THE BLOG

Conundrum in the Courts: Zimmerman's Lawyers Win

Jul 22, 2013 | Updated Sep 21, 2013

Let's face it: George Zimmerman's lawyers ("bad counsel" West and "good counsel" O'Mara) pitched a no-hitter in his Florida trial -- or rather in the trial of Trayvon Martin, which they so artfully conducted with the egregiously ill-considered assistance of the prosecutors.

The State's lawyers started out with one strike against them when they went for second-degree murder without the benefit of any witness that could corroborate their theory of the case to show malicious intent on the part of Zimmerman. Stick with a case where the only real "witness" to the events in question was the alleged perpetrator, they then took a second strike against themselves (more like an "own goal" in soccer terms) by deciding to introduce in evidence prior out-of-court video statements of Mr. Zimmerman to police and Sean Hannity of Fox News giving his unchallenged version of events (the gist of which was that he was savagely attacked by Trayvon Martin who pounded his head onto pavement for nearly a minute whereupon he shot him because he feared for his life).

Here the prosecutors were too clever by half, or maybe by at least three-quarters! Sensing correctly that the defense would probably want to keep Zimmerman off the witness stand (as is his Constitutional right), the state's lawyers apparently thought that his prior statements -- as self-serving as they were -- included enough inconsistencies as to facts and circumstances that either Zimmerman's credibility with the jury would be diminished or he would be forced to testify to clear things up, which would give them the opportunity to attack him on cross-examination. As it happened, we now know neither such eventuality occurred.

As a result, the defense, which could not itself have entered those statements into evidence without conceding to cross-examination of Zimmerman, was given a gift that kept on giving for the duration of the trial. The "narrative" of the ultimate confrontation -- however physical in nature it actually was we'll never know -- for purposes of the trial became Zimmerman's and only Zimmerman, yet he remained scot-free of any cross!

The state knew it had no witness that could effectively contradict Zimmermen's version of events, Trayvon being dead, the testimony as to whose voice cried for help on the 911 call being contradictory and inconclusive, and Trayvon's friend on the other end of his fearful cell phone call being a most-uncooperative witness who, in any event was not in on the final moments of the encounter with Zimmerman. If anything, the failure of the victim to at any point say that Mr. Zimmerman was showing a weapon must have left the jurors with the sense Zimmerman's story, that he drew only at the last instant, was probably true.

Had Zimmerman shown the weapon, it would have been Trayvon Martin who had the right to "stand his ground" and use deadly force -- even a sidewalk -- to subdue Mr. Zimmerman, rendering Zimmerman's defense literally groundless. But we really don't know whether Zimmerman didn't just follow and question but physically threatened young Mr. Martin in any way, because we only have Zimmerman's word -- and the disembodied cry for help which the court concluded was beyond the ability of modern technology to identify (hard to believe in the days of Zero Dark Thirty, drones and the NSA big data digs).

The third and final strike came for the prosecutors when they threw in the manslaughter charge only at the very end with no effective evidentiary or case-building presentation to guide the jury -- leaving the six women to imagine that they were being begged for a compromise verdict by a team that knew it had lost its case. The prosecutors surely should have known that Florida manslaughter law is rather complex and contradictory in its legal phrasing, and that the jury would have to be led through it step-by-step from the outset, not as a last minute Hail Mary. As it turned out, three of the six jurors voted to convict at least of manslaughter on the first go-round.

The State had a chance and blew it, even with a weak set of evidence, because jurors at least bought into the prosecutor's theory that Zimmerman triggered the incident by not staying in the car like the police told him to do. But inconsistencies were never going to undermine Zimmerman's story line in a "reasonable doubt" case -- only cross examination would do that, and the State could have forced the defense to find a way to get Zimmerman's story out to the jury without cross -- a very hard row to hoe.

While the prosecutors left race considerations out of the case, they were constrained by the judges ruling precluding references to racial profiling (only allowing "profiling" to be alleged). The coup-de-grace to the State's case came when the judge refused to instruct on the Florida exception to its "stand your ground" defense that applies when the defendant can be found to have started the physical altercation. She found that the state had produced no such evidence, so such instruction would not be warranted or proper. Without such an instruction, the jury was left to its own devices. Prosecutors should have gamed out this entirely predictable judicial ruling and framed their charges according. They left court with a person most observers -- including the jury -- considered "guilty of something" -- getting off for shooting an unarmed kid who was himself exposed as a pot-smoking fight fan in the trial the defense put on against him, with only token opposition.

Moreover, chances of proving federal civil rights criminal charges against Mr. Zimmerman would seem to be slim. It's hard to go from saying the case isn't about race to saying it is, if only because the jurisdiction changes. The sense here is that Attorney General Holder's recent and understandable outburst against the new "stand your ground" defenses are a substitute for, rather than prelude to, a federal prosecution, however much aggrieved many are at the outcome in Florida. Sometimes it happens that the best lawyers win. At the end of the day, we are left with our somewhat exceptional, and time honored, Constitutional trust in juries (like voters). And the Zimmerman case outcome can only be effectively reversed by the voters.