Zimmerman: No Appeal From The Court of Public Opinion (Update)

George  Zimmerman was acquitted on a Saturday night. Keyboards were pounded. Reporters reported. Pundits opined. And the jury in the court of public opinion rendered its verdict.

Almost no criminal lawyer, prosecution or defense, saw a second degree murder conviction coming. Education and experience condemns us to view evidence and law with detached logic, so there is no emotionalism, no reliance on “common sense,” to fudge the proof.

While juries regularly reach verdicts that bear little relation to the facts, evidence and applicable law, mostly because it’s a deeply flawed system, that didn’t happen here. The best discussion of what happened that has been produced thus far comes from the Unwashed Advocate, Eric Mayer, who succinctly lays it out.

Acquittal was the right verdict in this case, no matter how much you feel Zimmerman acted out of prejudice, or how terrible it is that a young man was killed.

But the court of public opinion rendered its opinion on twitter following the verdict. For those who embrace the “wisdom of crowds,” consider its holding:

1. Trayvon Martin’s family should appeal the verdict, up to the Supreme Court if necessary.
2. On appeal, they can make George Zimmerman testify.
3. Then, George Zimmerman will be convicted because a young man is dead.

It’s not that people intentionally determined that the Constitution should be ignored. It’s that the crowds have no clue.  Maybe they slept through civics class. Maybe they don’t remember. Maybe they don’t care. But less than ten days after we celebrated the independence of this nation, the court of public opinion has decided they don’t like them.

There will be no appeal because of the double jeopardy clause, which precludes it. Zimmerman did not have to testify, and will never have to testify in a criminal prosecution, because he has the right not to testify. And most sadly, the fact that a young man is dead does not compel the conclusion that someone be convicted of a crime.

So much for the adoration of crowdsourcing, or the desiderata that the public can be entrusted with the handling of the law.  In the court of public opinion, assumption runs rampant, as people get their own “feel” for right and wrong, and then  become so entrenched in their own bias that they refuse to consider the hard details of evidence and proof.  People need no trial to tell them what happened. They hear a story and whatever gut reaction they have to it becomes their reality.

As it turns out, much of what was told about the death of Trayvon Martin is either false or mired in mystery. When left with the proposition that we will never know what “really” happened, the significance is that the prosecution then lacks evidence to prove its case.  But Trayvon is dead, so it’s unfair since he can’t tell his side of the story?  True, but that doesn’t change the requirement that a defendant be proven guilty. The rule is not proof if its available, assumption if it’s not. Except in the court of public opinion.

Is there nothing left to do? There is the possibility of a civil suit for wrongful death by Trayvon Martin’s family, just as Nicole Brown Simpson’s family sued O.J. The standard of proof is lower, “preponderance of the evidence” rather than “beyond a reasonable doubt,” but the outcome will be money damages at worst, not conviction of a crime and imprisonment.

There is also the possibility of a prosecution in federal court for violating Trayvon Martin’s civil right to live by shooting him, under the dreaded dual sovereignty that allows the feds a shot if the state fails to convict. That’s what happened to LAPD Sgt. Stacey Koon in the Rodney King beating.

Will either of these happen? Time will tell. The former seems far more likely than the latter, but Trayvon’s family may be more legally sophisticated by this point, such that they realize the difficulty that exists with providing evidence to prove their claim.  It’s not that they can’t believe, but they can’t prove.

As show trials go, this one has generated plenty of fodder for television heads to fill the empty minutes between commercials.  But it has also shown that the court of public opinion can’t be trusted. Americans still don’t understand their own system. They don’t get that the rights they want for themselves have to be given to people they despise as well. They refuse to accept that someone they  feel with absolute certainty is guilty can be properly acquitted.

Did George Zimmerman have hate in his heart? Who knows. I don’t. Neither do you, no matter how strongly you believe you do. But he wasn’t proven to have killed Trayvon Martin because of his ill will toward a young black man, and when that happens under our system, acquittal must follow. Yet the court of public opinion refused to accept the verdict, instead pushing its million member jury deeper into ignorance.

There is one truth that neither conviction nor acquittal can change :

 A young man named Trayvon died. He didn’t need to die. That is both tragic and sad.

And there is another truth that twitter cannot change. For all the vast information that has become available to us by virtue of the internet, there is no wisdom of the crowds.

Update: Already this morning, television news has broadcast the twits of New York City politicians and candidates following the verdict. They have the potential to enlighten, to calm, to inform. Instead, they are pandering and inflaming the passions and ignorance of the public, playing the confirmation bias card.

Whether they too lack a working grasp of our legal system, or know better and just don’t care, is unclear. Either way, a million people could end the day stupider than it began. Is it worth a vote? Don’t answer.

111 comments on “Zimmerman: No Appeal From The Court of Public Opinion (Update)

  1. Lisa

    Why can’t the Martins sue the state for wrongful death? They failed to confiscated Zimmermans ccw permit? He should not have been carring a gun to begin with. Just a thought. And was he even ever charged with having a gun when he shouldn’t have had one?

  2. John Jenkins

    Whenever a verdict like this comes along. I am most disappointed by my friends who are also lawyers who seem to abandon their principles and believe the racial or social identities of the victim and defendant are the most important part of the story, irrespective of what the available evidence would otherwise indicate. It can be quite disheartening.

  3. SHG

    The state didn’t fail to do anything, and there is no possibility whatsoever. The state gets to regulate concealed carry permits. It doesn’t require individual approval of members of the public to chose not to deny a person a permit. And even if it did, there would be no proximate cause.

  4. SHG

    Cognitive dissonance. It’s easier to resolve with feelings than thinking. Even lawyers are human, sometimes, and suffer the frailty of emotion clouding their judgment.

  5. Lisa

    You can have domestic violence charges on your record and still own a hand gun and have a ccw? I’m all for 2 nd amendments rights but I thought we were suppose to keep guns out of the hands of criminal?

  6. SHG

    The state regulates. The state decides. It’s not up to you, me or Trayvon’s parents who gets a ccw. It’s up to the State of Florida.

