Thoughts on the Zimmerman Trial

I did not follow the trial carefully, so I don’t feel qualified to comment on the jury verdict.  There are two legal aspects of the case, though, that I can talk about.

1.  I agree with Eugene Volokh’s point that Florida should reconsider its law allowing a six-person jury to hear felony cases.  The Supreme Court’s decision (from 40 years ago) upholding the constitutionality of criminal juries smaller than 12 in state trials falls in the category of “wrong, but settled.”   State lawmakers should still think about the fact that a larger jury will be more diverse and tend to inspire more confidence, though, of course, it increases the cost of a trial.

2.  I am uneasy when a state acquittal is followed by the threat of a federal prosecution for the same act.  This practice is constitutional because of the Supreme Court’s decision in Bartkus v. Illinois, which held that the Double Jeopardy Clause is not violated by consecutive state and federal prosecutions for the same act under the “dual sovereignty” doctrine.  There is a powerful irony in this decision.  It reflected Felix Frankfurter’s view that incorporation was mostly wrong and that the states should be able to run their criminal justice system free from federal constitutional restraints.  The Supreme Court’s liberals (Brennan, Black, Douglas, and Warren) dissented.  Yet Bartkus became a powerful weapon for liberals seeking to right wrongs perpetrated in the Jim Crow South by, in effect, overturning verdicts from all-white racist juries.  The continuing vitality of Bartkus (as opposed to other criminal procedure decisions from the 1950s) reflects the influence of the Civil Rights Movement on constitutional law, though I wonder if this decision should be revisited.

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12 Responses

  1. Shag from Brookline says:

    Regarding item 2, how frequently does federal investigation take place and how often does federal prosecution take place? Perhaps there is some study that supplies such information. The federal investigation may consider acts that are not quite identical to the jury’s acquittal, such as the state’s investigation and related acts. Query re: jury nullification? The threat of federal prosecution may be employed only occasionally. Later today I’ll search for a study. Doing away with the federal threat might inspire open jury nullification at the state level. Might that make you uneasy, Gerard?

  2. mls says:

    There is a DOJ policy on successive federal and state prosecutions. You might want to take a look at that. As I read it, there should not be a federal prosecution here unless there was some clear failure in the state prosecution, such as jury nullification, an inadequate prosecution effort, etc. But I would be interested to see how you read it.

  3. Joe says:

    The jury here had a Hispanic woman, but it is quite possible a larger jury would have had a black person on it, which could have helped inspire confidence. Would have likely reached the same result, imho, with a small increase of a chance of a hung jury.

    Frankfurter thought full incorporation for other than the First Amendment was wrong, but the principle of dual sovereignty is not based on that. The concept goes back to antebellum times and those that supported full gradual incorporation also in various cases supported it.

    It has a selective benefit to liberals. Cases rarely are tried twice and there can be (as in practice) an exception made in special circumstances when federal interests of civil rights or respect for a trial that was adequate not just for the defendant, but for the interests of society as a whole override the double jeopardy concern. The latter because true “jeopardy” was not in place at a high enough level.

    I would be surprised if the federal government re-tried this case. It is a weak case for that approach though of course it will have to examine it and do full diligence.

  4. Joe says:

    ETA: Let me edit that to say “not fully based on that”

  5. Kyle says:

    Interesting post. But was the prospect of a federal retrial really a “powerful weapon” in the Jim Crow south? For one thing, in many circumstances there was no state prosecution in the first instance.

    Furthermore, given venire rules (it’s not as if a federal case that arose in Mississippi was going to go before a jury comprised of northerners), the feds were very cautious about bringing criminal civil rights actions in the 1950s through the early-to-mid 1960s. Even so, more of the DOJ Civil Rights Section’s cases during that span blew up at the grand jury phase, than ultimately resulted in convictions after trial.

    There were exceptional cases, of course, but there weren’t as many as we’d now like to think there were.

  6. Anthony Colangelo says:

    I wrote an article a few years back on this question of double jeopardy and multiple sovereigns for those interested in the topic. It addresses the law and the institutional policy constraints on pursuing successive prosecutions.

    Anthony Colangelo

  7. Shag from Brookline says:

    mls’s lead led me to DOJManual 9-2031 “Dual and Successive Prosecution Policy (‘Petite Policy’).” If that’s it, federal prosecution may not come about based on certain tests as well as the application of discretion. I have been unable to locate any stats on the implementation of this Policy but assume that periodic DOJ reports might. I’ll continue the search. Kyle (#5) may be on the mark that there have been few prosecutions.

    I don’t know if the jurors have spoken up since their verdict. If not, the reactivating of the investigation may keep them from saying much, even though their decision seems more likely based on reasonable doubt than nullification.

    This is a hot enough summer without the aftermath reactions.

  8. mls says:

    I would imagine the jurors have much stronger reasons than the reactivating of the investigation (which they have no particular reason to care about) for remaining silent. They probably have no desire to expose themselves to public abuse, if not physical danger, that would result from speaking up.

    I note that the president said the jury verdict was entitled to “respect.” I thought this was a pretty good statement, but I am starting to wonder what he means exactly by “respect.” If the Attorney General is investigating to determine if the jury acted in a lawless or unreasonable manner, that wouldn’t seem to show a lot of respect.

  9. Actually, one juror gave an interview — in shadow — to Anderson Cooper that aired tonight. Apparently at the beginning of deliberations they were split 3 (not guilty), 2 (manslaughter), 1 (2nd degree).

  10. Shag from Brookline says:

    I understand that juror stated she might consider writing a book on the matter, although a later report suggests she may have changed her mind (perhaps for reasons suggested by mls?).

    As to mls in #8, one can “respect” the jury verdict and at the same time “respect” other laws (e.g., federal civil rights laws) that may, after investigation, apply. What is disrespectful about the DoJ investigating the matter pursuant to its policy?

    And take a peek at Tom Toles’ WaPo political cartoon today on the decision.

  11. Shag from Brookline says:

    The juror’s literary agent’s initial press release was most interesting about a book written by her and her attorney husband. Perhaps the DoJ investigation will look into how (and when) the deal came about and why it collapsed. I assume that despite jury sequestration the juror may have had some contact with her attorney husband during the trial. Of course, such contact might be protected by spousal and attorney/client privileges, but the literary agent may be fair game.

    Jurors in high profile cases sometimes cash in with book deals. But what if a juror going in decides to do so? Might a book deal’s value be determined by the outcome of the jury trial? In sequestering a jury, does a judge discuss with the jurors potential issues with gook deals?

  12. Shag from Brookline says:

    More juros have “spoken out” (4 via a written statement) with juror B-37 reacting by stating, in effect, that the FL self-defense laws limited the jury and such laws should be repealed.

    The article linked to in comment #39 of the preceding post, at pages 115-6, states:

    “To illustrate where this statute can cause problems, imagine two rival gang members cross paths on a public sidewalk where each have a right to be, they each have a right to stand their ground. Either gang member can perceive or claim to perceive a threat from the other, and acting in self-defense, use physical force against the other. Under the current statute, the person acting in self-defense does not need to prove any actual threat. That person is justified in injuring or even killing the other person. Most disturbing, the individual claiming to act in self-defense is not required to walk away even if presented with a safe method of retreat.” [Citations omitted.]

    Consider that both survive this event. It would seem that each could claim the benefits of FL self-defense statutes, including immunity provisions.