“Unnecessarily Handicapped”: The Zimmerman Trial Shows It’s Time To Reconsider The Six-Member Jury
Small juries, like all small samples, carry big costs. Doesn’t a jury in a serious criminal case have 12 members? Not in Florida.
Florida is one of only two states where a jury as small as six can decide a serious felony case. It is the only state where a murder case goes to a six-member jury. And second-degree murder in Florida is serious indeed, carrying a sentence of 25 years to life. The circumstances of the shooting that killed an unarmed teenager, moreover, are sharply disputed, implicating the use of guns, the limits of self-defense and race relations. As we often do, we have given the jury in this case a challenging task.
Why should we care if the jury has six or 12 members? The Sixth Amendment guarantees the right to trial by jury, but it does not specify jury size. When the Sixth Amendment was written, was the number simply assumed? James Madison thought it was: He thought the number was 12.
For almost 200 years, the U.S. Supreme Court consistently accepted this view, defining “jury” to mean the 12-member jury. For instance, in 1930, the court said that “it is not open to question” whether juries may consist of fewer than 12.
In 1970, however, the court reversed its position in Williams v. Florida and found no constitutional objection to Florida’s six-member jury. The court labeled the general use of 12 throughout history as an “historical accident.” The court’s characterization of the historical record has been widely disputed, but even more egregiously, the court joined its new historical assessment with a strikingly inaccurate behavioral claim.
It proclaimed that the behavior of six- and 12-member juries were “functionally” equivalent, and therefore the six-member jury was unobjectionable. In fact, the overwhelming weight of empirical evidence shows that juries of six do not perform as well as juries of 12.
How do six- and 12-member juries differ? Two differences are particularly relevant in the trial of George Zimmerman. First, numerous studies of all kinds show that cutting jury size in half decreases the likelihood that the jury will reflect a representative sample of the community. The lone non-white juror on the George Zimmerman jury is just one instance of that effect. The all-female jury is another.
The gender make-up of the jury cannot be explained merely by the majority female jury pool or attorney use of challenges. A total of 10 jurors was selected, the jury of six and four alternates. Two of the alternates were male. A larger jury that included the additional four would not have been homogeneous on gender.
Ethnicity and gender are not the only dimensions of difference shortchanged by a smaller jury.
Any background or set of beliefs or life experiences that may affect reactions to the evidence is substantially less likely to be represented on a six-member jury than on a 12-member jury. Simply due to chance, unrepresentativeness is more likely when only six jurors are needed to constitute the jury. That loss is particularly troubling when the jurors are evaluating crucial and disputed evidence, like the identity of the voice in the background on the 911 tape in the Zimmerman case.
Second, jury research finds that larger juries spend more time deliberating and their discussions of testimony are more thorough than smaller juries. More vigorous debate reflects the expanded pool of abilities and perspectives provided by the larger jury. Similarly, the ability of dissenters to resist majority pressure is promoted by the increased likelihood that a dissenter whose position is not simply idiosyncratic will have one or more other jurors who share that view. The dissenters might not carry the day, but their views will be more seriously considered.
There is no evidence that jury size is associated with more pro-prosecution or more pro-defense verdicts. Thus, the key here is not that the six-member jury systematically advantages one side or the other. Rather, the point is that a serious charge demands serious procedural consideration.
Even Florida, like every other state with the death penalty, uses a 12-member jury for capital offenses. Second-degree murder does not carry the death penalty in Florida, but it does call for thorough deliberation from a variety of perspectives. The six-member jury is unnecessarily handicapped.
What should be done? Ample empirical evidence on the jury demonstrates the need to reverse course. Perhaps in the wake of the Zimmerman case, Florida will reconsider its unique position on jury size. Even better: In recent years, the Supreme Court has turned down several opportunities to revisit the question of jury size. Perhaps it should accept the next one.
By: Seidman Diamond, The Miami Herald, July 15, 2013
“Explaining Away The Violence”: Is The Hoodie The New Miniskirt?
Is the hoodie the new miniskirt? Of all the politically – and emotionally – loaded details of the George Zimmerman case, the matter of Trayvon Martin’s hoodie may be the most telling.