  7. REvers

    He was never charged with any sort of domestic violence. He and his girlfriend got mutual restraining orders against each other in 2005. At least, according to NBC.

  8. Jason

    I would offer a very limited and qualified defense of the outrage: the prosecution committed themselves early and often to a narrative of hate and racism that the facts could never support. As a result, ‘justice’ in the eyes of those who believed Zimmerman should have been convicted was never obtainable, and in that sense, was ‘justice denied.’ This should always have been a manslaughter case with a far different emotional overtone for the state- less righteousness and more disappointment over an avoidable tragedy.

  9. Lisa

    I wasn’t asking for the state to get approval from me or anyone for that matter. There’s a person in Texas who just found out that he can’t purchase own or carry a handgun because of an arrest for pot in 1971 and that’s not the state that’s federal law. So yes I think because of what he was arrested for the state failed. All law abiding citizens have the right to own or carry a hand gun.

  10. Jason

    It should be- unfortunately in my admittedly limited criminal defense experience I’ve found that where people lack the knowledge and patience to articulate their frustration and evaluate its causes, respectively, thought gives way to scatter-shot emotion.

  11. SHG

    Zimmerman wasn’t a felon in possession (the federal law to which you refer). Never was.

    Just an FYI, but even if he had gotten arrested (which I’m not sure is accurate), arrests mean nothing. It’s conviction, not arrest.

  12. Lisa

    I never said he was and neither was the man In Texas. And that is not the federal law I was referring to. Anyway again it falls on the state and not because I said or she or the Martains said because it does just as you said the state decides not me or you but the state. And they decided to leave a firearm in the hands of a criminal I didn’t decide that and the Martains didn’t decide that the state did.

  13. SHG

    Now you’re getting into problem territory. If he’s “a criminal,” you have to back it up. When was he convicted? What was he convicted of? You can’t just make vague accusations up in your head, pretend their real and ask why the world isn’t acting upon them.

    The problem is that none of this exists. He has no felony conviction. He was authorized by Florida to have a concealed weapon. You haven’t noted any law that would say otherwise, yet concluded something is very wrong here. There just isn’t.

  14. Henry Bowman

    “It’s not that people intentionally determined that the Constitution should be ignored. It’s that the crowds have no clue. Maybe they slept through civics class. Maybe they don’t remember. Maybe they don’t care. … So much for the adoration of crowdsourcing.”

    But popular elections, on the other hand, are the best of all possible processes. :-(

  15. SHG

    I believe it’s Ilya Somin at VC whose points about political ignorance have an awful lot of merit. Everybody is allowed to have a political opinion. And vote.

  16. Lisa

    Well then maybe he should sue the police for wrongful arrest because they just go around making arrest and charges because there’s nothing there. I haven’t made nothing up in my head. Well the world isn’t acting on them because its not up to the world as you said its up to the state. Maybe he was a law abiding citizen when he applied for a ccw but when he was arrested and a restraining order was issued for domestic violence the state could of and should of revoked his ccw and maybe even taken his firearm.

  17. Rick Horowitz

    It’s been difficult to watch my friends — one of whom I’ve already lost over this issue — descend into blathering angry people who appear to no nothing about the things they’re blathering and angry about.

    From what I can tell, I almost just have to stop participating in any discussions of the Zimmerman case, because whether you say it in a way that insinuates you think they are blathering angry people, or whether you try very hard to avoid that and just talk about the case the way an attorney sees it, and the way (as an attorney) you think most people would want the system to work (i.e., dispassionately looking at the evidence, rather than passionately jumping to conclusions), it just seems to make people angrier.

    They do, however, sometimes stop blathering, because they just refuse to talk to you about it anymore. And, again, that’s even if you manage to avoid using any insulting language like “blathering” and “angry” and “idiot” and “ignoramus,” which I don’t always manage to do.

  18. SHG

    As I’ve already explained (nicely), arrested doesn’t mean someone is guilty or a criminal. Now you’ve gone deep into flaming nutjob territory.

  19. SHG

    Non-lawyers call as pompous arrogant assholes because we are unable to acquiesce in whatever stupidity pops into their heads as if was inherently reasonable despite the fact that it makes no sense or flies in the face of the law.  The problem is that they won’t accept the fact that as “passionate” as they may be about a subject, that doesn’t mean they have a clue, and that doesn’t enable them to engage in an intelligent discussion with anyone who is knowledgeable about something.

    Happens a lot around here. Lucky for me I’m so tolerant of stupid people.

  20. BL1Y

    Everyone is allowed to have an opinion, but it’s a shame that so few people exercise that right. Instead they opt to have mere feelings and impressions.

  21. NL

    The fact is, that it was Zimmerman stalking Trevon, it was Trevon who tried to defend himself and it was Trevon who was killed. What if it was the other way around? Do think the verdict had been the same? Sadly, the law does not apply equally to white and minorities. It’s not that we are ignorant, and don’t know the law. The problem is that the system work for some (white), but not for all.

  22. SHG

    Allowed, perhaps. Entitled only happens when someone possesses sufficient knowledge to form an opinion.

  23. SHG

    If you’re going to start a comment with “the fact is,” it’s really important to at least know the dead guy’s name so you can feign at least minimal credibility when you claim you aren’t ignorant.

  24. tb

    Which Trial.Were You Watching? Z Followed T…NoT Stalked.How Was T Defending Himself?

    Testimint Was That T Confronted Z Asking Why He Was Following Him. Z Responded By Asking T What He Was Doing There. T Then Hit Z. Knocked Him To The Ground And Proceeded To Pen And Beat Him.

    So Your Contention Is That T Was Defending Himself? From What? A Question?

  25. SHG

    That was one version of the testimony. The prosecution’s version differed. Since none of us were there, and the burden of proof was on the prosecution to prove that its version was true beyond a reasonable doubt. we can only conclude that it failed to do so. That doesn’t mean the defense’s version was true, but only that the prosecution failed to prove its version was true.

