Sunday, July 14, 2013


Here's what we know about America 2013: people are still not judged by the content of their character, but by the color of their skin. Race is still the lens through which Americans view events, the criminal justice system, the police, the courts, lawyers and judges. Anger by African-Americans for race based inequalities may have dissipated a bit with the election of an African-American president and advancement of other minorities in other professions, but it still bubbles hotly just beneath the surface of public consciousness and drives behavior. 

In our small corner of the world, what we are concerned with is justice and fair trials. For us, the possible tragic outcome of this case are future jury verdicts that do not reflect the facts of the case. Future defendants-black, white, hispanic, whatever, could pay with their freedom over anger about the verdict in this case. 

We've seen in media (social and standard) calls for the State to appeal the verdict, and criticism of the prosecution for not forcing the defendant to testify and explain his behavior. Shocking ignorance of basic constitutional rights to be sure, but we as legal practitioners ignore the feelings of the general public at our own peril. The burden of proof beyond a reasonable doubt can be threatened by ignorant, populist politicians, and undermined by disgruntled jurors one case at a time. 

We've yet to reach a level of non race based thinking where a white man can kill a black man in self defense and not have the disgraceful tragedy of the killings of Medgar Evers be resurrected. 

Trayvon Martin was a boy. His life had barely begun. But Trayvon Martin was also  (in police parlance) a young black male, and his presence in neighborhood was deemed a threat to a man who had a gun. Neither Martin (who apparently beat up Zimmerman) nor Zimmerman who clearly escalated this encounter, are blameless. Trayvon Martin paid for the misjudgments that young men often make with his life. Zimmerman paid for the tragedies that guns often create with his life inexorably changed for the worst.

What's the tragedy here? Martin was scared by Zimmerman and responded by attacking him. Zimmerman was scared by Martin and responded by killing him.  The tragedy is that we need to stop being scared by each other. We need to stop shooting each other. We need to stop carrying guns wherever we go. We need to stop evaluating every encounter between two different colored people in 2013 based on their race, and most importantly, we need to stop screaming about throwing out cherished constitutional rights every time a case turns out differently than we wanted. White americans decried the justice system when OJ Simpson was acquitted and african-americans are now upset because Zimmerman was acquitted. 

These cases might well be the cost we pay so the thousand or so criminal trials that happen throughout our country every month- trials no one pays attention to or tweets about- resolve in a just and fair way. No defendant in the future should be convicted because Zimmerman was acquitted. That would be the real tragedy if that was the legacy of Trayvon Martin's tragic and untimely death. 

See you in court. 


Anonymous said...

This case should never have been filed. The State knew the evidence that would come out at trial. The State knew or should have known that they could not disprove Zimerman's self defense claim beyond a reasonable doubt. Instead they chose to file a case and used emotions rather than evidence to justify a conviction. The state should have done what prosecutors do every day; they should have sat down with the family at the beginning and explained why they could not prove this case. A case should never be filed based on politics or emotions, it should always be based on evidence.

Bill said...

Thanks for posting this.

As a non-lawyer, I'm wondering if this case would have even been filed had both Zimmerman and Martin been black...or had both been white? Anyone care to weigh in on that?

And while I'm not a lawyer, I know that the SAO declines to prosecute many cases because of a lack of evidence. There didn't seem to much evidence in this case.

It also seems to me the state filed this case because of a well-orchestrated very vocal campaign by various factions to pressure them into doing so.

Anonymous said...

I am immensely disappointed that those who only asked for an arrest and a trial are now asking for more, even though the jury and the system have spoken. It is time for a community to heal and further agitation of this situation serves no one's interest, except those who chose to promote themselves at the expense of those who are directly involved.

The thought process that justice is only served, if you get the result you want, is a perversion of the belief that the system operating as it did here IS JUSTICE. One man's justice is another man's outrage.

Without doubt a community, yes even a nation, is divided over the events which occurred and the results of the trial. And certainly, if it is necessary, an examination of the role race plays in our society is appropriate. But further criminal litigation would only serve to fan the flames of racial divide, and serves no useful purpose, where a jury has heard all of the evidence and found insufficient cause to find Zimmerman guilty.

This is a tragedy for all concerned. There is no governmental misconduct here, as in Rodney King. There is no evidence upon which the Department of Justice can base a claim that Mr. Martin's death was racially motivated. And most importantly, the most conclusive evidence would seem to indicate that Mr. Martin was the aggressor. Use of excessive force by Zimmerman is not sufficient for the Department of Justice to interject itself, and those who are promoting such an action would make this nothing more than a political trial and agenda.

It is time for all of us to move on to solving real problems, not one created for self- promotion and to satisfy the personal agendas of those who wish to extend their own celebrity.

