The George Zimmerman Verdict – A View From the Jury Room.

scalesofjusticeIn yet another example of the news media botching its legal analysis of another high profile Murder trial, there is outrage, rioting and possibly undue violence occurring on the streets of America as we speak as a result of another jury doing exactly what it was supposed to do with evidence that it was presented with in the George Zimmerman Murder trial.

The news media has one incentive in covering trials, ratings. If it serves their purpose to stoke anger over a case and turn an altercation between a white man and a black kid, into a statement about race relations , they do it. Thousands of people are rampaging the streets now because the media has failed, just like it failed so many times before, to truly educate the public about what happens in court rooms that lead to verdicts like this one.

I empathize with my friends and colleagues who feel this death was solely about race. It played a part for sure. No young person should die at the hands of a gun, but this former prosecutor, and current defense attorney sees this not just as a case of race, but as further evidence of the plague of our addiction to guns.

This is a case of our gun culture run amuck. The fact that Trayvon was Black and Zimmerman White, has no bearing on what this jury did. Juries make decisions based on the law and the facts. Period. That is what juries are supposed to do, and mostly do so correctly if everyone is playing by the rules.

Here is a quick survey of the law that applied here and my take on why the jury did what it did.  Let’s start with Homicide. The news media uses this word liberally when reporting on crime without defining it. Homicide is actually not a crime. It’s a legal definition with Latin origins that simply means the death of a human being at the hands of another human being, like Suicide which is the death of a human being at the hands of oneself. Neither are by definition criminal. They are simple definitions.

Of course any Murder analysis first starts with a Homicide. Clearly, here, a Homicide occurred. Next, the evaluation is whether this was in fact a Criminal Homicide. Law enforcement in this case took a very long time in making an arrest in this case, and took as long as they did to file the case in all probability because they did not feel this was a case of Criminal Homicide.

Only when the media breathed heat on this case was an arrest made. If the media had not been hovering, I doubt Zimmerman would have been arrested. Not because he was not guilty of something, but because when cases are murky, like this one, sometimes Law Enforcement exercise their discretion to not arrest.

What happens next in a Homicide, if there is a criminal investigation, is the case goes to the District Attorney to evaluate whether they want to file criminal charges.  Prosecutors evaluate cases based on one thing; can they win the trial. Many times investigations of all kinds go to District Attorney’s all over the country, and many righteous cases are never filed because they cannot be proven. D.A’s may believe something criminal happened, but if they can’t sell a jury on it because the evidence is insufficient many cases are not filed. This is not common in Murder cases. But it happens all the time.

In reviewing this case the first analysis would be whether the Homicide was a First Degree Murder. This case was not. First Degree Murder requires a plan, deliberation, and forethought. A good public example of a classic First Degree Murder case is the Scott Peterson trial in California. He had motive to kill his wife, he planned it, he committed the crime, then tried to cover it up, a textbook First Degree Murder.

Next the D.A would have looked at Second Degree Murder and this is where things become murky. Second Degree Murder can be charged in a variety of fact patterns. The classic law school example of Second Degree Murder is shooting a gun into a clearly inhabited building resulting in a death of an occupant. The person may not have pointed the gun at a person and shot, but he shot a gun into an area where a death was a probable result.

Second Degree Murder, like First Degree Murder also requires an intent to kill. The law uses the word Malice to define Second Degree Murder. Defining Murder is an analysis, always, of the state of mind of the killer. Period. It’s what was in the mind and heart of the actor that motivated the death that juries are required to determine.

This is the primary issue juries all over this country deliberate on in a Murder case. They do not and should be evaluating the color the skin of the actors unless a hate crime is alleged. Neither is gender or religion something juries should properly consider in defining a crime. It can certainly be a motive if the case is a hate crime, but this one was not alleged as a hate crime. The media turned it into a hate crime.

Manslaughter is a little trickier. Manslaughter has varying degrees and is different from state to state. There are many theories of Manslaughter. Generally the difference between Murder and Manslaughter is again a state of mind. Negligence is usually the state of mind in a Manslaughter.  You can have gross negligence or simple negligence. Car accidents are very simple negligence.

Negligence can be criminal or it can be civil. For a crime to be a criminally negligent homicide it must be extreme negligence. A classic media example of a criminally negligent homicide was the case of Conrad Murray, the Doctor responsible for Michael Jackson’s death. Murray had no intent to kill, ergo no Murder. But he was convicted, rightly, of Manslaughter because be was criminally reckless.

So let’s apply this to the Zimmerman case. And I admit I did not follow it on a day to day basis. But as the veteran of nearly 85 criminal trials I didn’t need to watch it from wire to wire.