  26. Lisa

    First of all not flaming about anything. Second nut job? Well I guess your entitled to your opinion and I’m a nut job for mine. Fact fact Zimmerman shot and killed a child. Fact the state could have revoked his ccw. Fact he was arrested for 2 other violent crimes. Fact there was maybe still is a restraining order issued with his name on it. This isn’t a case of did he do it he did it. And I’m well aware that arrested and convicted are different. So why don’t you tell me what makes a person a criminal? In your thought if you get arrested your not a criminal. If it all gets sweated under the rug and you are not convicted you are not a criminal. So no matter what a person does what crime it is if they are not convicted of it they are not a criminal and have the right to own and carry a firearm just as someone that has been a law abiding citizen. Well in may opinion there is something very wrong with that. I’m sure there are many times that evidence doesn’t hold up or gets thrown out or witnesses back down and the case gets thrown out or charges dropped. That doesn’t mean the person didn’t commit the crime. Or what about the ones that haven’t been caught yet? Are they criminals? I mean they haven’t been convicted yet. There’s just their DNA and a video of them committing a crime but they are not a criminal because they have not been convicted. So in your opinion a person comes to your house or mine whoever they break in they have you at gun point they trash your house assault you and steal your belongings and walk out the door not to be seen again they are not a criminal because they have not yet been convicted? Look all this is is a difference of opinion I believe the state could of and should of revolved a ccw from a person who had been involved in violent crimes just cause he was not convicted doesn’t mean they did not happen. I believe they happened or they would not have arrested him. And even tho he has not been convicted of a crime why does he have a criminal record?

  27. SHG

    We have no difference of opinion. In order to have an opinion, you would need some basis of knowledge upon which to form it. You have none. Sorry, but being ignorant doesn’t give you the right to make up a fantasy world where your contention that someone arrested but not convicted is a criminal because you feel he should be.

    No, definitely flaming nutjob. Sorry. but that’s all she wrote.

  28. Lisa

    O but we do. Again not flaming and yes I do have an opinion as do you. You have already formed an opinion on me as a person and your basis is what some typed words on a screen? The difinition of criminal is a person who has committed a crime. That’s it. That’s not a fantasy world. That’s just what it is it doesn’t matter whether you have been caught arrested or convicted. That’s about as simple as it gets. I base that opinion on the dictionary. And might I ask what you base your opinion on? You say a person is not a criminal unless convicted of a crime. Sorry it’s just not true. If you rob a bank and don’t get caught you still robbed the bank you committed a crime. If you are driving down the road at 45 mph and the speed limit is 35 you are speeding just because no one else saw or the police didn’t stop you doesn’t mean it didn’t happen. I really find it hard to believe that you can’t grasp that simple fact. I am really trying to understand where you are coming from.

  29. SHG

    Last try.


    The difinition of criminal is a person who has committed a crime.

    In this country, the way we conclude that someone has committed a crime is because they have been convicted of a crime in a court of law. Not because some person on the internet feels they have, or pretends they have, or thinks they kinda have or maybe have. Not even if a person who wasn’t there, knows no one involved, reads a story in a newspaper and watches a few TV shows, and thus concludes that she knows what she needs to know to believe with all her might that someone is a criminal.

    This isn’t an opinion. This is the way our nation functions. You don’t get to have your opinion on the subject. I understand your argument. You’ve given excellent examples. But no one, ever, is a criminal in the United States of America until he or she has been convicted. Neither you nor anyone else gets to decide differently.

  30. Lisa

    O but we do. And i do have an opinion and I base my opinion on the fact that a criminal is a person that commits a crime plain and simple. You have already have an opinion of me and what do you base that on some words on a screen. If you robbed a bank and you don’t get caught arrested or convicted doesn’t mean it didn’t happen. You still committed a crime. I really can’t believe that you can’t grasp that. So what is your opinion based on?

  31. Rick Horowitz

    This just seems to be the toughest thing to help people understand.

    Seriously, anyone can get arrested, at just about any time, for just about any thing. It might include something as simple as telling a police officer you don’t want to talk to him, when he wants to talk to you. (Not to go too far astray, but that’s another thing people don’t get: no one is required to talk to the police, just because poilce want to talk to them.) It could be that you look like someone else who is the real person sought. It could be because the cop didn’t get his donut quota that morning.

    Or it could be because they suspect you did something that is proscribed by law. They might even be right.

    But, until there’s a trial, and a jury agrees, you aren’t a criminal. You’re just a suspect.

    And it’s always possibly that you were incorrectly suspected.

    What Scott has been patiently (much more patiently than I would be!) trying to explain to you is that you don’t have an opinion. Your comments demonstrate that you merely have a belief. And one based on a lack of knowledge, at that.

    But apparently they don’t teach people the difference between beliefs and opinions anymore, either.

  32. SHG

    Last time. A crime is a legal term. It is not some vague, fuzzy concept. A person is a criminal when he has been convicted of a crime. Without conviction, a person is not a criminal. Your confusion of conduct which, putting aside your simplistic explanations, may form the basis for suspecting a person to have committed a crime, accusing a person of having committed a crime, even believing a person committed a crime, does not make someone a criminal. The only way someone is made a criminal is to be convicted of a crime.

    Now we’re done. If you feel compelled to continue arguing because you feel that you get to redefine words to mean what you want them to mean, you will have to do so elsewhere, preferably with other people who are flaming nutjobs. Bye.

  33. Rick Horowitz

    I was actually going to ask you that same thing.

    I suppose it wouldn’t be bad, if it actually paid off, but — even though I’m not religious I still read a few such books — this is reminding me of one that talks about pearls before swine.

  34. REvers

    You’re getting mellow in your dotage.

    Don’t feel bad, it happens to even the most curmudgeonly of curmudgeons at some point.

  35. SHG

    I try to help, but while I can explain it to them, I can’t understand it for them. Oh well.