Jeffrey Swartz
Professor of Criminal Law
Thomas M. Cooley Law School, Tampa Bay Campus

Rumpole said...

Bill- the statistics indicate that the least likely type of case to be filed is this case- where a white person kills a black person. The most likely type of case to be filed is where a black person kills a white person. Those are the statistics and they don't lie.

But the danger is - as we see here- trying to right the wrong of statistics by filing this case just because it was a white defendant and a black victim. THIS case should not have been filed. That does not mean there aren't dozens or perhaps more cases where white people were wrongly not arrested when they killed a black person.

The moral of this tragic story is that every case and every defendant and every victim needs to be treated as an individual, and not a statistic and not as a member of a race.

The african american community drew a line in the sand on this case, for understandable reasons- Trayvon was a child, carrying candy, on the way home from the store when a man, with a known past as someone who is suspicious of people- perhaps black people, encountered Trayvon and ultimately killed him.
But when you look beyond the surface, this was-sadly, a fairly simple case of self defense.

Bill said...

Thanks for taking the time to answer, Rumpy.

DS said...

The Jury has spoken . In 25+ years as a Criminal Defense Attorney , trying over 160 Felony Jury Trials, I have found that The Jury overwhelming gets it right based on applying the Facts deduced from the Evidence to the Law.

BUT , the comparison to Medgar Evens or other civil right victims like the poor guy who was dragged to death behind a car is too much. Some commentators have gone to far and are just wrong.

You are allowed to walk up to a stranger in you neighborhood ( especially if lots of unsolved resent burgs) and ask them what they are doing there or to wait for the police.

That IS NOT illegal not being the Aggressor. It is being a good neighbor.

Attacking a raggedly ass cracker , breaking his nose , being on top of him bashing his head on the sidewalk IS a crime of violence.


PS: To my critic on caps. Imagine me speaking to you and the caps are my verbal emphasis. IT is a matter of style , I DONT LIKE the Rules.
I write` as I speak, and I am a successful Professional Mouth Piece ( batting about 72% wins in jury trials)

Rumpole said...

Let's just talk about race, in the open, pure and simple. No bullshit.

Should Zimmerman have been convicted solely because he's a white man who killed a young black man?

Should Zimmerman have been convicted solely because he's a white man and for nearly a century and a half 1776-1960's, white men notoriously killed black men and got away scott free?

Should Zimmerman have been convicted solely because white men are statistically less likely to be charged criminally in the death of a black person, even today, especially in the south?

If you are a minority and have felt the sting of racism, and wanted to see Zimmerman convicted for any of the above reasons, you should examine your premise about race and racism.

Anonymous said...

Rump do you believe as Zimmermann's
lawyer said that this case would not been have brought if Zimm was black? I heartily agree and disagree. No case if victim was also black, but definitely a case (and likely a conviction) if victim was white.

Anonymous said...

I don't believe a case would have been brought if the race were reversed. If Zimmerman had been black and Martin white, the State would have met with the Next of Kin and explained why the case could not be prosecuted. There would have been no protest or media involved, shouting racism and demanding that charges be filed. Prosecutors have a duty to file cases that they believe they can prove beyond a reasonable doubt, based on the facts of the case, not the racial makeup of the victim and defendant.

Anonymous said...

DS - I disagree. Zimmerman put into play a situation because, brazen by the fact he was armed, he believed he was free to interfere with another person when he had been told by the police not too. The responsibility for Trayvon's death is his. If he were black and Trayvon white this would have been a slam dunk for the State.

The reality is that the value of a black life is not as high as that of a white life. That's the state of American justice today.

DS said...

I have lots of cases where the Victims of the violence are Afro-Americans. 95% of those case have Afro-Americans accused of doing the violent actions.
The Evidence, The Facts, The Law and a Defendant's Priors usually determine the results. Not the Race of the Defendant.

Anonymous said...

I'm sorry, what exactly is an "Afro-American"? A person who wears an afro? And since when are there statistics on such persons? Before we start talking about race, let's at least know who we are talking about.

And I think the first person who exercised self-defense, was Mr. Martin. As a woman, who has been followed home and to my car, I have always confronted the follower--no need to be hit in the back of the head as I'm "minding my own business."

Anonymous said...

And what is the race of the mayority of the victims in your cases. I would bet that the mayority of cases are black on black violence. Where is the outrage and media in cases where a young black man is killed by another young black man and witnesses are unwilling to cooperate with police.

Anonymous said...

Spend two weeks in Juvie on 27th Avenue and tell me who commits burglaries in Miami Dade County: young black guys.

If you care about black Americans then try to help figure out why this is so and how we can stop it. Surely poverty, racism, shitty parenting, shitty schools, the breakdown of the family, a debased culture, etc. all play a role.

