Why George Zimmerman Shouldn’t Be Convicted and How He Might Be Anyway

            No one but the killer knows what actually happened leading up to the shooting … [I]t is conceivable that Trayvon did become the aggressor in an altercation with Zimmerman and may have punched him in the nose, causing Zimmerman to fall to the ground and that Trayvon then appeared to be preparing to continue his assault with violent fury, which led Zimmerman to fire his gun at him.

            I wrote those words back in late March, when the Trayvon Martin killing was as hot a news story as anything being covered by the national media.  At the time, you’ll recall, the cries for an arrest in the case were deafening.  Media coverage was focused on the vigilante actions of George Zimmerman and the seemingly peaceful and law-abiding victim that he killed.

            In the almost two months that have followed, the case has become clearer, if, indeed, the ultimately decisive facts (how the shooting actually occurred and what the killer and victim were doing just prior to it) are still unknown and may well never be conclusively proven.

            But at this point, in terms of the likely resolution of the second degree murder charge filed against Zimmerman, it almost doesn’t matter.  Based on the evidence that has come to light and that almost certainly will be available at trial, the verdict a jury would reach is almost certain (save for one potential “effect” that I’ll discuss in a moment).

            And that verdict would have to be not guilty.  Here’s why:

            To secure a guilty verdict in a criminal case, the prosecution must prove all of the elements of the crime “beyond a reasonable doubt.”  That term is often misconstrued by lay people (those who don’t work in the justice system), but it is meaningful to those who do, especially those who represent criminal defendants.

            Simply stated, the term “beyond a reasonable doubt” requires that the jury must believe that the evidence presented establishes that the defendant is guilty.  The only kind of doubt that really isn’t represented by the term is the kind of doubt that most reasonable people wouldn’t have, like maybe doubt that you really received your last pay check when your bank statement shows that a direct deposit of exactly the amount you were due was made on the very day the payment was due.  That kind of doubt would not be reasonable under those circumstances.

            Another way to understand the term, and the severe burden it places on the prosecution, is to compare it to some other standards that are applied in jury trials.  In most civil (non-criminal) cases, such as where a jury has to decide if a person was negligent in causing injuries suffered by another, for example, the jury only must decide that the person “more probably than not” or “by a preponderance of the evidence” was (or was not) negligent. 

            Some civil cases, such as those that can result in civil (not criminal) commitment to a psychiatric institution, for example, require a higher standard.  It is called “clear and convincing evidence.”  As you might expect, that standard is pretty hard to meet.  But even it isn’t as high a standard as the one the prosecution must meet in a criminal case, like the one that George Zimmerman is facing.

            So, if you’re with me so far, you will appreciate that the role of the defense attorney in Zimmerman’s case is just to establish that the evidence does raise a reasonable doubt about whether Zimmerman killed Martin with malice aforethought (the principal requirement for a second degree murder charge).

            Note what the defense attorney doesn’t have to do.  He or she doesn’t have to prove that Zimmerman is innocent or even that he probably isn’t guilty.  All he or she has to do is show that the evidence is sufficient to cause a jury to have reasonable doubt about whether Zimmerman is guilty.

            Now let’s look at the evidence that will be available to the defense.  The police report of Zimmerman’s initial arrest (immediately after the shooting) will certainly be admissible evidence, and it includes the description of Zimmerman’s physical condition (broken nose, bloody lacerations on the back of his head).  The police photos taken of Mr. Zimmerman confirming the injuries to the back of his head will also be admissible.

            The prosecution will introduce other evidence (perhaps the testimony of the girlfriend Martin was speaking to on his cell phone just before he was killed, maybe expert witness testimony claiming the voice crying for help was Martin’s), but that evidence will only serve to suggest that Zimmerman was the aggressor in the incident.  It won’t prove beyond a reasonable doubt that he killed Martin with malice, rather than in fear of his own well being (the self-defense defense).

            And so the jury would be faced with conflicting evidence and would need to completely accept the prosecution’s version of the case and dismiss entirely the police report and the photos of Zimmerman’s injuries to be able to return a guilty verdict.  And no jury, properly instructed of its responsibility and properly exercising that responsibility, would return a guilty verdict in that case, because the conflicting evidence would create a reasonable doubt.

            Now for that “effect” I mentioned earlier.  I’ll call it “the reverse OJ effect.”  Recall that in the O.J. Simpson murder trial, the evidence, viewed by all reasonable standards, established that Simpson was guilty of murder.  But the jury was swayed by lots of adverse publicity against the Los Angeles police department, and, when coupled with the overbearing racial considerations that were at play, it found Simpson not guilty.

            The reverse of that effect could upset the otherwise almost certain verdict in George Zimmerman’s trial.  The publicity against the local police department has been as anti-defendant as it was pro-defendant in Simpson’s case.  The racial considerations also may work against the weight of the evidence.

            In other words, the jury may convict Zimmerman in spite of the clear doubt as to his guilt, because of factors that shouldn’t sway its judgment but may.  OJ got away with murder because the prosecution preserved and presented the evidence poorly and because claims of racial prejudice weighed in Simpson’s favor.

            Similarly, Zimmerman may be convicted where OJ was acquitted because the same kind of factors influence the jury.  The “reverse OJ effect” would result if the publicity surrounding the initial police investigation and the racial aspects of the case filter into the jury’s consideration of the evidence and effectively diminish the otherwise overpowering impact of the admissible evidence.

            And so, even though George Zimmerman should be acquitted in his trial for second degree murder, he might be convicted by “the reverse OJ effect.”