Martin, after all, was not just a black teenager walking in a gated community where he did not live. He was wearing a hoodie – which, Zimmerman’s defenders note, is somehow akin to carrying a machete in terms of sheer provocation.
Fox’s Geraldo Rivera apparently thinks so, noting that “if you dress like a thug, people are going to treat you like a thug.” And singer Ted Nugent, who is prone to provocative behavior and comments himself, called Martin a “Skittles hoodie boy,” referring also to Martin’s recent candy purchase.
It sounds bizarre to those of us who have worn hoodies (when you grow up in Buffalo, a hooded sweatshirt is just another necessary element to the three layer rule of keeping warm and dry during the winter, and also the fall and spring). When I was a kid, the style was to wear a blue hooded sweatshirt underneath an open denim jacket (how cool were we?!!).
And before the whole Martin–Zimmerman case, the most prominent hoodie–wearer, at least to football fans, was New England Patriots coach Bill Belichick. He’s irritating, to be sure, and has even acquired the nickname “hoodie,” but no one has suggested he’s a symbol of violence or crime because of his clothing.
But women get it, because we have been told from an early age that what we wear could get us assaulted – and that if we are assaulted, people will think it’s our fault because of what we were wearing. If a female is walking down the street in a miniskirt (or whatever someone else might find provocative) and is sexually assaulted, part of the equation is – what was she wearing? And why was she wearing that? What other possible reason could she have for wearing a miniskirt other than that she was inviting rape or sexual assault? The old analogy still holds: would a defense attorney rip apart a male victim of a mugging who had been walking down a dark street wearing a natty suit and expensive watch, practically asking to be robbed?
The underlying premise – that wearing revealing clothing or a hoodie automatically makes one suspect, and therefore complicit in one’s own attack – is troubling. What’s even more offensive is the idea that some Taliban–type control group gets to decide how certain groups of people should dress in order to stay safe. Sometimes a hoodie is just a hoodie.
By: Susan Milligan, U. S. News and World Report, July 17, 2013
“Wake The Hell Up”: Did George Zimmerman Get Away With Murder?
Four words of advice for African-Americans in the wake of George Zimmerman’s acquittal:
Wake the hell up.
The Sunday after Zimmerman went free was a day of protest for many of us. From Biscayne Boulevard in Miami to Leimert Park in Los Angeles, to the Daley Center in Chicago to Times Square in New York City, African-Americans — and others who believe in racial justice — carried out angry, but mostly peaceful, demonstrations.
Good. This is as it should have been.
But if that’s the end, if you just get it out of your system, then move ahead with business as usual, then all you did Sunday was waste your time. You might as well have stayed home.
We are living in a perilous era for African-American freedom. The parallels to other eras have become too stark to ignore.
Every period of African-American advance has always been met by a crushing period of pushback, the crafting of laws and the use of violence with the intent of eroding the new freedoms. Look it up:
The 13th Amendment ended slavery. So the white South created a convict leasing system that was actually harsher.
The 14th Amendment guaranteed citizenship. So the white South rendered that citizenship meaningless with the imposition of Jim Crow laws.
The 15th Amendment gave us the right to vote; it was taken away by the so-called “grandfather clause.” The Supreme Court struck that down, so the white South relied on literacy tests and poll taxes to snatch our ballots all over again.
Our history is a litany: two steps forward, one step back.
The civil rights movement was the greatest step forward since emancipation. So we ought not be surprised to see voting rights eroded again, the Civil Rights Act attacked, the so-called “war on drugs” used for the mass incarceration of black men. Or to see the killing of an unarmed child deliver a message as old as the Constitution itself: Black life is worth less.
We are in another period of pushback. And worse, we don’t even seem to know.
It feels as if we have taken the great advances of the last half-century — the protective laws, the rise of the black middle class, the winning of the ballot, the flowering of options once considered unthinkable — for granted. It feels as if we have come to regard progress as somehow inevitable, preordained, carved in stone and irrevocable as a birthright.
So yes, we need to wake the hell up.
