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July 14, 2013

Though he was found not guilty by the jury, are sentencing stories in the Zimmerman prosecution and verdict?

The question in the title of my post is my effort to provide a (final?) place for discussion of the high-profile state acquittal in Florida which a jury handed down late last night.  I suspect lots of folks are eager to talk about the substance of the prosecution and verdict, but I want to stress (and praise) the procedures in this post.  

I find quite notable and important the seemingly wide-spread acceptance by so many of the jury-based decision-making process and the use of a beyond a reasonable doubt standard of proof at Zimmerman's criminal trial.  And, as regular readers might guess, I wish to tie this reality back to my perception of the profound and enduring wisdom to be found in the Apprendi and Blakely line of cases (as for the Booker remedy, er... not so much).

Though perhaps we will see some future criticisms of the trial procedures in the Zimmerman case, my observation of early media and public reactions suggests a general acceptance of the process even among those who might profoundly disapprove of the outcome.  Indeed, I will be quite surprised if anyone — even those most bothered by the jury acquittal here such as the Martin family — will respond to the acquittal outcome by arguing that the result shows we should have professional judges rather than lay jurors resolving these kinds of cases or by advocating the use of a lesser proof standard than guilt beyond a reasonable doubt for criminal trials.  I surmise that this reality highlights just how deeply all Americans believe adjudication by lay jurors using a high standard or proof is fundamental to a fair and  criminal justice system.

And yet in sentencing in hundreds of courtrooms nationwide every day, once a guilty verdict has be entered by plea or conviction on any count, we still have what Judge Gerry Lynch once astutely called "our administrative system of criminal justice."  A lone state employee in the form of a judge uses informal and often hurried and cursory procedures to decide whether a convicted defendant will get a lenient of harsh sentence.  And the underlying facts in the Graham case (which made it to the Supreme Court for other issues) showed starkly how some judicial bureaucrats may often respond much too leniently at first and then much too harshly thereafter when administrating sentencing justice.

I do not mean this post to be a formal pitch for jury sentencing in all cases or an effort to assail the challenging and couragous decisions that federal and state sentencing judges must make every day.  Rather, I just want to highlight my belief that the apparent acceptance of the Zimmerman verdict even by those who dislike the outcome is a sign of the procedural wisdom of the Constitution's embrace of a unique and uniquely valuable set of procedures — procedures that cases like Apprendi and Blakely (and now Southern Union and Allenye) wisely seek to extend to even more and more criminal justice adjudications.

Prior posts on Zimmerman prosecution:

July 14, 2013 at 12:11 PM | Permalink


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Doug, I'm not sure I agree that anything follows for the jury vs the judge, although i'm open to that (i suspect there's an endogeneity problem). But I do agree that generally it's an abomination that sentencing facts are not proven BRD, regardless of judge or jury as decision-maker. That's the as yet unemphasized significance of the Apprendi line: the co-equal significance of BRD.

Posted by: Dan Markel | Jul 14, 2013 12:26:35 PM

Stunning. Lawyer refusal to disclose the total inadequacy of the criminal law.

1) Beyond a reasonable doubt means around 80% certainty. Perhaps a coincidence, but there is one exoneration by DNA evidence for every 5 executions. The 3000 people on death row have not been reviewed, but the 20% ratio is a rough estimate of the false conviction rate. Imagine a false positive error of 20% in any other enterprise, car repair, surgery, accounting. The incompetent would lose the license and be prosecuted. The tort immunity of the judge, the jury, and prosecutor are an abomination, both unfair, and precluding improvements in accuracy, since there is no incentive.

2) The jury represents the wisdom of the crowd effect, a major advance in the Medieval era. The facts should be reviewed, then there should be one secret vote. After that vote, the verdict represents the view of the biggest bully, and the rest that just want to go home. Only one vote should be allowed, since it is the only valid one.

3) The judge is as amateurish as the jury pool. There is nothing in law school or any law practice that prepares a person for judging. Lawyers should be banned from all benches, since their indoctrination makes them mental cripples, unfit for the very difficult job of judging. Mature people from other fields should attend judge school for 2 years, then apprentice to working judges for a year, then pass a licensing exam. Appeals of criminal convictions should be done by experienced investigators. Innocence should be the sole basis of any appeal.

