LAST EDITED ON 07-10-13 AT 07:15 AM (EST)
‘The one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box.
I'm no idealist to believe firmly in the integrity of our courts and in the jury system—that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty.’ ~ The character, Atticus Finch, in the novel by Harper Lee.
Most often, when we think about Jury Nullification, the drama that we envision features a courageous jury or other trier of fact who – because they believe the applicable law governing the case to be evil and unjust – refuse(s) to convict the defendant despite the fact that he is, by virtue of that law, most certainly guilty of the crime charged. And, of course, since a jury or other trier of fact exercising that power – or right, depending upon your point of view – plays havoc with any judicial system, there has been a great deal written, spoken and yelled about the phenomenon. One consequence of all of that debate:
With Edward Gibbons’s observation in mind - “Whenever the offense inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind" - as part of their effort to minimize the instances of Jury Nullification in their jurisdictions, American courts continue to vigorously resist any requirement that juries be informed of the sentences attached to the crimes charged. For instance:
The maximum penalty for 2nd Degree Murder in Florida is life in prison. The maximum penalty for Manslaughter is thirty years in prison. And Judge Nelson is known for her propensity to impose maximum sentences. But George Zimmerman’s jury will not be told these things.
Mr. B. B. Underwood was at his most bitter, and he couldn’t have cared less who canceled advertising and subscriptions. (But Maycomb didn’t play that way: Mr. Underwood could holler till he sweated and write whatever he wanted to, he’d still get his advertising and subscriptions. If he wanted to make a fool of himself in his paper that was his business.)Mr. Underwood didn’t talk about miscarriages of justice, he was writing so children could understand. Mr. Underwood simply figured it was a sin to kill cripples, be they standing, sitting, or escaping. He likened Tom’s death to the senseless slaughter of songbirds by hunters and children, and Maycomb thought he was trying to write an editorial poetical enough to be reprinted in The Montgomery Advertiser.
How could this be so, I wondered, as I read Mr. Underwood’s editorial. Senseless killing—Tom had been given due process of law to the day of his death; he had been tried openly and convicted by twelve good men and true; my father had fought for him all the way. Then Mr. Underwood’s meaning became clear: Atticus had used every tool available to free men to save Tom Robinson, but in the secret courts of men’s hearts Atticus had no case. Tom was a dead man the minute Mayella Ewell opened her mouth and screamed. ~ The character, Scout, in the novel by Harper Lee
But far less often do we hear the term, Jury Nullification, applied to what I believe to be its other face:
The pusillanimous jury who because of their hostility toward a law (or a body of law), or because of their bias against the person of the defendant, or because of a determination to appease the prejudices of the most vocal voices within their community – or because of all three – delivers a guilty verdict despite the clear and convincing presence of a mountain of reasonable doubt before them. And I’ve brought Ms. Harper Lee’s novel into the discussion because I have always thought of it as the most compelling exploration of that particular form of cowardice, mob mentality and racial bigotry that I’ve ever read. That said:
In the novel, the body of law that the community of Maycomb and Tom Robinson’s judge and jury found so abhorrent was all of those constitutional provisions and amendments and all of those statutes (principally, in that era and locale – federal) that cumulatively demanded that they accept, without reservation, Mr. Robinson’s equal standing before the law and his right to the equal protection of it - including his right to the presumption of innocence until and unless the State met its burden to prove his guilt beyond a reasonable doubt. So, faced with the fact that they had failed in their efforts to make the constitutionally-appropriate bodies – Legislatures, Executives and Appellate Courts – see things their way, that community and judge and jury hijacked Tom Robinson’s right to be subjected to the rule of legitimately-constituted laws rather than to the extralegal mores of a gang of twelve self-righteous and self-anointed vigilantes – fair trial be damned.
“Atticus, you must be wrong...."
"How's that?"
"Well, most folks seem to think they're right and you're wrong”. ~ From the novel by Harper Lee
And in The State v George Zimmerman, the laws that the most strident members of a ‘community’ that now stretches ‘round the globe find so hateful are those Florida statutes that permit a resident of the state to carry - upon compliance with the statute’s conditional regulations - a concealed weapon on his person and the Florida statutes that permit its citizens to employ deadly force to counter an attack that they reasonably believe may result in their death or cause them great bodily harm.
And hateful or not.
Ill-conceived or not.
Unpopular or not.
The inconvenient fact is that the elected representatives of the people of the State of Florida in the form of its duly constituted Legislature, has - following public hearings, debates and majority votes - exercised its exclusive authority to define the difference between Self Defense and Murder - See 782.04(2) and Manslaughter- See 782.07 and that it has also published the statute regulating its License to carry a concealed weapon or firearm .
Also, inconvenient or not, it is a fact that an American trial court sitting in a criminal case exists for the sole purpose of affording the Defendant and The People due process of – existing - law. It has no legitimate legal authority to redefine, reinterpret, ignore, disavow, make or imagine law. It is not a justice laboratory, a social experiment or a compensatory body. Put bluntly: George Zimmerman’s judge and jury have no codified or moral license to change the rules of the game at the expense of his freedom for the remainder - or for the next thirty years - of his life.
And if it abandons its sworn duty to the Defendant by nullifying its reasonable doubt(s) of his guilt, then we have, I think, not come far from Maycomb, have we?
If you just learn a single trick, Scout, you'll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view... Until you climb inside of his skin and walk around in it. ~ The character, Atticus Finch, in the novel by Harper Lee.
As for the elephant in the courtroom – racial bias:
I think that it might be more helpful in understanding the cultural/racial undertows of this trial and/or of the fictional trial of Tom Robinson (remembering that his jury was all male and all white) if, instead of asking ‘What if both principals, then and now, had been white?’, the question posed is ‘What if, then and now, both principals had been black?’.
You goin' to court this morning?" asked Jem."I am not. 't's morbid, watching a poor devil on trial for his life. Look at all those folks, it's like a Roman carnival."
"They hafta try him in public, Miss Maudie," I said. "Wouldn't be right if they didn't."
"I'm quite aware of that," she said. "Just because it's public, I don't have to go, do I?" ~ From the novel by Harper Lee
As for me:
Based upon the testimony/evidence that I’ve heard and seen streamed from the courtroom - and bearing in mind that we have not yet seen and heard the remainder of the Defense’s case, the Prosecution’s Rebuttal (if any) or the Defense’s Surrebutal (if any), or, most importantly, Judge Nelson’s instructions to the jury - I don't think that the State has proved, beyond a reasonable doubt, its charge of 2nd Degree Murder. However (if some degree of Manslaughter then becomes the question), I am also not yet convinced beyond a reasonable doubt that George Zimmerman shot Trayvon Martin as the result of a reasonable fear of imminent death or great bodily harm. But, I will confess that, until we hear the jury instructions, I am far less than certain when the burden of proof shifts from the Prosecution to the Defense. Or, given the Defense’s assertion of self-defense, if it does.
So far, things were utterly dull: nobody had thundered,
there were no arguments between opposing counsel,
there was no drama; a grave disappointment to all present ~
The character, Scout, in the novel by Harper Lee