Zimmerman Verdict Confirms What We All Knew All Along

The verdict in a criminal trial is a dismal medium for sending a message. Seldom does anyone outside the criminal courtroom care what has happened inside.

Even if people are paying attention, criminal jury instructions don’t ask “what message would you like to send?” but only whether the government has proven its case. A verdict that is issued to send a message is not based on the facts and the law. So a jury that has “sent a message” with its verdict has gone outside its jury instructions; a jury that has gone outside its jury instructions to reach a verdict has broken its oath. Absent compelling evidence of misconduct, we pretend that a jury followed its oath. The message of a conviction is that the government proved its case beyond a reasonable doubt; an acquittal simply means that it did not. There is no additional signal contained in the verdict.

To call for a jury to “send a message” with a culpability verdict is to call for jury nullification. Criminal-defense lawyers, of all people, know this. And yet friends of mine, experienced trial lawyers, see the verdict in George Zimmerman’s case as sending more of a message than “the Government failed to prove its case”: Black men’s lives aren’t valued, for example, or American society still thinks it’s okay to murder a Black man.

In truth, I agree with them that American society values black men’s lives less than white men’s such that black men are more likely to be killed with impunity than are white men. But that’s a message that we carry with us, not a message contained in the verdict. What my friends see as “a message” I call “confirmation bias.”

We all are affected by confirmation bias all the time: we make up our minds, and then filter our observations through our beliefs, ignoring or minimizing those that don’t confirm those beliefs and emphasizing those that do.

If George Zimmerman hadn’t expected a black kid walking through his neighborhood to be a criminal, he might have made decisions that didn’t lead to a young man’s death.

Not only do individuals do this, but juries do as well. They make up their minds early, and deprecate all evidence that doesn’t support their decisions. When you are trying a case, unless the evidence is mind-blowing, you’re going to lose if most of your jurors believe your adversary’s story at the end of opening statements. You don’t have to capture all of them: the majority on the first vote in the jury room usually sways the others to its side.

The three jurors in the Zimmerman case who voted for acquittal on the first ballot had, I would wager (though there’s no way we can know—jurors are unselfaware of their decision processes, so self-reporting can’t be trusted) gone through the whole trial “feeling” that Zimmerman had been defending himself. Which would mean, of course, that they decided the case based on something other than the law and the facts. And it may have been that six black jurors, or a more diverse panel, would have started out—and wound up—believing that Zimmerman initiated the violence.

(I believe that Martin was more likely to initiate physical violence, not because he was black but because he was seventeen. I’ve been seventeen, and I’ve been twenty-nine, and seventeen is a more volatile age. I also believe that, all else being equal, the guy who knows there’s a gun in the picture is less likely to come into striking range than the guy who doesn’t. If you’re close enough for me to hit you, you’re close enough for me to take away your gun and shoot you with it. None of that means that I think that’s what happened in the particular case.)

But we’ll never prove that the verdict would have been different with some other combination of races (defendant / complainant / jurors); it is only by circular reasoning can we say that the verdict sends a message about race.

It doesn’t tell us anything we didn’t already believe.

12 responses to “Zimmerman Verdict Confirms What We All Knew All Along”

  1. We’ll never know the truth about what really occurred. But if Martin had survived his gunshot and told his side of the encounter it’s likely Zimmerman would have already been serving time. Many aspects of the case seem implausible, such as Martin allegedly telling Zimmerman “tonight you gonna die” as he was pelting him on the sidewalk. I’ve been in more physical altercations than I care to remember, and I know that trash talk is done before and after the fight, not during. Besides, George was the real tough guy here, taking classes in mixed martial arts. Zimmerman set this up just the same as Houston firefighter Raul Rodriguez tried to set himself up when he killed Kelly Danaher. The main factor between the two cases long with the two different outcomes was Rodriguez killed a white schoolteacher, while Zimmerman killed a black teen. If you disagree, and I’m betting you do, then read the linked story but substitute black teen for Danaher, and black teen friends for Danaher’s party guests, then guess how a Houston jury would have ruled. Rodriguez would be living his retirement in his home (instead of a prison cell) if only he had chosen his victim a bit more carefully. http://www.huffingtonpost.com/2012/06/27/raul-rodriguez-stand-your-ground-texas-shooting_n_1631066.html Also, I was a bouncer in a rough neighborhood bar in Denver, Colorado when I had most of my fights. And the ones who were mouthy and trying to start fights were usually armed. Being armed transforms otherwise meek people into very macho types. Go get your license and you’ll see the difference in your own personality the first time you go out in public. Zimmerman fits the pattern of someone who was tired of being bullied. First, enrolling in MMA classes, then getting his CHL.

  2. I fail to understand, in this day and age, how an all-white jury was picked. It was mentioned on CNN that there are stats that prove that an all-white jury will rule against a black man more often that a jury that has at least one black person on it. Also, while I can see having a six-man jury for misdemeanour’s, for felony cases it would be better to have a 12 member jury. Heh, it would also be better to be presented the Bible to swear on turned over to the side with the Goodness and Mercy in it. I’ll never swear on the Old Testament side again. It goes downhill from there! Ric

  3. Ric Moore,

    I did a monte carlo simulation using Seminole county’s population breakdown from https://en.wikipedia.org/wiki/Seminole_County,_Florida

    With group percentages of 82 white, 9.5 black and 8.5 other, my calculation indicated that a pool of six taken completely at random would have no blacks about 55% of the time, and would be all-white about 8% of the time. Given I’ve seen stories indicating at least one of the jurors was not in fact white I have a hard time seeing that breakdown being at all unusual. Far more abnormal was the all-female draw.

  4. It always annoys me when prosecutors ask juries to send a message. As if my client is a billboard for their message and not a human being.

  5. But the verdict wasn’t against a black man, the defendant was white hispanic, whatever that means. If there is a “loser’ here, it’ the State of Florida, who presented the other side of the story.

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