  36. Badtux

    While I am one of those who said this case should have never been prosecuted in the first place because there simply is no evidence to rebut Zimmerman’s self-defense claim, let me put in a defense of the general public and their outrage. The general public wants justice. Not law, justice. In their eyes, a man who gets out of his car and stalks a teenager and shoots him has done something wrong and should be punished for that somehow. We can argue law, we can point out that Florida law allows you to claim self defense even if you instigated the contact because there is no duty to retreat in Florida law, but the general public doesn’t understand law, and really doesn’t care about law. But justice — punishment for doing wrong — is a concept that even toddlers can comprehend.

    You and I can point out that rule of law was upheld and that rule of law, as imperfect as it is, is far superior to the alternatives which are rule of lynch mob and strong man rule. But that is not going to satisfy the mob, because the mob is not interested in law — they are interested in justice, and perceive no justice in this decision.

    The dichotomy between law and justice is something the legal profession tries to ignore. Unfortunately when the general public perceives law as being injustice, the end result is a general public that loses interest in upholding rule of law. The end result is Putin in Russia, strong-man rule that renders the legal profession largely irrelevant (democratically elected by the majority of Russians I might add, he rigs elections out of habit, not because he needs to). Which is why the legal profession continually disdaining the mob’s desire for justice might be the end of rule of law, for if they see no justice via law, they will choose another option. This is still (mostly) a democracy, after all… so yes, you *should* be worried that law and justice too often are not the same thing. Just sayin’.

  37. Ron Coleman

    Either way, a million people could end the day stupider than it began.

    Talk about reasonable doubt! Don’t worry: There was no such change. The kind of stupid we’ve seen on Twitter etc. over the last 24 hours shows us that the characters in this sad play are, also sadly, liked the ones in poorly written fiction: Static, unable to develop, grow or learn.

    They’re every bit as stupid as they were a week ago. Just louder about it, and prouder, too.

  38. Nina H.Lanina

    Dear Mr.Greenfield,

    How do you “survive” in THIS public assembly of comments?…. I read the post yesterday, and it’s been keeping rolling and rolling…

    Please consider the option for lawyers-only comments on SJ — your blog is too sophisticated to allow mediocracy spoil its beauty and drain your time!

    =======================================
    Thank you very much for sharing! :-)

    Yours sincerely,
    Nina

  39. SHG

    I agree, but it creates a problem. When “justice,” whatever that is, it disconnected from facts or reality, it becomes another flavor of mob rule. The mob never sees anything wrong with mob rule.

  40. C. N. Nevets

    I must confess to utter bewilderment by the number of people (casting their lots on either side of the courtroom) who seem to have an apprehension of facts that are not truly available.

    And also no concept of the burden of proof.

    Or is it a willingness to suspend the burden of proof to resolve their cognitive dissonance?

    I wish I were comfortable assuming that it’s all instinctive and involuntary mental gymnastics.

  41. Badtux

    The fact that you put the word “justice” in quotes reminds me of a general failing of the legal profession — the fact that it does not understand where law comes from in a democracy. Law, in a democracy, originates in the desire of the general public for justice. The Florida “stand your ground” law originated in the perceived injustice of being prosecuted for defending yourself. What the law proves is that the concept of justice is situational and based on ethics but law is not. A law intended to prevent one injustice allowed another (if Zimmerman had a duty to retreat as is the case in many other states, there would have been a chance for at least a manslaughter charge to be upheld due to his failure to retreat).

    The general response of the legal profession when bad law like this allows injustice — to excoriate those who point out injustice and condemn their desire for justice as “mob rule” — is not helpful. It feeds into stereotypes of lawyers as heartless automatons with no ethics and no morals. I’m not sure what the response *should* be, but condemning those who want justice isn’t helpful. Just sayin’.

  42. John Neff

    Our host intended to write for other lawyers and judges but has been willing to help those that are trying to make the transition form being ignorant to becoming partially informed.

    The reason I said partially informed is because some of the information that is needed to become more fully informed is confidential for good reasons. An unfortunate consequence is that the general public has big holes in their knowledge of the CJS and they don’t understand why that is necessary.

    Even with the help of SJ it took me awhile to figure that out. A little knowledge is dangerous but not as dangerous as total ignorance.

  43. Eric L. Mayer

    Rules 1, 2, and 3 clearly apply to your conversation with Lisa. This means you should devise and execute a way to facilitate rule 5.

  44. tb

    “The general public wants justice. Not law, justice. In their eyes, a man who gets out of his car and stalks a teenager and shoots him has done something wrong and should be punished for that somehow. We can argue law, we can point out that Florida law allows you to claim self defense even if you instigated the contact because there is no duty to retreat in Florida law, “

    According To The Prosecutions Witness And Friend Of Trayvon, contact Or At Least The Only Actual Knowledge We Have Of Contact, Was Instigated By Trayvon When he Asked Confronted And asked Zimmerman Why He Was Following Him.

    No Other Prior Contact Was Shown Through Testimony Or Evidence.

    Now, As Far As Public Opinion, The Public Knows.oftThe Evidenve The JUry Was Not Allowed To Know..trayvon Was Not Out For An Innocent Walk To The Store, He Was found To Have Had Drugs In His System, Which Is Illegal. I’m Not SuggestinG This Is Why He Was Followed Or Shot Or That It Justifies EitheR. Just Showing That It Is Ignored In The Public Narrative That This Was An Innovent Child That Was Simply Walkong Home Fromthe Store After Buying A Bag Of Candy. As It Contradicts The Claim Of Innocence.

  45. SHG

    Aside from the erroneous (yet widespread) misunderstanding that this case had anything to do with Stand Your Ground, you indulge in a philosophical error that lawyers cannot. You talk about “justice.” I put it in quote for a very specific reason.  Everyone wants “justice,” with one huge problem: every thinks “justice” is whatever they believe “justice” is, even as too sides screaming for it want the exact opposite thing.

    Justice isn’t a thing. It’s a transitory concept. A very difficult transitory concept to grasp, as each of us thinks we know and thinks those who agree with us know it, but everyone for whom “justice” is different is wrong, evil or worse.  Zimmerman and his supporters believe justice was done. The Martin family and their supporters believe this was anything but justice. They’re both right, and they’re both wrong.

