The Zimmerman Jury Is Out [UPDATED]

The Zimmerman jury went to their hotel for the night without reaching a verdict. No surprise there. My guess is that we will have a verdict tomorrow; if not, it will be a bad sign–an indication that there are some jurors holding out for a conviction.

Normally I wouldn’t be able to watch a live stream of a trial during the day, but having been laid up with plantar fasciitis for three days, I actually saw a good bit of the proceedings live, and followed the rest on Legal Insurrection, where Andrew Branca covered the trial on almost a minute-by-minute basis and provided daily synopses. Based on all of that, I have some rather strong opinions about the case.

First, there is no way George Zimmerman should be convicted. The defense easily proved by a preponderance of the evidence, and possibly even beyond a reasonable doubt, that Zimmerman acted in self-defense when he shot Trayvon Martin. The physical evidence, of course, is the most important. There is essentially zero credible evidence to contradict Zimmerman’s account of what happened. And, of course, this wasn’t the defense’s burden of proof, it was the prosecution’s.

The Zimmerman case is reminiscent of the prosecution in To Kill a Mockingbird. In both cases, the defendant was rather obviously innocent, and the prosecution never should have been brought. But the forces of prejudice, ignorance and raw political power prevailed, and an innocent man was put on trial for his life (or most of it, anyway, in Zimmerman’s case). In Atticus Finch’s closing argument, he called on the jurors to do their duty. Unfortunately, they didn’t. Defense lawyer Mark O’Mara echoed that call in his final argument today. Will the Zimmerman jurors do their duty? I think they will, mostly because jurors usually do. But the glare of publicity can do funny things.

Second, the trial was a pretty good example of modern trial practice. That is to say, the proceedings were quite informal; no one in the courtroom had much of a grasp of the rules of evidence; and for the most part, the lawyers weren’t especially skilled. O’Mara is the only one whom I would rate as above average. Many commentators described the prosecutors as bumbling, but to be fair, they had a lousy case. The most curious thing they did, in my view, was to introduce into evidence video and audio recordings of the multiple statements that Zimmerman gave to the police following the incident. I was mystified as to their rationale. The defense, of course, couldn’t have gotten these recordings into evidence. By showing the jury Zimmerman telling his story in the hours after the shooting, the prosecutors took him off the hook: why testify when the jury has already seen and heard him giving his account of what happened? Without any cross-examination! For the defense, it was the best of all worlds.

Having shown the jury Zimmerman’s several statements, the prosecution tried to peck away at them by showing minor inconsistencies. This strategy reflects the prosecution’s weak case: they didn’t have any direct evidence of what happened during the crucial minutes leading up to the altercation between Martin and Zimmerman, so they tried to fill the critical gap in their proof by showing the jury Zimmerman’s statements, and then attempting to poke holes in them. This stratagem may be understandable, given the weak hand the prosecution was playing, but it goes without saying that the prosecution’s burden of proof is not satisfied by poking holes.

Third, Judge Nelson seemed adequate to me. She kept control over the courtroom and generally seemed reasonably even-handed. She made one key evidentiary ruling, excluding dozens of text messages that were sent or received by Trayvon Martin. These texts made Martin look very bad: they related to drugs and guns, and showed that he considered himself an expert fighter. Zimmerman’s supporters were outraged, but I am not at all sure the ruling was wrong. There is a whole body of law relating to when evidence of prior “bad acts,” or evidence otherwise purporting to show a propensity to act in a certain way, is admissible in criminal trials. I haven’t studied the Florida cases, but in general, courts try to keep such evidence to a minimum. It is likely to be prejudicial; one can imagine how easily jurors could seize on Martin’s texts portraying himself as an expert fighter, seeking to buy a gun, and so on, as support for Zimmerman’s claim that he acted in self-defense. But that is exactly the problem: the sole issue in the case is what happened over the course of a few minutes on the particular night in question. Collateral inquiries into actions of the parties on other occasions are, generally speaking, irrelevant at best. Thus, Judge Nelson similarly excluded evidence of an arrest of George Zimmerman that happened eight years ago, with respect to which the charges were ultimately dismissed.

Fourth, by pretty much unanimous consent, the highlights of today’s arguments were two unorthodox moves by Mark O’Mara. First, he had life-size cutouts made of Trayvon Martin and George Zimmerman and set them in front of the jury. The demonstration apparently was quite striking, in that Martin–the prosecutor kept trying to remember to call him a “child” or a “boy”–was so much bigger. Second, O’Mara wanted to dramatize the fact that there is a large gap in our knowledge of what happened in the course of the encounter. More than four minutes went by between the conclusion of Martin’s phone conversation with Rachel Jeantel and when a neighbor placed a 911 call as the fight was in progress. The prosecution claimed that Martin was fearful of Zimmerman, who was following him, and was running for home. Only Martin could have gotten to his destination in a matter of seconds. So what happened during those fateful four-plus minutes?

To dramatize the point, O’Mara interrupted his closing argument for over four minutes. He told the jury what he was going to do, stopped talking and set a digital timer. He sat down at the defense table, chatted with co-counsel, and everyone in the courtroom watched the seconds tick off. Four minutes is a long time in any context, but in that environment, it feels like about a year. O’Mara forcefully made the point that Martin obviously wasn’t running home to escape someone he was afraid of. Rather, it is far more plausible that he laid in wait for Zimmerman and then attacked him, as Zimmerman said.

Will we get a verdict tomorrow? We had better. It shouldn’t take too long for the jury to acquit; if they don’t come back tomorrow, it will be a sign that some jurors have gone off the rails.

UPDATE: Michael Ramirez puts it graphically. I think he is right; the only reason Zimmerman is on trial is that Barack Obama and other politicians and hustlers saw political advantage in persecuting him:

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