4) BRD standard for sentencing decisions is unacceptable if incarceration is for incapacitation and public safety. Looking past the Harvard gibberish of Prof. Markel, he wants to impose his personal religious views on the nation in the form of retribution, in which case, the facts should be BRD. However, retribution is from a religion, one that had people living like animals in the Middle East with their culture of endless vendettas, wiping out the defeated, and the crushing of all striving. If you want to live like Iraqi village people, follow their book, the Bible. If you want public safety, then incapacitate based on past behavior, as in 123D. You may not meet BRD in the list of prior behavior. But it does not matter because of the large count of prior crimes.

Posted by: Supremacy Claus | Jul 14, 2013 1:19:56 PM

I criticized the defense lawyers for allowing a jury of 6 females. I said, they would decide the verdict on the basis of the cuteness of Trayvon Martin. I was wrong about these ladies.

Posted by: Supremacy Claus | Jul 14, 2013 1:30:08 PM

Since HLN and Nancy Grace are all for stiff sentencing from accusation through trial, there is some balance now with Frank Taaffe tongue slapping Grace around because he is not afraid of her banning him from her show. Everyone else kisses her plump ass. At last someone has the persistence to keep at her and doesn't cower when she scolds. He may have to get good and drunk every night to wash her voice out of his ears, but he goes back at it.


Speaking of our justice system, Grace would if she could demolish it. See her Objection! for a review of her rants. I was seriously woried once but at last there is some serious backlash AGAINST (to quote Mr. Bill) the very scary police state that came very close to inculcation in this county. We still have to be vigilant but can relax now just a little.

Posted by: George | Jul 14, 2013 9:58:49 PM

In this country, but county, every county, too.

Posted by: George | Jul 15, 2013 2:24:18 AM

To me this case turned entirely on two points of law: 1. where Florida law laid the burden of proof to establish self-defense (the prosecution by beyond a reasonable doubt) and 2. the lack of a provocation or culpability in creating the dangerous situation element in the state's self-defense statute.

This would have been a very close case in Ohio - where you're required to raise and prove criminal defenses by a preponderance of the evidence and you cannot be at fault in creating the dangerous situation - but without any good witnesses it was easy in Florida. The trial also would have been more intriguing in Ohio because I assume Mr. Zimmerman would have needed to testify to meet that burden.

Sure sounds like it would make for a good 1L exam question.

Posted by: J.T. | Jul 15, 2013 11:26:36 AM

I agree with JT, especially his first paragraph. Under Florida law, the state bears the burden of proving the absence of self-defense BRD. On the evidence, particularly the photos of Zimmerman with a bloody face and head, and the forensic testimony showing the Martin was on top, the state's burden was insuperable.

I personally think Zimmerman went looking for trouble and found it. But on the law, the verdict was clearly correct.

Posted by: Bill Otis | Jul 15, 2013 11:58:05 AM

I appreciate JT's comment and from the beginning thought there was a good chance that he would be found not guilty, reasonably so given the law.

The ultimate problem for those upset with the verdict should be the law itself, including in places where carry laws make it easier to have a gun & where the culture encourages at times a sense of recklessness (Dave Barry made a living talking about Florida on that front).

It is possible the evidence was "insuperable," but not in any way fully examining it, I will just say that I think the jury did its duty fair enough from my vantage point.

Posted by: Joe | Jul 15, 2013 12:08:51 PM

Considering I had my car damaged (broken windshield by flying bottle) on the Santa Monica Freeway yesterday, which insurance will gladly cover after I cough up a $500 deductible, I probably have more "right" to opinion than most. But in sticking with case law, I believe that Zimmerman would have prevailed in any fair court in this country, with the emphasis on "fair." Even if required to testify to prove self-defense in a jurisdiction requiring such (as in Ohio), there was a preponderance of circumstantial evidence to verify his interrogatory testimony and even his ill-advised public appearance on Hannity.

In reality, this case should never have been brought forth. It is a direct result of the bi-polar reality of our nation's racism problem, which will never be alleviated until either the Tea Party beats the RINO-progressive alliance; if we continue to devolve into socialism, than the racist divide will, by necessity, continue to grow, just like the registries for sex offenders.

