Jury Nullification History And Trayvon Martin

Yesterday, thousands gathered all across the country in 100 cities for rallies on behalf of Trayvon Martin and for something to be done about ‘Stand Your Ground’– the morbidly insane law which allowed George Zimmerman to kill an unarmed teenager and get away with it.

A lot of questions and calls for resolution have been raised in the wake of the verdict, for sure. But the sentiment for many seems to be that the jury has spoken, and that it’s just too bad ‘the prosecution was outplayed’ by the defense for George Zimmerman, and we must accept it. That ‘Stand Your Ground’ was not on trial, here, and neither was Trayvon Martin, for that matter.

The truth is, the jury could have reached any verdict they wanted within the parameters of considering whether or not Zimmerman was guilty of second degree murder, or manslaughter. They decided “Not guilty.” But why?

Jury nullification:

A sanctioned doctrine of trial proceedings wherein members of a jury disregard either the evidence presented or the instructions of the judge in order to reach a verdict based upon their own consciences. It espouses the concept that jurors should be the judges of both law and fact.

Jury nullification pertains to the power a jury has over the verdict in a case before it. It’s been used throughout history as a means to nullify laws relating to issues from prohibition, to The Fugitive Slave Act. More recently, it’s come into play during cases involving marijuana growers, or persons charged with cheating the IRS.

But the uglier side of jury nullification has seen the post-Civil War practice of all-white juries acquitting defendants for crimes against black people and minorities, “especially in the South, even in the face of irrefutable evidence.”

Sound familiar? I think so.

Judge’s instructions in the Zimmerman trial:

If George Zimmerman was not engaged in an unlawful activity and was attacked in anyplace where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony[...]

‘Stand Your Ground’ was, in fact, on trial here. And the jury could have decided to nullify the law, as juries have done with so many laws throughout history.

Trayvon Martin was also on trial, although you’re not supposed to read between any lines, due to some very ugly truths in this country. Like, why aren’t more white people showing up to these Trayvon Martin rallies?

The headlines after the verdict could have been more accurately written as, “Trayvon Martin Found Guilty Of Standing His Ground.” If you substitute Trayvon Martin where George Zimmerman’s name is written in the judge’s instructions, the judge and jury– not so much the prosecution and the defense– decided that George Zimmerman, even though he was the armed aggressor, had more of a right to stand his ground than Trayvon Martin did.

Think about that. Whether or not Trayvon Martin had a right to stand his ground was never even considered.

One of the early cases of jury nullification involved a man by the name of Bill Hickok, more commonly known as Wild Bill Hickok.

It was on this day, actually, July 21, 1865 that Wild Bill shot and killed a man by the name of Davis Tutt over a very public dispute about a pocket watch, a poker game, and what modern day gunslingers and brawlers would argue as “disrespecting me, bro!”

Hickock_Tutt_Duel_1867_Harpers_Monthly_Magazine

Wild Bill Hickok threatens the friend of Davis Tutt after defeating Tutt in a duel. Harper’s New Monthly Magazine, February 1867

During his trial for the very public shooting of Davis Tutt, Wild Bill tried invoking the “mutual combat” law, which turned out could not be claimed as a defense because he showed up armed and ready for a fight. But the judge in the case, looking for a way out for the jury instructed them that they could apply the “unwritten law of fair fight,” and with that, the jury acquitted Wild Bill for the murder of Davis Tutt.

Jury nullification laws and stand your ground laws of the day were instrumental in 1865 in creating a gun-slinging legend out of Wild Bill Hickok.

The jury could have easily convicted Wild Bill, in the same way the jury could have convicted George Zimmerman, but the judge’s instructions in the case left them wide latitude for an acquittal, as in the Zimmerman trial, all but insisting they apply the “unwritten law of fair fight” to reach their decision.

Setting aside the fact that Republicans and the NRA have effectively turned back the clock on the country’s gun laws to the off-to-glory-faced days of the Wild Wild West when a man could kill another man in broad daylight over a dispute about a pocket watch, or humiliation, and still be found innocent of the charges by a poorly-informed jury– the trial of George Zimmerman is a reminder of how far we’ve climbed up the hill as a culture, only to be knocked back down to some dusty bygone era of bad idea gun laws.

The jury had the power to convict George Zimmerman in their hands, the power to nullify bad law, but they decided that George Zimmerman had more of a right than Trayvon Martin to defend himself.

In the aftermath of the trial of Wild Bill Hickok:

A prominent Springfield attorney gave a speech to the crowd from the balcony of the court house, denouncing the verdict as “against the evidence and all decency”[...]

Some things never change. And when they do, there are terrible people ready to make sure that they don’t.

When it all comes down to it, not the judge, nor the prosecution, nor the defense has the power that a jury possesses. The power to nullify bad law is always up to us.

