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On representing “those people”, George Zimmerman, and the power of effective jury consultants

Aug 01, 2013 On representing “those people”, George Zimmerman, and the power of effective jury consultants

On July 18, I discussed the state of racial injustice and racial justice in America in the aftermath of George Zimmerman’s trial, and said to stay tuned for my views on the criminal defense aspects of the case.

George Zimmerman’s complete acquittal has led to substantial polarization in the United States. I ordinarily am happy at acquittals of criminal defendants — as I am here — amidst the heavily unfair and unjust criminal "justice" system. That of course does not make me pleased to be in the company of bigots who cheer the acquittal. It is easier to know that bigots use toothpaste, just as I do, than that they are taking comfort in this verdict.

My usual default is to be happy at any acquittal. That would have been different in the Jim Crow South. When Jim Crow juries knee-jerk acquitted whites of crimes on African Americans, federal prosecutions sometimes followed in the 1960’s.

When such polarizing jury trial acquittals as Zimmerman’s arise, the repeated question of "how can you defend those people?" might become more frequently directed to criminal defense lawyers. However, "those people" are related somehow to us, because we are all connected. As Publius Terence said: Homo sum: humani nil a me alienum puto./I am human: nothing human is alien to me. Thich Nhat Hanh takes Publius Terrence a step further in his poem "Please Call Me by My True Names," recognizing that but for his fortune in experience, resources, compassion and wisdom from an early age, he could have become the child raped by a pirate as well as the pirate who raped her, "my heart not yet capable of seeing and loving."

Mitakuye Oyasin. We are all related, and it is an illusion and delusion to think otherwise. There is no them versus us in the final analysis. It is all we, including our perceived and actual opponents and enemies. Connectedness with each other is not some sort of touchy-feely approach to life, but a reality that, once recognized by more people, will reduce wars, violence upon others and trespasses against others, and will bring us towards a much better world where people will open their hearts to each other and share with each other of themselves and of their resources.

Because we are all connected with other humans, all other living things, and to this planet, I believe strongly in living a life of harm reduction. Our presence on the planet causes pollution, but each of us can reduce our carbon footprint. To live we must eat living things, but by foregoing eating meat, fish and fowl, we cause less suffering to the "food" animals, and less hunger to people, seeing that it takes tremendously more resources to produce land animal protein than plant protein. Our criminal justice system causes the accused to suffer, and we can reduce that suffering by treating them fairly and as humans, and by legalizing marijuana, prostitution and gambling; eliminating mandatory minimum sentencing and the death penalty; heavily decriminalizing all other drugs; and eliminating per se blood alcohol content-based rules of guilt in drunk driving cases. 

Here and here, I further answer the age-old question of "how can you defend those people?"

Without further ado, following are some of my snippets of thoughts about the criminal defense aspects of the George Zimmerman trial:

Lawyer Robert Hirschhorn was Zimmerman’s jury consultant. Hirschhorn’s fees to be at trial are way out of reach for the vast majority of criminal defendants.

– I met Robert Hirschhorn when he was an instructor at the 1994 Trial Practice Institute of the National Criminal Defense College. Here is a video of him discussing jury selection.

– Hirschhorn’s late wife Cat Bennett is the namesake of his jury selection firm. She passed away twenty-one years ago, at the age of forty-one.

On my Great Advocates for Justice webpage from the very beginning over a decade ago, Cat Bennett reminded us to "Give people their flowers in this lifetime." I was a judge at the first Cat Bennett law student trial competition in 1992, sponsored by the National Association of Criminal Defense lawyers. Cat’s foregoing quote graced the conference t-shirt, which I wore repeatedly — as it invigorated me with her positive energy — until it finally wore out several years later. I never met Cat, who passed away just a year after I became a public defender lawyer.

I have always been proud that my partial scholarship to the 1994 National Criminal Defense College, when a public defender, was in the name of Cat Bennett.

– Three jury trial consultants who can metamorphosize the power of the criminal defense are Dr. SunWolf, Don Clarkson, and Josh Karton.

– Zimmerman’s judge told the jury that acquittal is required unless proven guilty beyond a reasonable doubt, and murder requires intent to kill.

– At least where I practice law,  a murder conviction can arise from recklessly violent behavior. I do not know if the Zimmerman jury was told that.

– To the extent that race affected the Zimmerman jury’s verdict, did it consider that his mother is Hispanic?

– On Facebook soon after the Zimmerman acquittal, a former chief public defender said: "Feeling so sick right now. No words." Replying to the foregoing Facebook posting, a past Maryland public defender lawyer said he was disappointed in the verdict, but that the prosecutor did not do very well at trial.

– Local WTOP radio played a soundbite of the Zimmerman prosecutor’s closing where his more whining than passionate tone sounded a turnoff. I do not know how the prosecutor sounded during the rest of the trial.

– Here is a transcript of George Zimmerman’s call to the police on the night of the incident.

– Here is George Zimmerman’s handwritten statement to the police.

– Zimmerman should not have been playing the role of armed vigilante. The Second Amendment does not preclude deciding NOT to arm nor own a gun. Disarm now. 

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