But don't kid yourself about who commits the majority of burglaries.

And don't become indignant when a neighborhood watch in a neighborhood suffering a rash of burglaries committed by black young men, sees a black young man and thinks "possible burglar?"

Fighting against that is fighting against the human brain itself.

Anonymous said...

DS, you don't know what you are talking about and quite frankly, you sound ignorant.
The cracker comment was stupid and the asshole's injuries were because he attacked an innocent child.

Anonymous said...

To paraphrase Salt & Pepa:

"Let's talk about race baby..."

You almost had it Rump at the beginning of your 11:56 am post.

Hey Very Reverend Al Sharpton: How about coming clean about Tawana Brawley before you stick your dirty nose in other peoples' business? You aren't fit to utter Trayvon Martin's name, you clown.

What happened to Trayvon Martin was a travesty that never should have happened, but the courts have spoken. I am not happy with the decision but it was the correct decision.

Rumpole said...

Do you hate me or Rev AL? Just curious. FYI- Sharpton still owes that prosecutor all of the money on the judgment from the lawsuit. It might be why he commented less on the lawyers handling this case.



The Burden of Proof .....

I do not believe that the result in this case will lead to more convictions. More convictions because juries will lower the bar for the State and find defendants guilty on less than proof beyond a reasonable doubt.

This is not the first high profile NG verdict in our country and it is certainly not the first high profile NG verdict in the same Central Florida area. Two years ago, in a courthouse just a few miles away, Casey Anthony, the last "most hated person in American", walked out of court a free woman because the jury determined that the State had not met their burden of proof. And the bar for the Burden of Proof for the State in the Zimmerman case was not lowered one inch as a result of the Anthony verdict.

Our system is greater than any one case and any one result. Our system of justice, as we know it, shall prevail.

Cap Out .....

Anonymous said...

Bill @ 10:34 a.m., you are exactly right on what happened here.

Anonymous said...


Not you, only Rev. Sharpton. If you listen to Salt and Pepa, you will know the line I paraphrased.

Yes, Sharpton still has that judgment that he has yet to make a dent it. I think that he spends as much money on his hair annually as the judgment is worth. He really is a huge windbag.

I wonder what he would have thought of the defense attorneys if one of them was African American.

Has Jesse Jackson chimed in yet or is he helping his son and daughter in law with their kids before they begin their prison sentences?

Hey American Minority, where are you on all of this?



The Kaufman Trial, 12 person juries, and splitting Closing Arguments .....

to 10:43 PM, re The Kaufman trial and the question about how they ended up with a twelve person jury in a 2nd degree Murder case, instead of a six person jury.

12:50 AM had it mostly correct when they said that both sides stipulated to the 12 person jury.

To expand on that answer. The defense attorney, Bill Matthewman, one of the very best we've had around here in a long, long time, filed an extensive Motion on the issue and Demanded a 12 person jury.

He argued that there is almost no real difference between 1st and 2nd degree murder when death is not sought, and therefore the failure to afford a 2nd degree murder defendant a 12 person jury is unconstitutional on numerous grounds.

Florida is one of the few states that allow a 6 person jury in a 2nd degree murder.

Judge Bronwyn Miller said that she tended to agree with Matthewman but felt that without specific precedent or the state's agreement, she could not order a 12person jury. She suggested that the state may want to consider the defense motion as it raised an important constitutional issue.

Ultimately, the state agreed to the Motion for a 12 person jury.

Great lesson for those of us who are so bored with our practice that we forget sometimes to "think outside the box".

On a separate note, Judge Miller denied the request by Matthewman to permit his co-counsel to do part of the Closing Argument. Matthewman asked Miller for the right to have Al Milian to take half the Closing. Milian had been on the case for much longer a time than Matthewman had. She denied the request stating that she was not aware of any law that required her to do it.

In the Zimmerman trial, the Defense objected to the State splitting their Closing Argument between Bernie De La Rionda and John Guy (Guy had the second close). Judge Debra Steinberg Nelson denied the Defense objection and permitted the State to split their Closing argument between the two lead ASAs.

Cap Out .....

Anonymous said...

With all due respect to 3:32PM, you've just defined the word "profiling".

Anonymous said...

Proof positive that the Trayvon community only cares about white-on-black violence. They don't give a damn about black-on-black violence. It is so sad. For all.

Anonymous said...

My congratulations to Rumpole for a well written argument on this hard issue of racism. No one wins, there is a dead young man, and a white man that will never be the same again, no matter what.
Why do we have to walk with guns, why we do not feel safe no even walking to the store to buy candy, why we only judge the book by the cover and we see the enemy on every corner. I do not know the answer to any of those questions.
I was the 10:23 with the 12 juror question, thank you to all of you who answer. But what is your opinion, is it better for the Defendant on a charge of a second degree murder to pursue such a jury?