This entry was posted in Civics, George Zimmerman, Gun Fetishists, Guns, History, Racism, Republican Party, Totally About Race and tagged , , , , . Bookmark the permalink.
  • blackdaug

    Somewhere in the far too many articles I have read about this case, I saw an explanation for how SYG did play a direct role in the verdict, even though it wasn’t directly used in the defense.
    In a case like this, prior to SYG, the judge would have been required by law to include in the jury instructions, the admonition that if the jury found that Zimmerman was the “instigator” of the altercation, he forfeited his right to claim self defense. There was even case precedent to back it up.
    ….but since the remarks of one of the jurors, I have come to believe that it would not have made any difference in the outcome….and that this was simple…horrible..nullification of the worst kind.
    More troubling is the fact that it happened in such a high profile case, which should indicate it will happen in a lot more cases with less publicity surrounding them.
    The prosecution should have argued that Zimmerman lost all claim to self defense the second he exited his car, especially after being told by law enforcement not to do so, and tried to get evidence of the ensuing struggle ruled inadmissible….but even if they had been successful, the outcome probably would have been the same.
    I am beginning to suspect that what this case really highlights is a tangible difference in groups of people that cannot be dicerned by skin color.
    Apparently there is an empathy gene, and there are far too many people who don’t have it in their make up.

  • muselet

    I appreciate the point you’re making. However, jury nullification is a really bad idea.

    Anyone who’s deliberated with a jury knows how hard it is to get a group of people—each with a different set of life experiences (for which, read prejudices and preconceptions)—to agree on much of anything. Arguments go round and round, feelings get hurt, discussion gets sidetracked, often the law gets debated. It’s a messy process, but ultimately a jury will come back to the facts of the case.

    Every member of every jury I’ve served on (six, if I’m counting right) has taken his/her duty very seriously, and has ultimately voted guilty or not guilty according to the applicable law. That’s as it should be. Maybe my experience has been unusual, but I doubt it.

    Throw nullification into the mix and you have chaos. Trials would become—to an even greater degree than now—exercises in making defendants (and prosecution witnesses) sympathetic or even *shudder* likable, the facts be damned.

    The answer to bad laws is not to allow juries to ignore them (that’s a great way to guarantee verdicts “against the evidence and all decency”). The answer to bad laws is to get them replaced by less-bad laws.

    Sorry, mate, I just can’t back you on this one.

    –alopecia

    • Tim Howlett

      Agree wholeheartedly. I (31 yo white male) was/am extremely upset by this verdict. An armed adult saw a black kid walking through his neighborhood, called 911, then confronted & shot him. Blows my mind that he’s not in jail.

      However, after learning more about SYG, it’s apparent that the jury reached the proper conclusion given the law’s constraints. And, a jury must listen to the judge’s instructions. The judge is responsible for framing possible outcomes. As jury nullification was not given as a possible outcome, I don’t see how a responsible jury could have reached that verdict.
      The root cause for this awful decision is SYG, not the jury. I would have been sick if I had to serve on that jury and realized that the law compelled me to acquit.

    • mrbrink

      That’s fine. However, I disagree because the jury in the Zimmerman trial went out of its way to nullify Zimmerman’s guilt based upon SYG instructions from the judge, which they could have easily applied to Trayvon Martin– but they didn’t.

      Juries have the power and the right to nullify bad laws. They can ignore judges’ instructions without fear of prosecution. There is no law that can convict you for voting your heart. Sometimes a little chaos and citizen activism is needed to overturn bad law.

      In essence, the judge and jury together nullified Trayvon Martin’s right to defend himself, failing to see the obvious contradiction in their logic, and upheld bad law in doing so.

      I’m not advocating jury nullification as a common practice, but I think this is a case where the jury could have ignored the judge’s instructions and decided this case on the facts, rather than a dubious angry-black-man-on-reefer defense and the frequent cognitive dissonance of justice.

      • muselet

        I’m not advocating jury nullification as a common practice …

        Where do you draw the line, though? Which cases are important/disturbing/wrongheaded enough for a jury to ignore the law? That’s why advocating for nullification makes me cringe. Justice—define that how you will—is unequal already, but with nullification you add caprice to the inequality. No legal system could function that way.

        If we are to believe the statements of that Zimmerman trial juror (who is clearly a knucklehead, so grains—possibly hogsheads—of salt are called for), the jury was looking for a reason to acquit and found one. My guess is they would have found a reason even absent an ooga-booga defense or the stand-your-ground modification to the self-defense statute.

        What happened in Florida was a tragedy that degenerated into farce the microsecond the Sanford Police Department got involved. We can argue whether the police or the prosecutors or the judge or the jury should have done things differently—those are arguments worth having, notwithstanding the racists and trolls who gleefully go out of their way to deny Trayvon Martin’s humanity—and we can and should argue the wisdom of stand-your-ground laws.

        What I think we can’t afford is to argue for jury nullification, not even in a case like this one.

        –alopecia

        • mrbrink

          The way I see it, the jury already nullified the rights of Trayvon Martin. This wasn’t a jury that was beholden to law, as many people keep trying to allege– many of them took this personal, and made it so.

          Everyone could have acted differently, especially the jury.

          • muselet

            Everyone could have acted differently, especially the jury.

            Agreed. And the forewoman of the jury should be hanging her head in shame for letting it become personal.