    The legal profession doesn’t have the luxury of indulging in fuzzy, vague, self-absorbed thinking, that whatever we (and each lawyer has his own views because we’re people too) think the just result should be. Our virtue, if not our fault, is our ability to separate emotion from thought, and to apply reason when all around us our too filled with passion to think rationally. Just sayin’.

  46. SHG

    Aside from your peculiar use of capital letters at the start of each word, you are doing the same as your opponents are doing. It serves no purpose and adds nothing, just as their “true facts” add nothing. It’s just needlessly inflammatory, and I have no plans to host this duel. Any further comments about the facts of the case get tossed.

  47. tb

    Posting From Phone. Not Sure Why It Does That.

    I Felt I Was Addressing Directly The Topic He Was In Showing How The Perception Of Justice Is Effected By A Perception Of Facts. Sorry.

  48. Bruce Coulson

    Perhaps the only good joke to come out of all of this: “Flash! In the wake of the Zimmerman Verdict, millions of Facebook users acquire law degrees!”

    Yes, there is no appeal in the court of public opinion. And there never will be, because public opinion is all of us. There are a few outliers (such as attorneys) who stand back and do not participate, but then by definition they aren’t part of that court. And mandating a requirement that every citizen be educated in basic legal thinking isn’t practical, either.

    So, all of us are possiby subject to summary judgement; to the community declaring ‘What you did was wrong; it may have been legal according to statute, but we, the general public, still deem it was wrong.’ In the bad old days, the only escape was to go to far enough away that your new community didn’t know about your prior actions and the later disapproval. Now, in the global village, this is no longer an option.

    This is because we are social animals; there are certain things that for whatever reasons arouse the ire of the society.

  49. SHG

    You were, but they were wrong to start up that crap and I don’t want to perpetuate with the other side. It always devolves into a morass of claims and counterclaims, and that’s not what this post is about or what I do here.

    So that’s an iPhone?

  50. Jack

    Hey! While us non-lawyers may confuse some aspects of the law, or plow through all nuance from time to time, it doesn’t mean we all completely lack the ability to detach emotion from reason. I, for one, am just as disappointed by the punditry, public anger, and so-called journalism fueling the blind emotion on this. Any time people call for Constitutional Rights to be trampled because of their feelings, it needs to be called out. You won’t see me screaming for any new laws every time a child is killed to “make sure [insert “injustice”] is never left unpunished again.”

    Note: Yes, many people spew stupid all over the place and will ignore all laws and constitutional protections when it suits their opinion. However, it isn’t just non-lawyers, there are plenty of lawyers who do this too!

  51. SHG

    The saying is that everybody is entitled to their own opinion. That’s never been my view. While they are allowed their own feelings, an opinion requires basis, and without basis, it’s just a feeling.

    Now it’s fine that people feel whatever they feel, as long as they understand that it’s just what they feel. But they rarely do.

  52. Badtux

    You appear to be proving my point about reactions of legal professionals.

    Look: There was never any evidence to support a murder charge, Stand Your Ground or no. I’ve repeatedly stated that this is a prosecution that should never have occurred because there was no way to prove that Zimmerman murdered Trayvon Martin. The only possible applicability of Stand Your Ground would be to a manslaughter charge alleging misconduct on the part of Zimmerman leading to the death of Martin, but a) no evidence was ever developed by the prosecution to allege this, and b) the Stand Your Ground law pretty much precludes that charge in this situation to begin with.

    Basically what I am stating is not that the outcome was wrong but, rather, that the response of the legal profession to those who claim injustice is wrong. My personal response was to state that sending a man to jail without evidence supporting a charge allows more injustice than allowing a man to escape justice due to lack of evidence. Better to allow a probably-guilty man to be free than to possibly imprison an innocent man. But name-calling of those seeking justice is *never* an appropriate response, because it merely solidifies in them the notion that the law is about cruelty and impersonal machinery of injustice, rather than an attempt to approximate justice as well as imperfect human mechanisms can do. Because remember, in a democracy the legal profession is a creation of the “mob” that you so disdain, and can be eliminated just as easily if this “mob” that you disdain decides that the legal profession no longer provides any approximation of what the “mob” that is the population in a democracy is interested in — which is justice, not law.

  53. SHG

    That is utterly irrational gibberish. Everything after “Look…” is normative crap. You suffer from severe Dunning-Kruger Effect.


    But name-calling of those seeking justice is *never* an appropriate response, because it merely solidifies in them the notion that the law is about cruelty and impersonal machinery of injustice, rather than an attempt to approximate justice as well as imperfect human mechanisms can do.

    So you would feel better about your fragile self-esteem if, instead of calling you pathologically clueless because you’re, well, pathologically clueless, you would prefer if lawyers rubbed your tummy and told you were brilliant but intellectually challenged by an unfortunate confluence of lack of education, knowledge, reasoning and critical thinking skills?


    Because remember, in a democracy the legal profession is a creation of the “mob” that you so disdain, and can be eliminated just as easily if this “mob” that you disdain decides that the legal profession no longer provides any approximation of what the “mob” that is the population in a democracy is interested in — which is justice, not law.

    Yeah, no. Law (and lawyers) came about as an alternative to “might makes right,” which was good for the mob unless you wound up on the wrong side of it one day, and they burned you at the stake. So while the mob could, theoretically, take over the law (like it did briefly in France after the revolution), it turns out that the only thing worse than lawyers are non-lawyers. And again, though you seem wholly incapable of grasping this concept, what you call “justice” may not be what anyone else calls “justice.” Not possible because you know you’re right and justice is whatever you say it is? Well, okay then.

    Mind you, we share the same perspective of what you call “justice,” so it’s not like I disagree with your goals, but that doesn’t change the fact that you’re totally out of your mind. So if that proves your point, consider it proven.