Posted by: Eric Knight | Jul 15, 2013 1:32:00 PM

Colleagues, greetings.

I agree that under Florida law Zimmerman was properly acquitted. However, I am troubled with the idea that a man can walk around packing a firearm, and acting as the community enforcer, shoot an unarmed black man who puts up a fight even when the armed is getting badly beaten. Couldn't the armed guy on the bottom say: "o.k. I give up--uncle--i'm sorry dude--." Isn't that what we often do when two guys fight, and one is getting beaten? Instead he shoots the guy on top. What am I missing here? What is the message Florida law is sending to the community? From another perspective, in the gunfight at the o.k. corral, everyone was armed and they knew a gunfight was going to take place. What am I missing here? Help!!!

Posted by: Michael R. Levine | Jul 15, 2013 2:00:32 PM

Michael R. Levine - I agree with 100%...What the hell is going on...You don't go walking around with a loaded gun.. It gives a person a tremendous power that they wouldn't have any other way.. Without it, (now knowing that Zimmermans physicality rating is .5 out of 10)
he wouldn't have messed with a youngster at all..

Bill Otis said it simply and spot on as well. Bills reply below..
I personally think Zimmerman went looking for trouble and found it. But on the law, the verdict was clearly correct.

Next agaenda item: Are the Feds gonna prosecute him....A death occured and there is a very strong push to get this reworked??
May even be an uprising is this goes unchecked, who knows...

Posted by: MidWest Guy | Jul 15, 2013 2:12:30 PM

Not having followed it closely, I thought this was one of those cases that would turn on the jury evaluation of the credibility of witnesses. You had several different sets of witnesses: 1) experts paid for by both sides; 2) family and friends of Martin and Zimmerman who saw/heard parts of the incident; 3) people not closely associated with either Martin or Zimmerman who saw/heard parts of the incident. The prosecutions case seemed to rest on the jury largely disregarding the witnesses with some reason to be partial toward Zimmerman while giving great weight to the credibility of the "neutral" witnesses and the pro-Martin witnesses.

As best as I have heard, none of the six jurors have rushed out to talk to the media (that may change by this evening's talk shows), but until they talk, nobody knows how they viewed the evidence or the instructions. (Having talked with enough jurors over the years, how the juror view instructions is often quite different than how lawyers and appellate courts view them.) Without that information, it is hard to comment (beyond the usual rants) on exactly what made a difference in this case.

To MidWest, I can't really see a basis for a federal prosecution without really stretching the "under color of law" element of a federal civil rights charge. What is more likely is a civil case in which the burden of proof is only preponderance, but that might depend on what if anything the jurors say. If the jurors say that they absolutely believed that Zimmerman was acting in self-defense, then the family might give up on a civil case. If the jurors say, we thought it was not self-defense but were not sure, the civil case is very likely.

Posted by: tmm | Jul 15, 2013 2:31:43 PM

Obviously the Criminal Justice System is not perfect. Zimmerman's conduct was both wrong and bad, and he is dangerous. The System did not pick up these problems.

Posted by: Tom McGee | Jul 15, 2013 2:49:18 PM

Well, I'm pretty impressed with everyones comments.. You have restored some faith in me on Lawyers. (Legal Beagles) None of my buddies have views like you guys do.. Mine are pretty much the same as the posts here...Of coarse you guys say more with less words...I was beginning to think maybe I was out in left field or something..

Personally, if you are going cary a concealed weapon.. You need to be even more careful than those that don't have a gun.. You have the responsibility to you and who encounter..If you get ticked at someone its far easier to pull it and fire than if its home locked up in the safe, probably where it should be..So you stay away that part of town. You don't give the boys the finger back, when driving down the freeway...etc...If you have it, you might just have to use it.. Then you find yourself in a situation like Zimmerman...And a young boy is gone....Not good..He couldn't of waited for the police..He might seem suspicious. But without a gun Zimmerman would not of pursued...It doesn't matter if hes the designated watchdog for the complex or not.. Hes not an Officer...

So has anyone heard this story. Travon was there to buy guns? I thought he was staying the complex with his dads fiance and went out to get pop and candy..