While we were celebrating, others were calculating.
While we were writing nasty rap lyrics, they were writing senators.
While we were organizing Obama victory parties, they were organizing Tea Parties.
While we were buying DVDs, they were buying candidates.
While we were sending texts, they were building propaganda machinery.
While we were resting on the past, they were seizing the future.
Granted, the preceding casts a wide net. Yes, there are many of us, African-Americans and others, who don’t need the admonition, who are already awake, who have always been awake. More power to them.
But there are also many of us still sleeping. So let Trayvon Martin’s death and the acquittal of his killer be a wake-up call. Let it be a spur to stop reacting and start pro-acting. Let it be a goad to become better informed. Let it be a reminder to organize. Let it be a reason to send a check to the NAACP. Let it be an incentive to join the social justice ministry at church. Let it be cause to write your congressperson. Let it be an impetus to teach and nurture your kids.
Most of all, let it be an alarm clock, ringing in the darkness of a new morning, calling conscience to account. Do not waste this moment. The time for sleeping is done.
By: Leonard Pitts, Jr., The National Memo, July 17, 2013
“A New Low Even For Lawyers”: Defense Attorney Don West Gives A Despicable Reaction To The Zimmerman Verdict
It was clear from the start that whatever happened in the George Zimmerman case would produce a strong reaction – especially if, as happened, Zimmerman was found not guilty. And one would hope that in the midst of all of the heavy emotion and tragedy of the case, a dialogue would ensue over race relations, over the vastly different experiences of adult white men and black teenagers wearing hoodies, and over what makes us afraid and how we’re allowed to react to that fear. There have been some insightful and impressively soothing statements and behavior from people – President Obama’s pitch-perfect statement, for example, and Trayvon Martin’s own parents spending the day after the verdict in church, urging peace and calm.
The word “despicable” is not part of that dialogue – especially when it is uttered not only by an attorney arguing the case, but by one of the defense attorneys.
Lawyer Don West – who distinguished himself early on by opening his defense arguments with a wildly inappropriate knock-knock joke – told the Orlando Sun Sentinel after the verdict:
I think the prosecution of George Zimmerman was despicable. I’m glad this jury kept this tragedy from being a travesty.
This is the sort of talk one expects to find on Twitter or on some anonymous comments section on a newspaper website. This is not the sort of remark to be made by someone who is ostensibly committed to the criminal justice system.
Trayvon Martin was 17 years old, unarmed, and on his way back home after picking up candy and iced tea at the market. Now he is dead, and the person who shot him is on record having spotted Martin, declared him as a kid up to no good, gotten out of his car and shot him dead. The facts of what happened are somewhat murky, in part because Zimmerman gave conflicting accounts, and in part because the only other witness to the episode is in a grave.
Even if, as the jury found, Zimmerman rightly felt in danger of death or grievous bodily harm, Martin’s death was a horrible tragedy. Florida law gives wide latitude to people claiming self-defense, and the jury was required to listen to the facts and decide whether the prosecution had proven, without a reasonable doubt, that Zimmerman did not feel in danger. That’s a hard standard to reach, so as distressing as the not guilty verdict is to many people, it’s an understandable conclusion.
But the idea that there was something offensive about even prosecuting Zimmerman, about putting him through the stress of a trial after taking the life of an unarmed boy, is stunning. West’s self-righteous comment suggests that Zimmerman was the victim here, and that his insistence – despite his behavior and conflicting statements – that he killed someone only because there was no other way to protect himself is not just disrespectful to the dead boy. It’s disrespectful to the criminal justice system. It is, arguably, despicable.
By: Susan Milligan, U. S. News and World Report, July 15, 2013
“Legal System Doesn’t Always Deliver Justice”: George Zimmerman Found Not Guilty, But Florida Sure Is
It feels wrong, this verdict of not guilty for George Zimmerman. It feels wrong to say that Zimmerman is guilty of no crime. If he hadn’t approached 17-year-old Trayvon Martin, if he hadn’t pulled his gun, Martin would be alive.