  54. Badtux

    There you go with the name calling again. It’s your blog so you can do that, I’m just stating that it’s not helpful in dealing with the “mob” that is the electorate who, I might remind you, *are the only reason the legal profession exists*. Yes, I agree that rule of law is preferable to rule of mob . But this isn’t how you support rule of law.

    Again, it’s not about me. I don’t need anybody to rub my belly and tell me I’m a nice penguin. It’s about educating the public. Calling the public names and saying that what the public believes is “normative crap” is *not* educating them. It’s just calling the public names.

  55. Bruce Coulson

    But there’s a problem with that as well. It’s fine when one is dealing with matters of professional training (whose opinion should you listen to in how to deal with a problem; a trained professional or your cousin Vinnie who read a lot of books on the subject?).
    But when the issue is how should a society deal with or react to a given situation, it’s more problematic. ‘Yes, you’re a member of this society and required to live by our rules, but since you don’t have the requisite qualifications, you don’t get to have any opinions on those rules; you either live by them or leave, no questions or debate allowed’ isn’t going to work too well absent a lot of force. The Zimmerman verdict, whatever one may feel about it, or their professional opinion, is going to affect society, if only by virtue of how people are reacting to it. Whether things should be this way is moot; societies have unwritten rules as well as codified laws, and people are governed by both.

  56. SHG

    You mean those unwritten rules like obey the cops or get beaten?  No one says any particular member of society doesn’t have the opportunity to opine about the rules that govern society. They do. But they have to have a basis of knowledge before having an opinion. Without knowledge, it’s just noise.

    That doesn’t mean they have to be lawyers. It does mean, however, that they can’t live in their own warm and fuzzy fantasy world, create their own reality from whole cloth, and expect their opinion based on that to guide society to enlightenment.

  57. Badtux

    In a democracy it’s impossible to enforce that the population lives in the real world rather than a fantasy world, and everybody gets an opinion, regardless of how ill-informed and based on nonsense their opinion is. That’s the real world that you live in. Sneering at that might be self-satisfying, but is not helpful. Attempting to educate might seem futile, but the alternative is bad laws to deal with as said population, via their ballots, elect politicians who write their whims into law. That’s reality. Sorry about that.

  58. SHG

    First, the mob isn’t “the only reason the legal profession exists,” so stop saying that. The mob could kills all if it wanted to, but we don’t owe our existence to the mob.

    I go far out of my way to help non-lawyers to understand the mysteries of the law, the vagaries of language, the unintended consequences of simplistic decisions and false assumptions. I try pretty darn hard to be helpful, and be nice about it in the process. But when the reaction isn’t “thank you,” but JUSTICE!!! WE WANT JUSTICE, AND YOU LAWYER DON’T GET IT, it’s then past the discussion phase and into the flaming nutjub phase.

    Does it please “the mob” (because it’s never the mob, but one flaming nutjob at a time) to be told that they aren’t as brilliant and right as the believe themselves to be? Of course. But then, to tell them otherwise would be to lie to them. I prefer not to be liar. And it’s not name calling, but a factual assessment of their knowledge, education and experience.  Just as they don’t get to instruct physicians how to perform brain surgery by using that knife thingy, they don’t get to be taken seriously by lawyers, at least after a couple of nice tries explaining, when they explain that it’s all  about justice.

    To use Bennett’s the phrase again, I can explain it to you, but I can’t understand it for you.

  59. SHG

    Sneering? Nobody sneers. But it’s a lot like trying to educate you. You are quite sure you know better, so you refuse to learn and keep on insisting that you’re right. So I can’t educate you? Fine. Why are you still writing comments? Do you think you should be educating me about the law, based on your penguin-fu? 

     

    Attempting to educate might seem futile, but the alternative is bad laws to deal with as said population, via their ballots, elect politicians who write their whims into law.

    And you don’t see what’s a bit off about this sentence?  Amazing.

     

  60. Badtux

    That’s democracy for you. It sucks that ignorant rubes can elect just-as-ignorant lawmakers who then write nonsense based on whims of the mob into law, but the alternatives to democracy suck worse. My point is that the legal profession as a whole (not necessarily you personally but as a whole) has failed to do any concerted effort to educate the public, and what you’re seeing is the inevitable result of that. I’m not sure what your own point is, other than to call the majority of Americans ignorant rubes due to their fundamental misunderstanding of the law, which is helpful… how?

    As for why I continued commenting, I was refining my own thoughts. Sorry to use you as a sounding board, I think I’m done now so I’ll leave you be :).

  61. Bruce Coulson

    Well, actually… Since there are always unscrupulous types who can provide answers to issues that worry the body politic, that noise can be turned into action. (It may well be action that the original complainers don’t much care for, though.)

    And many times, the disapassionate legal answer, no matter how correct, comes across as ‘You’re not a lawyer, you don’t have the right to express any opinion on the issue.’ (Note I’m not claiming that this IS what is being said/implied, or that you are doing so, here or elsewhere.) And even when perfectly justified, people tend to resent being told off in such a fashion…even if they deserved it. Then someone comes along and offers to make it all better, if they’ll just sign over all these pesky things like their legal rights to them. And if they’re angry and unthinking (or scared) enough, they’ll do it.

  62. SHG

    Democracy doesn’t suck. It has obligations that go along with it, like learning sufficiently to exercise the franchise intelligently. The problem is people love their opinions, but don’t like to do the hard work of thinking that goes along with it.

    And I agree that the legal profession has done a lousy job of educating the public. And the public has done a lousy job of learning. There’s plenty of lousy to go around.

  63. SHG

    People tend to resent anything other than, “you are soooo right, and darn good looking too.” So we could tell ‘em that, bask in the confirmation bias and popularity, and be the source of ignorance. Or try to be honest, truthful, accurate, and hope that someone out there appreciates it enough to learn from it.

    Or not. Say, nice hat, Bruce. Makes you look exceptionally intellectual today.

  64. C N Nevets

    I’m not sure I’ve seen evidence that that passionate folks of the pro justice mob have any inclination toward wanting to learn. They’ve had other opportunities, but didn’t care to see past the smoke from their own hearts, on fire for justice.

