, reverse nullification has played a role in perpetuating racial injustice. There can be no denying that all-white juries have convicted black defendants based on a belief that the defendants should be punished rather than on evidentiary proof. The shameful show trials of the Scottsboro Boys which produced, but did not culminate in, the historic decision of Powell v. Alabama should serve as a reminder that juries are susceptible to the same hate and fear that warp a legal system. While most law students study Powell for the rule that defendants in capital trials have a due process right to counsel, the facts of the case and the numerous, farcical trial proceedings illustrate how significantly — and how recently — the American criminal justice system could be manipulated to convict black defendants based on flimsy evidence because prosecutors could rely on the racist sympathies of their juries.
The most abhorrent consequence of reverse jury nullification is that it results in punishment for a defendant who has either not broken a recognized law or who has not been proven guilty beyond a reasonable doubt. Reverse nullification licenses juries to apply their own personal prejudices and idiosyncratic values rather than the orderly, unbiased, application of fact to law. The risk is not hypothetical. An empirical study [PDF] found that juries given nullification instructions spent less time considering evidence. They were also more likely to convict "unsympathetic" defendants, such as drunk drivers and more likely to acquit "sympathetic" defendants, like those who kill out of mercy. Similar to Lon Fuller's Rex in The Morality of Law, juries permitted to nullify can change laws to fit circumstances and characteristics of individual defendants until the results become completely unpredictable and impossible to follow, increasing the instability and lack of faith in the criminal justice system. While this charge can easily be leveled against traditional nullification, the difference with reverse jury nullification is that, instead of sending a guilty defendant home, an innocent defendant goes to jail.
Of course, Zimmerman wasn't altogether innocent. He admitted he shot Martin and the facts show that he ignored multiple opportunities to avoid the confrontation that ultimately led to Martin's death. Had it not been for the peculiar nature of Florida's self-defense laws, he may have been convicted. But the fact remains that, under the law as it existed then and as it exists now, the only way for the jury to convict him would be to ignore the law and the evidence.
Admittedly, in the case of reverse nullification, the defendant can still appeal or the trial court can set aside the verdict, but neither options are foolproof. More generally, if the argument for nullification is that the legal system is so flawed that it must be subject to an additional check by the jury, then it seems irrational to remove existing restrictions by disregarding evidentiary standards or requirements of a crime. Zimmerman has been accused of vigilantism and Stand Your Ground laws of encouraging vigilantism. Both are valid claims, but the solution to vigilante justice is not to encourage vigilante juries.
In its closing argument, the prosecution hinted that the jury could use "common sense" if they found that the evidence and witness testimony were not enough to convict. It was not a direct call for reverse nullification, but it certainly acknowledged what so many were already thinking: the prosecution had failed to make its case. Understandably, the prosecution, and those who wanted Zimmerman to be convicted, hoped that the jury would look past that infirmity and focus on the terrible prospect of finding that a man can pursue and kill an unarmed teenager without punishment. The jury, however, apparently listened to their instructions: "If you fail to follow the law, your verdict will be a miscarriage of justice. Even if you do not like the laws that must be applied, you must use them. For two centuries we have lived by the Constitution and the law. No juror has the right to violate rules we all share."
Florida's governor Rick Scott has shown no interest in changing or repealing the state's self-defense laws. It is tempting for opponents to advocate any means necessary, including jury nullification, to invalidate Stand Your Ground or combat biased application of the law, but doing so will only exacerbate the belief that the American criminal justice system is broken and run amok. As the emotional interview with Juror B29 indicates, applying facts to the law can require painful discipline and can lead to equally painful outcomes. There is no reason to believe, however, that giving juries the authority to ignore the law will achieve more just results. To the contrary, as history has shown, it will accomplish quite the opposite.
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Liz Clark Rinehart is a member of the Maryland Law Review. She has volunteered with the Mississippi Center for Justice and the Maryland Office of the Public Defender.
Suggested citation: Liz Clark Rinehart, The Zimmerman Verdict and Jury Nullification, JURIST - Dateline, Aug. 7, 2013, http://jurist.org/dateline/2013/08/liz-rinehart-jury-nullification.php
If these are the future Massachusetts lawyers, I hope, if I’m ever being tried, that my lawyer comes up against one of them. They’re idiots.
The overwhelming facts vindicating Zimmerman are there and they can’t see them.
Did you, by any chance, actually read the article? Just asking.
Case #2 is incorrect. Just saw that he’s not going to be charged.
I believe they had one sort of black juror, but the article talks about all white juries. That is a constant theme in liberal world. Even when the minority killer is heinous, they create a fable around the “all white jury” that sentenced them to death.
You are scratching your head due to politeness. The people you are describing are racists by definition, pure and simple.
There is no other explanation.
There was a black lady juror.
“There are times I wish that I had the ability to grab people like this around the throat and scream into their face, “George Zimmerman did not initiate the confrontation with Trayvon Martin”
You don’t understand that these people want to make suspecting a black person of criminal intent into justification for a beat down.
Oh I figured that part out long ago. I guess I just cannot imagine people believing there is or should be no right of self-defense. I have even talked to several that actually firmly believe that- one woman told me she didn’t think it would be right for her to shoot someone even if they were raping and murdering her. Say what?
I cannot imagine anyone not understanding the concept of self-defense. I do believe there are many that are upset, the black “leadership” of course is stirring the pot as usual. Many in the media don’t mention self-defense...but there are also many blacks that believe Zimmerman got away with murder. I heard a black lady going on about that in a store the other day and I know she is not an inner city person, she is upper middle class with a successful career and hasn’t been near a ghetto in her whole life.
People are entitled to be so pacific they’ll allow themselves to be killed before they kill someone. It’s a reasoned, if not rational belief system. Just as long as they keep it to themselves and don’t try to preclude my self-defense. That’s why we’ve been seeing the unrelenting propagandizing of this incident: The grabbers are trying to render us all powerless for the benefit of their thug children.
It's all about putting one over on "the man." They knew OJ was guilty as carp, but he killed a whitey and got away with it! The second whitey was a bonus. Instant "hero."
When a patriotic American is confronted by such breathtaking ignorance, such profound detachment from the notions of Freedom and Justice, he or she should be rightly appalled.
People who write this way, talk this way, and think this way represent the greatest threat to Freedom that America will ever see. Whether willful or well-meaning, rich or poor, educated or barbarian, they are totalitarians of the highest order. They hold the type of mindset which fuels the rise of savage regimes like the Nazis and other such murderous collectivist abominations like we saw in the 20th century.
It looks the the 21st century might just outdo the 20th in the "democratically enabled murderous Tyranny" department, especially with the advance of technology and its arbitrary and Unconstitutional use by Government.
Any patriotic American who is aware of our Revolution, the basics of Common Law, the Enlightenment, Natural Rights, Classical Liberalism, and the reason for minimal government in the first place, knows that such "reasoning" is antithetical to everything this country ideally stands for.
We must fight all of the Tyranny which we find ourselves in the midst of, and I am convinced that the price will be not only our treasure, but, even moreso, the blood of many of us and our countrymen.
Rest assured, we and our ilk will be made examples of, by the elite and who take turns dominating us.
But I digress...
Thanks for the update. It was being reported that he would be charged, they seriously considered it.
One of the many mistakes in this article by the law student class of 2015.
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