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The Jury System Works – When We Use It

The fact that a jury acquitted George Zimmerman of killing Trayvon Martin does not say much about unequal justice in America - but the fact that a jury considered the case at all speaks volumes.

The vast majority of felony charges, as much as 90 to 95 percent by some estimates, are resolved through plea bargains. This does not mean that such a high percentage of defendants are actually guilty of the crimes charged, let alone that prosecutors could prove their guilt beyond a reasonable doubt. The vast wave of plea bargains that has washed over our criminal justice system is all about scorekeeping and expediency. Judges need to keep up with crowded dockets; prosecutors want to establish high conviction rates. Defense lawyers (especially underfunded public defenders and court-paid private attorneys for the indigent) need to stretch very limited resources to give every defendant the benefit of at least some counsel.

The rest of us play a role, too. If we did not have so many plea bargains, we would need more jury trials, and therefore more juries. If even half of all felony defendants took their cases to trial, the criminal courts would summon us for service at least five times more often than they already do. Are we really prepared to devote this much of our lives to ensure that all our fellow citizens can receive their day - or week, or month - in court?

Like many other people who were aware of the major facts in the case but not closely following the details of Zimmerman’s trial, I anticipated a conviction. Martin, a black teenager, was doing nothing wrong the night Zimmerman, a white man of partly Hispanic descent, spotted him walking through Zimmerman’s gated community in Sanford, Fla. I thought Zimmerman behaved foolishly and recklessly when, after calling 911 because he thought Martin appeared suspicious, he continued to follow him and eventually got out of his car to do so while carrying a loaded weapon. Martin died in the ensuing confrontation. Zimmerman claimed he acted in self-defense after Martin got the upper hand in a struggle. The prosecution was doomed from the start, because there were no witnesses who could testify otherwise.

But where many protesters see racism in everything from the initial police handling of the case to the trial’s verdict, I simply see the jury system at work. The Zimmerman verdict recalls the acquittal, two years ago and a county away, of Casey Anthony on murder charges in the death of her 2-year-old daughter, in which race was not a factor.

A diligent and well-instructed jury is an enormous hurdle for prosecutors to clear. They must prove, beyond a reasonable doubt, each and every element of the crime that is charged. They must also demonstrate, in appropriate cases, that the defendant was responsible for his actions, and that self-defense was not a valid excuse. This is apart from Florida’s much-discussed “Stand Your Ground” law, which was not invoked in Zimmerman’s case.

In addition, prosecutors must turn over to the defense any exculpatory evidence they may possess. Defense counsel is under less-stringent obligations to share witness information with prosecutors, and is under no obligation at all to convey any damaging data.

It is no surprise, therefore, that prosecutors have taken to aggressively charging every count they can reasonably, or sometimes unreasonably, imagine, and then bargaining down with the defense. One of the prosecution’s best weapons is the risk that defendants face of drawing a harsh sentence if a jury rules against them. Some juries are more inclined than others to accept what authorities say. Some are just in a hurry to get back to their lives.

But plea bargains are next to impossible in heavily publicized cases like Zimmerman’s and Anthony’s. Cases like these, or like the O.J. Simpson trial two decades ago, draw enough attention to make a defense lawyer’s career, even if the defendant cannot pay the market price for vigorous and thorough lawyering. At the same time, prosecutors anticipate a public backlash if they agree to any deal perceived as letting the defendant off easy. Prosecutors cannot make an offer good enough to induce the defendant to forego a trial, and defense lawyers are willing to put up a stronger defense than most felony defendants could ever hope to get.

We live with the perception, and the reality, that justice is unequal. If you can pay for a strong defense from a private lawyer, you have a genuine and effective right to a jury trial. You have the same right if circumstances happen to provide you with strong representation you could not otherwise afford. Otherwise you don’t. Since a disproportionate majority of criminal defendants are poor, and poor people are disproportionately nonwhite, racial disparities are built into the system even without explicit racial motivation, though sometimes racial motivations or stereotypes play a role as well.

If there was an easy solution, we would already be using it. We are not really prepared, however, to provide a jury trial to most criminal defendants. Nor do we want prosecutors and police to let defendants walk free in large numbers. While there are too many wrongful convictions and bad plea bargains, it is still safe to say that most people who end up behind bars belong there. Crime rates at multi-decade lows attest to the upside of processing large numbers of arrestees efficiently. We ought to remember that it is inner-city neighborhoods that have benefited most from reduced crime.

“Justice for Trayvon” is a rallying cry, not a policy prescription. The Justice Department may promise a civil rights investigation as a way of calming immediate passions, but don’t wait for anything to come of it. Federal prosecution is likely to fail for all the same reasons that the state prosecution did. I don’t think prosecutors will even bring civil rights charges; they’ll just quietly let the matter drop once the story is out of the headlines. Martin’s family has a much better chance in a civil suit against Zimmerman, though we have to wonder whether there is much for them to gain by pursuing one.

Trayvon Martin got his justice when prosecutors did everything they could do to persuade a jury of Zimmerman’s guilt. Zimmerman got his justice when the jury found otherwise. We can have a more productive discussion by focusing on how justice is dispensed to all those defendants who never go to trial.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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