    As an educator, I admit that there’s only so much that be done in the name of educating those who do not wish to be educated.

    And as a non-lawyer, I admit that, no matter how interesting I find this blog, it’s purpose is not to educate me but to give its author a place to write about things that interest him for his own amusement. Whatever education I glean from that writing is pure bonus.

  65. SHG

    Shh! I’m trying to make myself look more magnanimous than I really am. Let’s ixnay on the amusement-tay. Yeah, I don’t know pig Latin. Sue me.

  66. Bruce Coulson

    Yo ho. I’m thinking of ditching my day job and becoming a pirate, but I can’t decide on which eye I should put the patch over.

    And just because reason has (usually) generally prevailed in tempests of this type is no guarantee that it will always do so. Granted, often all one can do is tell people what they need to hear, rather than what they want to hear (something the media has long since abandoned, it seems). But sillier ideas than the Zimmerman verdict have to been used to gain power in the past.

  67. Rick Horowitz

    Watching you try to educate idiots is, if nothing else, entertaining.

    But he’s already shown that he’s never going to get it. *sigh*

    And I love the part where idiots — this is partly why I wrote my last blog post — seem to think that when they make long-winded, or implied, (or both as is usually the case) insults it’s okay, but when you or I cut to the chase and point out that they are idiots, or flaming nutjobs, or whatever other label fits, we’re the bad ones.

    Which, indirectly, sort of proves your point about the word “justice,” too, I think. Just substitute “insult” or “insulting.”

  68. jon

    I disagree that the argument is irrational gibberish. It is a rational POLITICAL argument so dressed up in delusional self justification that it appears to be gibberish. Let me translate: Sometimes you just have to throw the prisoner to the mob so they don’t burn down the jailhouse.

  69. SHG

    Oh. So that’s what he was trying to say. Thanks for interpreting.

    Didn’t he ever read To Kill a Mockingbird?

  70. hernanday

    You claim the case cannot be tried again due to double jeopardy. I have several questions about that
    1. Can he be tried on the felony child abuse charges with a weapon. Although the issue was brought up a trial, it is technically not double jeopardy because he was not charged, tried, nor acquitted on that charge. In fact the judge blocked that charge from going to the jurors because she said it was not brought up earlier?
    2.Could the verdict be appealed. Usually appeals are not considered to violate the double jeopardy clause?
    3. Could Zimmerman be charged with brandishing a weapon

  71. SHG

    First, these are “comments,” not “questions.” Questions are what lawyers get paid to answer. Stupid questions cost extra.  But being in a generous mood today, I will answer nonetheless.

    1. He cannot be tried any charge derived from the same facts upon which he was acquitted. He could be charged with a different crime provided it could not have been properly joined in the same accusatory instrument. If it could have, but wasn’t, it’s gone.

    2. No, the verdict cannot be appealed. The prosecution can never appeal a jury verdict of not guilty, and whoever told you they are “usually…not considered to violate the double jeopardy clause” is in violation Darwinian Theory.

    3. No.

    If you have any further questions, please let me know and I will send you a retainer letter to sign and return with your advance payment.

    1. ben

      I don’t get how the double jeopardy clause should prohibit an appeal by the prosecution – AFAIK the defendant may very well appeal a conviction, and why should a judgment in the first instance have a stronger force depending on its direction? Seems just a matter of res judicata to me, not a fundamental “ne bis in idem” issue…
      We have no trouble with the prosecution appealing acquittals here in western Europe, and I’m rather shocked that matters of this importance are not taken care of at higher levels of jurisdiction in the US. After all, it’s not only important to ensure that defendants’ rights my be guaranteed through appeal, but also that criminal law be applied in a sound way to achieve its goals. Whatever that means in this case, btw; maybe OJ Simpson was a better example for seedy-but-not-apealable acquittals.

      1. SHG Post author

        Because we have a Constitution that says so, that protects the rights of the individual from the power of the state.

        1. ben

          sounds like an absolute preponderance of individual rights over the state’s power to me – then why not abolish criminal justice altogether?

          1. SHG Post author

            That would be so true, provided we ignore that 97% conviction rate and the largest per capita and absolute prison population on the planet. What you apparently ignore is the vast differential in the power of the government versus the individual. That’s why we have a Constitution that limits the power of the government, because it’s so overwhelming in comparison to the ability of an individual to defend.

            If you want to have something remotely resembling an intelligent opinion, I’m afraid you will have to learn a whole lot more about the American system than the double jeopardy rule and the Zimmerman acquittal.

            1. ben

              I think any discussion is better served by rational arguments than by ad hominem attacks.

              The conviction rate seems alarming, and might have to do with the rate of guilty pleas or other issues, but that’s barely the point.
              Nobody advocates for more convictions in absolute numbers, but what wrong does a more reliable justice do? Unless you believe that jurors are, by some divine wisdom cast upon “the people”, infallible, a possibility for review would serve precisely the purpose of justice.

              I couldn’t agree more on the need for balance in criminal trials, but an accurate one, not gifts distributed to one category of defendants to make up for structural injustice done to another category.

            2. SHG Post author

              My apologies. I didn’t realize you were as unfamiliar with the concept of ad hominem attacks as you are with the American legal system, or so fragile that you were incapable of recognizing your substantive ignorance as being an impediment to thoughtful discussion, or so lazy that you would rather argue from a position of ignorance than first learn what you’re talking about before pretending to have an opinion. Before you can engage in rational discussion, you would need to know what you were discussing. You don’t.

              Because I’m a good guy, I’ll explain. You are a moron and therefore anything you say is stupid. That, Ben, is an ad hominem attack. On the other hand, because you are clueless as to how constitutional rights in the United States work, your “opinion” is uninformed is not an ad hominmen attack. It is a statement of fact. Entirely different thing. See how that works?

