CRIME AND ITS FASCINATIONS : SOME THOUGHTS ON THREE MASSACHUSETTS MURDER CASES

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PART V : THE TRIAL

Assuming that a high-profile murder case can make it past trial preparation in reasonably useful shape, it finally goes to trial.

So, the question needs be asked: what IS a trial ?

To the gut-reaction public, a trial is an action by which the public’s judgment of the outcome is confirmed. If the public thinks an accused guilty, the trial is supposed to find him gulty. If the public thinks an accused is not guilty, the trial’s job is to find him or her nor guilty.

In the pre-Civil Rights South, trials, of Black people most of all, were exactly what I have said above, except that a finding of not guilty was never an option. To bring an accused to trial was to obtain a guilty verdict. No more, no less. Today we do it differently. We are prepared — so we say — to accord the accused a fair trial, complete with defense lawyers paid from public funds if need be and a jury carefully selected by both sides. Rules of evidence are accepted. The jury is allowed to deliberate for as long as it pleases them. Yet a verdict of guilty is expected, in the end, just as back in the old South.

A trial, however, is not that AT ALL. A trial is a procedure for getting at the truth of the matter, let the chips fall as they may. Impartiality is the guide. A trial has no expected outcome other than that the outcome will be as close to the truth as is feasaible given that human minds and procedures only approximate.

As this is what a trial is, it’s not at all a given that the public agrees that there should be trials of high-profile murder cases. The public says it does, but its actions in high-profile criminal cases say otherwise.

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Nonetheless, we have trials, and those whom we entrust with governance in our society are unshakably committed to having trials and ensuring their fairness. Grumble though we might, we at least allow trials to take place without interference. Court TV, no doubt, has helped to give the public an interest in letting trials take place according to the rules. By “rules,’ we mean the presentation of evidence, its cross examination, and attorneys’ summations before and after the presentation of evidence.

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Whole libraries of hornbooks have been written on the Law of Evidence. (The best is the classic treatise, Wigmore on Evidence.) We cannot do an extended discussion of Evidence Law here, but suffice to say that it includes all the familiar — but very difficult to apply — “Law and Order” cliches : the rule against Hearsay, the admissibility of death bed speech, forensic findings, surveillance camera footage, witness testimony, confessions, authentication of records, evidence illegally obtained, telephone messages, and the like.

The basic rule of admissibility is this : does the evidence help to get at the truth ? Or is it prejudicial, or irrelevant, or self-interested, or otherwise unhelpful ?

Does it go without saying that conjecture is not evidence ? An expert giving expert testimony is permitted to give an opinion. No one else may do so. Can I add that race prejudice abiout the accused, and such like, are not evidence ?

Unfortunately, those of us who watch a high-profile trial on TV, or read about it in the news, have nothing to offer a trial except opinion, conjecture, or even, for some of us, race prejudice. Because that is all that we have; because we are not even in the courtroom, where presentations play out differently than as filtered by media, and where boredom is the usual sound; because we feel strongly about the ccas — if not, it would not be high profile — we tend to decide the outcome of a trial on grounds that must play no part in that trial ! Ironic, isn’t it ? But none theless toxic to the administration of a trial.

Thus the dilemma that continues present in today’s criminal law : we say we wnat fair and impartial trials, but we do not. We say we want the jury to reach ITS verdict, but in fact we wnat it to reach OUR verdict.

We want these things vehemently, noisily, frigheningly.

Given what we are like in this regard, it’s a wonder that trials — real trials — exist at all. Perhaps it’s the innate skepticism that also resides in our souls, along with the conjectural certainty, that gives trials room to breathe, and flower, and produce — one hopes — their fruit of truth.

—- Michael Freedberg / Here and Sphere

PEOPLE v. ZIMMERMAN : ANALYZING THE VERDICT

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The jury that gave its verdict did not spend 16 plus hours deliberating because it wanted to acquit Zimmerman. It spent that time trying to figure out the evidence. What did it mean ? What was really going on ?

Their task was not made easy by the prosecution’s incompetent trial preparation. Key witnesses gave ineffective testimony, even damaging testimony. It is Law School 101 that you never, ever put a witness on the stand for direct examination — cross examination is another matter entirely — without knowing what he or she is going to testify to. In the Zimmerman case, several prosecution witnesses said things that, in trial prep,, should have been shaken out. The coroner couldn’t remember. Martin’s girlfriend changed her testimony. A police witness said that Zimmerman’ s story sounded true. Neighbors who had heard or seen snippets of the altercation went this way and that as to what happened.

Given such a muddle, it’s a wonder that the jury didn’t make its finding in an hour or two.

They did not do that. Instead, they did pretty much what we at Here and Sphere did, in our two editorials : they tried to make sense of the known facts.

These were :

1.Zimmerman defied the advice of the poloice 911 dispatcher to not follow Martin.
2.Zimmerman followed Martion without identifying himself.
3.Zimmerman put Martin in fear, and that fear was reasonable.
4.as Zimmerman continued to follow, without identifying himself –even after Martin asked, “why are you following me?” all Zimmerman said was to ask “what are you doing here ?” — Martin defended himself.
5. Martin gave Zimmerman quite a beating.

Up to this point, there could be no question that Zimmerman had acted recklessly. We at here and Sphere have assumed — as has most of America — that Zimmerman’s reckless conduct, leading to the shooting of Martin, was criminally culpable, as reckless conduct resulting in a death is held to be in most jurisdictions; and that one cannot claim self-defense if things go against you as a result of your own reckless conduct.

But what if the jury, in its lengthy deliberation, put a question at first rather startling  : “Did Martin, otherwise reasonably defending himself, go too far ? Did he himself use excessive force ?”

One who is put in fear to the extent of reasonably defending himself certainly has the lawful right to use force to do so. But only so much force as will deflect the attack. Once the person putting you in fear is giving up, you have a legal duty to stop.

The law puts this limit on defenders because, for very solid public policy reasons, it cannot allow defenders to wreak their own mayhem. We see, in videos and photos, what happens when an attacker is pummeled by defenders — pummeled and even killed. Being attacked makes a person angry. Anger all too readily begets crime. the law wants to prevent that, and it is right to do so.

The Zimmerman jury surely debated whether or not Martin, at first properly defending himself, had gone too far. Once Zimmerman had been knocked to the ground, it was up to Martin to step back; to not continue beating Zimmerman up. It appears from the testimony that he did not step back. And thus Zimmerman’s claim of self defense revived, after being negated by his own, original recklessness. Martin, in going too far, initiated culpable conduct of his own.

This is what the jury must have concluded; because otherwise their verdict makes no sense. and verdicts that take 16 plus hours to reach are not given casually or thoughtlessly.

None of this changes the bigger picture: that Martin was going lawfully about his business; was profiled and hunted down because he was Black; and that Zimmerman acted recklessly and with animus. Had Martin been White, or had Zimmerman not been filled with animus against “punks,” Martin would be alive today, and Zimmerman would not be facing Civil Rights charges. Instead we have had to live through a case that much of America sees — rightly — as the result of Black men being seen not as people but as problems (as said Minister E. G. Warnock of Atlanta, GA.)

Yet if none of our analysis changes the bigger picture, it does explain the verdict and makes sense of how and why it was found.

—- Michael Freedberg / Here and Sphere