So big question....Was there any evidence of candy or a pop container found nearby Travon... Was he on his way to the store or coming back from? Details, details...Did this ever come up, had to, right..

Posted by: MidWest Guy | Jul 15, 2013 4:25:58 PM

Michael Levine and others point out one of the downsides to the concealed-carry laws. This case illustrates the problem in spades. Most of us normally walk away from a threatening situation or an insult, or rude gesture. But when packing, we will not. Instead, we feel invincible-- much more ready to escalate the confrontation instead of defusing it. Hence, the inevitable tragedy.

Posted by: thou eermtota | Jul 15, 2013 6:30:25 PM

Let's correct things. This is a legal forum and opinions cannot be just put out willy nilly.

Keep in mind that Zimmerman did NOT use his gun UNTIL he knew it was his ONLY option to SAVE HIS LIFE. In fact, I am actually surprised he didn't use his gun BEFORE Martin jumped him, but then again, the evidence pointed to the fact that Martin attacked HIM.

Please. Refer to court transcripts and testimony. Leave specualation to the sensationalist media and race hustlers.

Posted by: Eric Knight | Jul 15, 2013 7:05:04 PM

Eric Knight writes: "I'm surprised he didn't use his gun before Martin jumped him" Of course, in a "gated" community we should we all should just shoot young, black men on sight.

Posted by: onlooker | Jul 15, 2013 7:45:40 PM

Eric Knight writes: "I'm surprised he didn't use his gun before Martin jumped him" Of course, in a "gated" community we should we all should just shoot young, black men on sight.

Your response is, sadly, the exact phenomenon I've referred to in this affair. You project without even thinking.

Any REASONABLE person would interpret my meanin' to obviously using the weapon to PREVENT an IMMINANT attack, NOT to chase down and shoot a "young black man on site." You are not only being disingenuous but are the precise reason why this obviously open and shut investigated case should not have been opened in the first place.

And to wit: I've maintained my original post to restricting my remarks to the FACTS...that is, HARD EVIDENCE... presented in the case. For me to actually have to justify it on this blog is incredulously farcical.

Frankly, I'm far more interested in the upcoming Zimmerman suit against the media, as that will be a test of an (in my opinion) attempt to manipulate the news to create the Roman Gladiator arena in place of true, court justice.

Posted by: Eric Knight | Jul 15, 2013 8:58:16 PM

There are countries with low rates of crimes, some are very rich, some are very poor. What they share is public self help. There are states in the US with low crime rates. Same trend. Commit a crime, hear from the neighbors rather than from the police.

This case is about deterring self help. No matter the verdict, it has worked for the lawyer, very well. The message has gone out. Get involved, we ruin your life.

Posted by: Supremacy Claus | Jul 16, 2013 4:13:16 AM

what exactly was trayvon martin supposed to do? trayvon didn't have a right to defend himself from a dude stalking him down? who among us has a right to follow someone and hold them hostage until you are satisfied that person isn't some "thug." and then you have the right to shoot them dead if the person being held hostage fights back instead of surrendering? it's beyond comprehension how messed up that is.

Posted by: anonymous | Jul 16, 2013 11:28:18 AM

the evidence showed that trayvon martin had a bag of skittles on him and can of arizona iced tea. he had just gone to a convenience store and was walking back to his dad's fiancees house. i guess if any of you guys were walking around you'd be fine with some big guy following you in the dark. you'd just smile, hold hands, and thank him for being so diligent in protecting his neighborhood.

Posted by: anonymous | Jul 16, 2013 11:35:41 AM

no anon i wouldn't be. i'd very quicky turn on the individual and ask what their problem is. If i didn't like the answer. They would be informed i would be crossing the street. IF they followed me again i would consider it a threat and deal with them accordingly.

Posted by: rodsmith | Jul 16, 2013 12:01:28 PM

anonymous stated: "what exactly was trayvon martin supposed to do?"

It is pretty simple. Keep walking and call 911 to tell them that some creepy guy was stalking him.

You stated: "trayvon didn't have a right to defend himself from a dude stalking him down?"

No, you do not have a right to beat the crap out of a guy who is following you.

You stated: "who among us has a right to follow someone and hold them hostage until you are satisfied that person isn't some "thug.""

