Because There Really Is No Better Alternative

Eric Mayer, the Unwashed Advocate, clearly lays out "all you need to know."  Scott Greenfield explains why the crowd can't be trusted and hasn't a clue. And Brian Tannebaum gets to the nub of both points with well deserved slams at the media for making it worse.

So. One more time. Whatever you believe.  You need to start with this.

• You don't know just what happened that night.
• I don't know just what happened that night.
• None of the reporters or analysts or commentators know just what happened that night.
• The judge and the prosecutors and the defense lawyers don't know just what happened that night.

And, oh, yeah.  Which is how it happens that we're here.

• The jury didn't know just what happened that night.

Oh, we all know that Trayvon Martin is dead and George Zimmerman killed him.*  That was never the issue.  The issue was whether George Zimmerman committed a crime.  And the answer to that, as I've told my clients repeatedly over the years, as I've written here from time to time, is that none of us (maybe not even George Zimmerman at this point, if he ever did) knows just what happened that night.

The other day, Scott Greenfield noted that despite what TV and the newspapers (and perhaps twitter and facebook but I'm not on those so can't say) may lead you to believe, there's a class of folks you might think spend their every waking moment - and perhaps a significant portion of their dream lives - contemplating the Zimmerman case but in fact don't.

Many criminal defense lawyers studiously ignore cases that catch the public's attention. They just aren't that legally interesting, even if the facts or issues give rise to popular passion. And so it's been for the trial of George Zimmerman for murder 2º in the killing of Trayvon Martin.

I confess to being part of that cadre.

After the knock, knock joke, I was done.  I mean, here's a lawyer who's carefully planned, worked out, scripted, practiced, beginning the trial by . . . . My head hurts just remembering it.**

So I quit. Enough of it.  The case had some sociological interest but legally it was just another show trial and they're just not interesting.  I have my own cases to worry about.  But then the jury came back.  

OK, I get it.  The people who think Zimmerman a hero for killing that drug-addled, dope-fiend street punk looking for a little white girl to rape are pleased that justice prevailed.  The people who think Zimmerman went trawling for the opportunity to kill someone and who better than an innocent black kid minding his own business while heading off to buy a candy bar are outraged.

But see, and here's back to what I tell my clients, this was a trial.  And trials aren't about what happened.  They aren't about truth (whatever that might be and regardless of whether it's knowable).

They're about proof. Which is something altogether different.  Proof isn't what happened.  Proof isn't whether it actually was Colonel Mustard in the den with the candlestick.  And god knows proof isn't what's in the human heart (or what was in George Zimmerman's head).  Proof is about what the jury believes based on the testimony and other evidence as it came in at the trial.  What it believes not more likely, but what it believes beyond a reasonable doubt (whatever that might be).  

Each crime has what lawyers call elements.  Those are the things that the duly enacted statute says the jury must believe the prosecution showed to be so beyond a reasonable doubt.  If the jury finds that the evidence (and only the evidence) as it came in at trial proves every one of those things beyond a reasonable doubt, then it's supposed to convict.  If not, if the prosecution didn't prove all of those things that thoroughly, then it's supposed to acquit.  To say

NOT GUILTY

Even if they believe in their heart of hearts that he did it.  And even if, maybe especially if, you believe it.

And even if it's factually wrong.

John Henry Wigmore who (quite literally) wrote the book on cross-examination said

Cross-examination is the greatest legal engine ever invented for the discovery of truth.

Which is just silly, even it's so.  The idea is the idea of trial.

Sparkling, brilliant, equally matched and resourced advocates lay out their evidence and point out the holes and gaps in the other side's evidence.  It's an adversary system, and like a Hegelian dialectic, the truth emerges from the clash and the 12 good men and true (it was pretty much always men when Wigmore was writing) will get it and reveal it in their verdict.  

It is to laugh.  It's not that cross-examination isn't valuable.  It can help lead to the discovery of truth (whatever that is) or more often it can show up lies and mistakes.  But if it's the best we can do, we're woefully incompetent.  And the lawyers?  Those masters of trustworthiness and integrity?  Please.

Look, I'm not saying that juries are usually wrong or that proof only occasionally overlaps perfectly with quotidian reality.  If the system were that fucked up it would have imploded decades, maybe centuries ago.  It probably comes pretty close to right a pretty large majority of the time.  And I surely don't have a better one to propose.

Nancy Grace? MSNBC? Your friendly neighborhood politician?  God help us Thane Rosenbaum?  

I think not.

But then?

The reality is that it isn't just me.  You really don't know what happened, not in absolute terms.  And really (epistemological moment here), it cannot be known.  And so we have - and in practice, by the way, in that Florida courtroom - The Rule of Law.

Because the alternative is the Law of Rule.  Which comes from vox populi as readily as from the government.  And which ultimately looks like this from Omaha, Nebraska in 1919.



Or like this
 


And it sucks.

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*Note to those of you who want to say, "Told you so" because I'm admitting to actually knowing something when they've accused me of lying when I say that we can never really know anything.  That's an epistemological claim and a quantum uncertainty claim, and I stand by it.  This is a quotidian world claim.  Context matters.  Keep reading.  (Or not.)

**Mark Bennett's commentary is all you need.