The D.A’s office in Florida charged Second Degree Murder. I never thought this was a Murder case. The facts did not support Murder and this is why.  Zimmerman’s intent when he confronted Trayvon Martin was to act as a vigilante, his motive, negligent as it may have been, was to prevent a crime. I am certainly not arguing he should have been able to do this, but the most egregious wrong here was his ability to legally holster a gun and take it into a fist fight. But he did not initially engage Martin with an intent to kill. That’s how I would see it a juror.  Not as a lawyer, as a juror.

From the jury’s standpoint, there was clearly some kind of a physical struggle. Zimmerman had injuries, although not serious, so from the jury box, this is a fight. During the context of this fight Zimmerman discharged his gun, and a young boy is killed.  It’s not as if Zimmerman chased him down the street and just shot him. Something else happened and that something else is what the jury got caught up on.

I never saw a jury considering Second Degree Murder because of these facts. Juries have the evidence they hear in court and the evidence of intent to kill from the outset was not there. He had an intent. No doubt. He had a gun. No doubt. But remember, in America, the tie always goes to the defendant. It’s called reasonable doubt. And there was reasonable doubt here because of the fight that occurred.

Not Guilty does NOT mean innocent. It means, there isn’t enough evidence to convict, and in a murder case a good jury, with facts that are not clear are not going to convict someone of a Murder if they aren’t sure. It’s a heavy responsibility to call someone a murderer as a juror. It has steep consequences that often juries are not privy to.

That’s why OJ was acquitted, and Casey Anthony and now George Zimmerman. None were innocent. They were simply legally Not Guilty based on the evidence the jury heard because our Constitution gives the defendant the benefit of the doubt as it should.

Personally I thought this jury would compromise and convict Mr. Zimmerman of Manslaughter but this is why he was acquitted. Because there was a fight between Zimmerman and Martin a jury gets to hear self defense instructions. This is where the case turned. Generally a person has a right to self defense in a fight.  That right is different from state to state. Florida has what are known as stand your ground laws, meaning the jury would have received an instruction that said if attacked you have the right to stand your ground and fight.

In California, however, you can only use as much force as is necessary to confront the threat. Similarly the person who seeks the quarrel often is not allowed to claim self defense.  What likely happened in the Zimmerman jury room is that jurors simply got hung up on the self defense instructions and that is why Zimmerman walked free and was not convicted of the Manslaughter charge.  They had reasonable doubt and therefore did what they thought they were required to do by law, give the benefit of the doubt to the defendant.

So where did this case go wrong? The first error was the heavy handed approach of the D.A in Florida filing this case as a Murder. If they had filed this as a Gross Manslaughter, perhaps the jury would have been more inclined to convict. In Murder cases, juries are particularly worried, rightfully so, that they could cost a person their life.  I have no problem with the “stand your ground” law. However, standing your ground with a gun is a different scenario.

From my perspective the lessons of the Trayvon Martin case were wasted. Again, race was a relevant issue but the more relevant and powerful social issue was gun control. Sure, Zimmerman may have been a bigot. He may have stereotyped Trayvon Martin as a young black hoodlum. But had the State of Florida not given this guy the right not only to own a gun but to carry it, Trayvon Martin might have been a bit battered and bruised, but he would be alive.

This country has been engaged in one of the most important gun control dialogues of the last 50 years and that’s what this case should have been about. The mass proliferation of guns in this country and state law that allows vigilantes like Zimmerman to actually carry weapons into a fight is what killed Trayvon Martin. Was race a part of the equation? I can’t say. I wasn’t there. What I am clear about is that a gun was there the night Trayvon Martin died. And it didn’t need to be.

Young Black and Hispanic kids are gunned down daily on the streets of our cities and gun control, if not eradication is what I would like to see the media outraged about. I am outraged that Trayvon Martin is dead. I am as outraged that thousands of Black and Hispanic kids are gunned down in our streets every year because we as a society cannot overcome our addiction to guns or take any meaningful efforts to change it.

George Zimmerman should have been found criminally liable for this death in some manner. He wasn’t. But that does not mean that the jury erred or the system broke. It simply means that a jury made a decision based on the facts they heard in the courtroom and followed the law, and gave the defendant the benefit of the doubt.  That’s what juries all over this country do every day and this trial lawyer is not shocked or surprised.  If we want to address the right issue, lets talk about guns and end this plague once and for all.

Brian Michaels is a Criminal Defense Attorney and former Prosecutor with the Los Angeles City Attorney and can be found on the web at

Brian Michaels

About Brian Michaels

Brian Michaels is grew up in the Fairfax District of Los Angeles in the glory days of the late 1960s and 70s. Only a stone's throw from the Sunset Strip, Michaels had an early education in rock music. Michaels attended his first punk rock show at the age of 14 at the Whiskey a Go Go and has been going strong ever since. Brian is a defense attorney by profession but adds photography and writing to a list of his many passions outside of the his job. Brian can be found on the web at
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