So what do you make of juror B37 in the Zimmerman case? She was released from jury duty late Saturday night. By Monday morning, she had a book deal in place, and interviews scheduled with Anderson Cooper. Even her fellow jurors are now distancing themselves from her. What are the odds she didn’t have fame and fortune in mind as the jury struggled to reach unanimity in its verdict?
And what of the testimony of the lead investigator for the Sanford Police Department, Christopher Serino? Did he really tell the jury he found Zimmerman credible, a truthful witness? Do you suppose he was engaged in a little sabotage of the state’s case? His department was, after all, roundly criticized for foot-dragging in its investigation. Is he still smarting because the Sanford police chief was fired over the department’s handling of the case?
In many criminal cases, a trial marks the mid-way point of the proceedings. That’s because the government wins most trials. A defendant convicted at trial can then appeal, claiming that the trial was unfair. If the appeal is lost, then a defendant can attack the performance of his lawyers in what are known as collateral attacks, or habeas corpus petitions.
But when the government loses, the proceedings end. The state cannot take an appeal from an acquittal. When a jury votes not guilty, for whatever the reason, its voice is final. There will, therefore, be no appeal of the George Zimmerman verdict.
This asymmetry between the post-conviction rights of the state and the accused serves the interests of justice, we say. We want jury verdicts to be a sober expression of the community. A not guilty vote ends with a jury of one’s peers asserting the state did not prove its case.
Lawyers and judges console themselves with sweet fictions about how juries operate. We tell ourselves that a properly instructed jury is presumed to follow the law. In other words, if you tell jurors what the law requires, they will follow the instructions.
But we know better. After a conviction, appellate lawyers scour the record to look for sources of error that undermined a fair trial; these errors are the lawyerly equivalent of infections in an operating room. Common sources of error are juror misconduct and improperly admitted or excluded evidence.
So what of Serino’s comments about Zimmerman’s truthfulness?
It is black letter law — meaning any idiot of a lawyer can look it up and read it — that witnesses cannot comment on the truthfulness of other witnesses. Forget what you see on television. In a courtroom, judges police evidence to make sure that no one invades the jury’s turf: jurors, and jurors alone, are to decide the truthfulness of witnesses. In lawspeak, that is the province of the jury.
Judge Debra Nelson told the jury to disregard Serino’s comment. But that only highlighted the error. Lawyers call this the “pink elephant” problem. “Ladies of the jury, I am instructing you to ignore testimony about a pink elephant. There are no pink elephants. I instruct you not to consider pink elephants.”
It’s pretty hard to stop thinking about pink pachyderms after a speech like that.
Had Zimmerman been convicted after testimony from a witness saying he thought Zimmerman was a liar, appellate lawyers would be on that like white on rice.
Serino is an experienced witness. He knew what was, and was not, proper. The state presumably prepared him to testify and reviewed the ground rules with him. No need for Zimmerman to testify once he was certified as truthful by the top cop in the case. Call Serino a saboteur. He won.
Do jurors always follow the judge’s instructions? B37 has me scratching my head. Did she really just happen to wake up Sunday morning and then decide to contact an agent and arrange prime-time interviews? Odds are this gold-digging juror figured this would be her ticket to fame and fortune. All she needed was a good story line. Did she insist on a not guilty verdict because it would boost her book sales?
Jurors are routinely told not to discuss the case until all evidence is in. They are not to conduct their own investigations. They are to foreswear Facebook, Twitter and social media. Had Zimmerman been convicted, serious questions would be raised about potential juror misconduct. B37 might be interviewed about when she conceived and began to execute her rollout campaign.
And what of the trial court’s evidentiary rulings? Judge Nelson kept from the jury audio-recordings of Zimmerman’s complaints about suspicious young black men in the neighborhood. She did so because she concluded the evidence was prejudicial and not relevant to whether Zimmerman killed with nefarious intent.
Evidentiary rulings of this sort are what are known as discretionary rulings. A trial judge calls balls and strikes with general guidance from settled legal doctrine. On appeal, other judges review the decisions to see if the trial court abused its discretion. It is a very lenient standard. Had the evidence been permitted as demonstrative of Zimmerman’s racial animus and motive to profile, the defense would have appealed on this ground. The state, of course, can take no appeal.
I raise all these issues simply to suggest that it’s a little naive to assume that just because a jury has spoken, the jury got it right. Lawyers recognize that when there is a conviction, there are often good reasons to believe a jury reached the wrong conclusion.
United States Attorney General Eric Holder can study the trial record in this case and decide that substantial justice requires that federal charges be lodged against Zimmerman. Double jeopardy does not bar prosecution for a federal offense; only Florida is prohibited from bringing new charges.
Why not convene a grand jury? Why not summon B37 and ask her a few questions about what she was up to as the jury deliberated? Why not ask Serino if he wasn’t trying to even the score with his gratuitous and improper commentary? Why not charge a crime based on hatred of a person on account of race, thus making evidence of racial animus highly relevant in any new trial?
There’s a reason millions of Americans want a federal investigation. They know profiling exists. They know the color line still separates and divides in ways that are profoundly destructive. They know that the feds can act when they choose to act.
What they don’t know is whether Eric Holder is the man for the job that needs doing. In this case, millions of Americans are appealing to the Justice Department to take a closer look.