              Now, to your supposition of “a more reliable justice,” the American legal system functions on a premise that it is better that X number of guilty people go free than one innocent person is convicted. It is a fundamental premise of our system. Had you taken a bit of time to learn more, you might have become aware of this.

              The American system accepts the premise that constitutional rights may result in guilty people being acquitted. That’s the choice underlying the United States Constitution. This is basic stuff here, whether you grasp it or not. You don’t have to agree with it. Your opinion isn’t relevant. We won’t be changing out system because somebody named Ben on the internet doesn’t think it’s “justice.”

              Now, off the tinkerbell land with you, for the lazy, ignorant and fragile. Your comments violate a basic rule here, that no one should post anything that makes other people stupider.

  72. MCB

    If Zimmerman was a felon in possession you can bet your posterior the US Attorney would have filed charges. And Zimmerman would have no defense to that charge. Then, at sentencing, the prosecution would argue for an enhancement for the murder which they could argue for with no jury on a preponderance standard.

  73. John Burns

    Personally I feel the “double jurisdiction(?)” violates the Fifth Amendment–but I am not a scholar either of American history or the law. Despite my efforts I have not been able to find the origin of this. I would appreciate knowing the source. To me it seems to violate the spirit of no double jeopardy. I assume this has been around for quite some time.
    As for this case, I believe justice was served. I doubt even Zimmerman knows for certain what transpired. As for the media their goal seems to be to keep people emotionally stirred up and confounded. Thank God for various blog and alternative news sources. Thanks for a good article.

  74. SHG

    I think I fixed the link. If not, let me know and I’ll use a cached version. Sorry. Yes, GoDaddy (Yay!).

  75. C. N. Nevets

    Thanks for the re-link. It worked.

    I remember when I was but a teenage law nerd and I learned that a hung jury gave the state a second chance. I said, “But that’s double jeopardy.” My teacher said, “No, it’s not.” And then a few years later I learned about dual sovereignty. I said, “But that’s double jeopardy.” My teacher said, “No, it’s not.”

    Obviously, we have to operate under the law as it stands, but I will read further into the case law on this because I’m still confounded as to how the plain language of the Constitution has been bypassed here. It doesn’t even seem fuzzy or borderline or controversial.

  76. SHG

    We lawyers have a terrible tendency to embrace black letter law as if it’s an immutable object. Heller, Brown v. Board, etc., tells us that it may be rare, but it can change.

    Dual sovereignty is a blight on the constitution that needs change. Bear in mind that it also served as a way to prosecute Klansmen who were acquitted for atrocities by their local courts, so it’s a two-way street. Still.

  77. C. N. Nevets

    Oh, I definitely understand the popular appeal of having a second go at bad guys, actual or presumed.

    But I’ve never been able to applaud abusive law simply because I dislike or even detest the abused party.

    And I wonder why I don’t have many friends…

  78. John Neff

    My recollection was that the FBI was supposed to investigate corrupt practices at all levels of government. I don’t understand how they were given that authority but that may have given them the opening that they have subsequently exploited.

  79. Federale

    Tragic only in the sense that Trayvon Martin’s violent nature led him to attack George Zimmerman. That is why Trayvon Martin died. He was an angry violent racist who thought he could give the “cracker” a beat down. I don’t know if that meets the Greek playwrights’ definition of tragedy, but it is the reason Trayvon Martin is dead. He committed suicide by attacking an armed man. Tragedy, maybe, bad decision making process, more likely.

  80. Walter

    Although I am not a lawyer myself, I have worked in the legal profession for years and I have been amazed and upset m,any times by the way cases have been turned on their head based upon a few words spoken by a reporter who isn’t cognizant of all of the facts and how the perception of the public can be so incredibly off. For example, a few years ago I read the published opinion which reviewed the case against McDonald’s (I know this is a civil matter not a criminal one, but for my point this should not matter) for serving coffee that was too high in temperature which resulted in a patron being burned. People were and still are infuriated by the outcome which found McDonald’s liable for doing this, but if those same people actually bothered to become informed about the facts as they really existed they might change their minds. After all, the store management in question had been warned by many different customers over a significant period of time that they felt that their coffee was too hot, and their complaints were utterly ignored, and no investigation or followup was performed. In this day and age how can that ever be justified? Do all the naysayer’s understand just how hot 185 degrees really is? Apparently not, but they might begin by recalling their own body temperature is normally merely 98.6 degrees. The point is that overwhelmingly popular opinion is that this case was decided badly and it is used in editorials, news magazines, and personal conversations on a daily basis, even years after the fact , as an example of the legal system getting it wrong, when just the opposite is the truth. I submit that if any reasonably intelligent unbiased individual actually reads the facts behind the decision rather than merely reacting to the bald faced conclusion on its face they would have to agree that the correct decision was made, and in this instance it doesn’t even take some special understanding of a legal nuance to get there. People are sheep and it is up to those who are doing the informing to keep their stories straight and noninflammatory so that the professionals on the inside can even have a chance at educating the public at large without already facing a lynch mob that has decided the same case based upon their commentary. As for Lisa, as articulately as you might have expressed yourself, you were out of your depth from the start and too resistant to being educated to be considered for more than a moment in time. Ultimately it does make a difference if one is convicted versus merely being arrested or accused of a crime. With no conviction being on the books the government regulatory agency involved was bound by the existing rules , and they could never have considered Zimmerman’s mere arrest for various alleged crimes even if they had access to records that would detail the same , which incidentally they did not have, so your conclusion that his permit should have been pulled cannot stand. Do not be a mere sheep and get caught up in the emotional, but research the actual facts and then and only then form an opinion which you can freely express and you might be taken seriously, until then it is better to remain silent and not reveal your own educational inadequacies. Do you honestly think that you are equipped and able to argue with a trained and licensed attorney about the law when you are not trained in the profession yourself? I assure you that you cannot, and you would be better served if you listened and tried to learn from them rather than fighting the reality that you have already lost the argument before you even started. You might not have liked the verdict but nonetheless there is really no question that it was the right one under the circumstances, as unfair as that might seem to you, and personally I would not have it any other way.

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