But that doesn’t mean Zimmerman was guilty of murder, not in the state of Florida. It doesn’t even mean he was guilty of manslaughter, though that was the middle ground I hoped the jury would find its way toward. (And in fact, the jurors asked for a clarification on the manslaughter charge during its 16½ hours of deliberation.) Here’s the problem: To convict Zimmerman of murder, the six women of the jury had to find that he killed Martin out of ill will, hatred, or spite, or with a depraved mind. The law didn’t account Zimmerman’s fear or feeling of being physically threatened.
But the physical evidence suggested that in the heat of the moment, Zimmerman could have felt both of those things. A forensics expert testified that from the angle of his wounds, it appeared that Martin was on top of Zimmerman when he was shot. The neighbor who came closest to being an eyewitness—there were none—said it looked to him like he saw a fight in which the person on top, straddling the person below, was wearing a red or a light-colored shirt. That, too, suggested Martin was on top. Zimmerman did have injuries: lacerations to the back of his head from the pavement and a swollen bloody nose.
It’s true that there was also evidence on the other side: None of Zimmerman’s DNA was found under Martin’s fingernails. None of Martin’s DNA was found on the gun. These facts contradict key aspects of the account Zimmerman gave police. Why believe him about the rest of his account? And even if you do give him the benefit of that doubt, why did Zimmerman feel so very threatened? Why did he pull his gun and shoot to kill?
I don’t know. I don’t think we ever will. Zimmerman didn’t testify; he was never cross-examined. “Zimmerman the man may remain as much an enigma as the events of the night in question,” Jelani Cobb wrote in the New Yorker earlier this week. And all of this focus on the moment of the shooting telescopes this story in a way that feels misleading. It leaves out Zimmerman’s history of calling the cops on black people and his decision that night to follow Martin. It leaves out his excruciatingly terrible, patently racist judgment.
But that doesn’t mean the jury’s verdict was racist. In Florida, a person “who is not engaged in an unlawful activity and who is attacked” has no duty to retreat. He or she has the right to “meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself.” The jury could have faulted Zimmerman for starting the altercation with Martin and still believed him not guilty of murder, or even of manslaughter, which in Florida is a killing that has no legal justification. If the jury believed that once the physical fight began, Zimmerman reasonably feared he would suffer a grave bodily injury, then he gets off for self-defense.
Maybe that is the wrong rule. Maybe people like George Zimmerman should be held responsible for provoking the fight that they then fear they’ll lose. And maybe cuts to the back of the head and a bloody nose aren’t enough to show reasonable fear of grave bodily harm. After all, as Adam Weinstein points out, the lesson right now for Floridians is this: “in any altercation, however minor, the easiest way to avoid criminal liability is to kill the counterparty.” But you can see the box the jurors might have felt they were in. Even if they didn’t like George Zimmerman—even if they believed only part of what he told the police—they didn’t have a charge under Florida law that was a clear fit for what he did that night.
This is what Slate’s Justin Peters meant when he reminded us earlier this week that the state has to prove its case beyond a reasonable doubt. “That hasn’t happened,” he wrote. “And if the prosecution can’t prove its case, then Zimmerman should walk.” This is our legal system. It doesn’t always deliver justice, and this case surely points to several ways in which Florida’s version of law and police work should change. It may demonstrate that Zimmerman should face federal civil rights charges.
But what matters most is that Zimmerman was charged with Martin’s killing, even if he wasn’t convicted. The state was late to indict him, yes, and acted only after a sorry spell of botched police work that may have affected the evidence presented at trial. But Florida did try to hold George Zimmerman liable for Trayvon Martin’s death. Martin’s family and all his supporters get most of the credit. His father, Tracy Martin, wrote on Twitter tonight, “God blessed Me & Sybrina with Tray and even in his death I know my baby proud of the FIGHT we along with all of you put up for him GOD BLESS.” Yes, they did fight, and their battle meant something—meant a great deal—to so many parents of black boys in hoodies, and to the rest of the country, too. Tracy Martin is right to stress that fight for justice at this sorrowful, painful moment. No ill-conceived law, and no verdict, can take that away.
By: Emily Bazelon, Slate, July 14, 2013
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