WHO in the world did that? GZ did not detain TM in any manner (that we know of). All of the evidence points to GZ following TM and then TM attacking GZ. There was no one taken "hostage."

You stated: "and then you have the right to shoot them dead if the person being held hostage fights back instead of surrendering?"

TM did not "fight back", he just "fought." I love the double standard here. GZ thought something was amiss and the conventional thinking is that he should have reported it and gone the other way. But TM thought something was amiss and it y'all argue that it was OK to go beat the crap of the guy? Yikes.

You stated: "the evidence showed that trayvon martin had a bag of skittles on him and can of arizona iced tea. he had just gone to a convenience store and was walking back to his dad's fiancees house."


You stated: " i guess if any of you guys were walking around you'd be fine with some big guy following you in the dark."

1) GZ is a "little guy" compared to over 6 foot, 200lb, MMA trained TM.

2) No, I would not be "fine with it." I would call 911, explain what was happening, and get myself to my destination ASAP instead of circling back around to "ground and pound" the guy into the pavement.

You remind me of an inmate teacher aid that worked for me when I taught in the prison system. He told me why he was in (murder). His brother in law came to his house and was screaming at his sister through the front door, saying nasty things about her. He did what he said was the only thing he could do, open the door and shoot the guy in the chest. He proceeded to tell me that I would have done the same thing.

Well, no.

Posted by: TarlsQtr1 | Jul 16, 2013 12:50:53 PM

if you had a daughter who was being followed by a someone who would then not let her walk way from him, she would not have the right to fight for her freedom? if someone takes you hostage and will not let you go free, you are suppose to wait until the police show up and tell the person holding you hostage to let you go? you don't have the right to fight to free yourself? but you do have the right to shoot someone dead after you follow them and take them hostage because they were fighting to free themselves. noted.

the guy who got shot and is dead was the guy trying to free himself from a dude stalking him with a gun and would not let him go free. and in your mind it's the guy being stalked who was at fault. this is bananas.

Posted by: anonymous | Jul 16, 2013 2:15:54 PM

good to know, that a teenager being followed by a dude in the dark has no right to feel like his life is being threatened. just the guy with the gun doing the stalking. nice.

Posted by: anonymous | Jul 16, 2013 2:24:03 PM

and your example is pretty wacked. tm didn't shoot anyone in the chest. he's the one who got shot. and is dead. after being stalked.

Posted by: anonymous | Jul 16, 2013 2:25:42 PM


You are delirious.

Please provide ANY evidence that TM was detained or taken "hostage" by GZ.

ALL of the evidence points to GZ following Martin, Martin getting angry, and then Martin physically attacking Zimmerman.

TM chose to go after GZ and beat him up. It was not illegal for GZ to follow TM. It was illegal for TM to slam GZ's head into concrete.

Posted by: TarlsQtr1 | Jul 16, 2013 3:20:14 PM

sorry tarls but I have to give them this one. once you have been told to get away from someone and you don't whatever happens is on you!

as for what evidence we have. so far most of it comes from the survivor! the dead tell no tells!

as for his so-called self defense. sorry but once you start it. you don't then get to scream HELP once the one you start it with begins to beat your ass! sorry in my book once he got out of that truck to follow him. he gave up any right to self defense.

Posted by: rodsmith | Jul 16, 2013 8:34:56 PM

Back in the day when I was a baby lawyer, my very first jury trial was as second seat in a first degree murder case. My client had shot and killed an unarmed relative with a shotgun during an argument, and then claimed self-defense.

The most memorable thing about that trial was the prosecutor during closing argument swaggering around the courtroom with the shotgun saying "look at me, I'm afraid."

Posted by: Fred | Jul 16, 2013 10:37:31 PM


The court in Florida does not go by "your book."

Posted by: Tarlsqtr1 | Jul 17, 2013 12:27:30 AM

LOL I never said it did tarls! You know I think most politicians are fucktards of the first order! the fact that they can even read a book is debatable. I know they can't read documents considering how they have spent most of the last 60-70 years pretty much doing the exact opposite of what the Constitution requires!

Posted by: rodsmith | Jul 18, 2013 3:57:22 AM

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