Anonymous said...

Hey 2:53: the fact that you would have to make some inane comment about the use of "Afro-American" suggests you are a stupid negro.


The Captain Responds:

to 9:33 PM

Happy to provide you with the information on the issue of the 12 person jury.

Of course it is better for the defendant with a 12 person jury. The Government then must convince 12 instead of 6 of your guilt beyond a reasonable doubt. All it takes is one to hang a jury and cause a mistrial.

Cap Out .....

the trialmaster said...

The fact is that every attorney who has tried murder cases, including PDs have received Not Guilty verdicts on facts much more egarious that what faced Zimmerman.I am sure the PDs would love to have a def with no priors, who was taped several times giving consisent versions of what happened. And that the def was bloodied with a broken nose and other injuries and that there was only a single shot. and that an independent witness testifed that the def was calling for help and was pinned down on cement MMA style. and the fights and weapons that the def texted about never got into evidence. We all should have such facts but an objective SAO would never file a case like that.

Anonymous said...

To 6:14, yes I suppose that is "profiling". Profiling is a stupid word. It means your brain uses categories?

Id hope so or youd be so severely brain damaged that you could not survive.

This morning you "profiled" your wife, kids, car, traffic cops, school bus driver, coffee shop barista, and everyone and everything you saw.

When you walked into court you profiled the person in robes as a judge, the people in the box as defendants, the people in suits as lawyers and the people in t-shirts as non-lawyers.

You profiled an attractive woman as a possible mate and profiled men into another category.

To imagine we can know that our neighborhood is being burglarized by young black men but then pretend our brains shouldnt USE this information is one of the sillier achievements of modern liberalism.

Better to focus on reality -- we do racially profile every single time we meet a human. Let's not demonize that and instead focus on helping find root causes of criminality and eliminating them.

Anonymous said...

An interesting, thought provoking post Rumpole. But if I may -- one of the (many) problems is that a significant portion of the community does not trust the verdict. Wasn't it scenarios like this that gave rise to the insitution of civil rights laws? Check out The New Yorker's article on point this month. An impressive history of the civil rights movement. (sorry for the unofficial plug - but its a good read and reminder of the what was deemed "acceptable" by our socieity just a few decades ago)

Anonymous said...

What would you rather have?
A cola with Judge Scola,
or a shake with Judge Blake?

Anonymous said...


Anonymous said...

A red bull with Rebull

Anonymous said...

Thank you CAPTAIN for your answer. I know about the Motion for the 12 jurors, and I wonder if this matter has been requested in any other trial besides the Kauffman. Has this set any precedent? Do you see this matter coming up on future trials, do to the fact that is very important for the Defense?

Anonymous said...

Just want to make some dinero in Denaro

Anonymous said...

The injustices of the past include incidents where the first black man found after a heinous crime was committed, regardless of culpability, was strung up. The community that has suffered these injustices and continues to be the victims of institutional racism in our justice system attempts to address the issue by calling for . . . . . the stringing up of a token white guy regardless of culpability.

Outrageous for a community that knows injustices first hand to call for a perpetuation of those injustices. For what? So that we're even.

What a stark example of failed leadership on the part of the charlatans like Al Sharpton and Jessie Jackson, who put profit and fame, above the needs of their own community.

It's clear we can't have a frank discussion on race and justice in America. Legitimate discussions about institutional racism in our justice system have been set back a decade because instead of taking the opportunity to talk about these injustices, it's clear the community that is the object of these injustices, fueled by its charlatan leaders, simply called for those same injustices to be visited on the other guy too.


Anonymous said...


Anonymous said...

From 1980 through 2008—

84% of white victims were killed by whites

93% of black victims were killed by blacks

So should I flip out now about white on white violence?

See how nonsensical that sounds? Stop the nonsense of using simplistic evidence to justify condescending behavior.

The black community doesn't need anyone to look down on it. There are mala in se and mala prohibita. We lock up people at astronomical rates that surpass the rest of the world. We determine in many cases who are the criminals through each new malum prohibitum we choose to fashion.

Many prisons were born from old plantations. Convict leasing and chain gangs were popular for the years that the South needed cheap labor. Vagrancy was a crime that allowed the police to lock up whomever they wanted to send them to go work in the fields.

And just as our society was turning into a violent bloody mess during Prohibition, so too, does violent crime rage on during the War on Drugs. We see generations reeling from the oppression of decades past trying to find themselves in a world that is still not free of racism.

We illegalize so many things. We impose the minimum mandatories. We raise the stakes. Cause and effect. People are responsible for their choices, true. But criminality is a dark reflection of many things. Social, political and economic inequality being factors.

Things are never just that simple.