            –alopecia

          • blackdaug

            Even with poor instruction, the jury still had to leap through several hoops to arrive at “not guilty”, especially when they had the option to find guilty of manslaughter or other crimes.
            The relatively minuscule time they spent deliberating is telling in itself.

  • Rodger Knight

    ‘Stand Your Ground” was not an issue in the Zimmerman trial. The Zimmerman defense team specifically chose to not use “Stand Your Ground. The verdict was predicated on reasonable doubt. Hate the verdict if you will but keep in mind that justice will not be served by misconstruing facts.

    • blackdaug

      “The verdict was predicated on reasonable doubt.”

      Bullshit.

      • Rodger Knight

        “One ‘legal expert’ comment” automatically becomes fact? Really? Do you ever pay any attention to the quality of “legal experts” the networks hire. In this trial Gloria Allred was one of MSNBC’s “legal commentators.

        “Bullshit” is what you say when you have nothing to say. It’s a sign of a deficient vocabulary.

        • Treading_Water

          Would you take the word of the jury?

          • Rodger Knight

            Of course I would. That’s how our system works. We don’t have to agree with the verdict. We don’t have to like it. We do, in the absence of egregious misconduct, have to accept it. Ask yourself, if you were exonerated by jury trial would you want your ultimate fate decided by public opinion. Eventually, that didn’t work in Salem. That’s why they gave it up.

          • Treading_Water

            Okay, but what about “Stand your Ground” having nothing to do with this trial? That’s what I really wanted to know.

          • Treading_Water

            Instead of replying to me, I’d be just as happy to see you apologize to Mr. Brink for accusing him of “misconstruing the facts.”

            Anytime you’re ready.

          • Rodger Knight

            A good place for my final word on this. My objection here is to all those demanding the the federal government make things right by retrying George Zimmerman. Let’s keep in mind that the practice of federal revue of local jury verdicts was primarily used, and rightly so, in the south during the civil rights movement of the 1960s. During that period it was nearly impossible to convict a white who murdered a black egardless of the evidence or the rules of law.That is not the case here. Zimmerman was found not guilty by a duly constituted jury before a legitimate, impartial judge.

            Your argument should be with the law not with the jury, the judge, the instructions or the process and your goal should be changing the law. Any other argument misses the point no matter how popular that argument might be.

            Before we wish too ardently for federal intervention let’s try to remember that the Third Reich was at first seen a a “dual state” since normal judicial powers (state government) coexisted with the arbitrary powers of Hitler (the federal government.) Yet, as was true in most areas of public life after the Nazi rise to power in 1933 the German justice system underwent an alignment with Nazi goals. All professional association involved with the administration of justice were merged into the National Socialist League of German Jurists. In April, 1933, Hitler purged Jewish and Socialist judges, lawyers and other court officers from their professions and the Academy of German Law advocated cleansing German law of “Jewish influnces and let “healthy folk sentiment (gesundes Volksempfinden) guide their decisions.

            In this troubled time in our country we need to be very careful what we wish for

          • Treading_Water

            So, nothing to add. Nothing about misrepresenting the facts, just a deflection to something we already know. We cannot retry GZ, double jeopardy and the constitution and such. We can try to get the facts right and prevent this from happening again. Get the facts right. This case was all about SYG laws, and the fact that those laws are unfairly applied and way too loose to base actual case law on.

          • Badgerite

            I think that is true. These laws will, like the death penalty and the drug laws, inevitably be applied unfairly. We are not a post racial society.

          • D_C_Wilson

            That is not the case here. Zimmerman was found not guilty by a duly constituted jury before a legitimate, impartial judge.

            So were all those white men who were not convicted of killing a black man in the 1960s, even though everyone in town knew they did it.

          • Badgerite

            Are you serious? You are bringing up Hitler and the Third Reich in comparison to a Federal case for Civil Rights violation.
            Bogus Comparisons and False Equivalencies 101:
            State Government – Normal Judicial powers
            Federal Government – Arbitrary Powers of Hitler

            ‘Nough said!

          • Badgerite

            I would not say that ‘exonerated’ is the appropriate word to use with respect to this case. All I hear from Zimmerman defenders is stuff like, ‘well, it wasn’t ILLEGAL’ for Zimmerman to follow him and the phrase ‘beyond a reasonable doubt’. A lot. In fact, O’Mara’s argument to the jury at the trials end was almost like Rudy Guiliani’s presidential campaign and the phrase ‘9/11′. It was almost all he said. He hammered this home to the jury so that just about any doubt surrounding the events of that night became reasonable doubt. No matter what the jury says, I would not say exonerated. It implies that Trayvon Martin somehow deserved to be shot in the chest by a man who knew the police were on the way and who could only demonstrate very minor injuries after the fact.

    • mrbrink

      Stand Your Ground was the key component of the judge’s instructions to the jury. It was their guide, whether or not the lawyers argued it is irrelevant. The judge did their work for them.

      if George Zimmerman was not engaged in an unlawful activity and was attacked in anyplace where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony[…]

      • Badgerite

        That explains why the right wing comments often mentioned that Zimmerman wasn’t doing anything UNLAWFUL by following Trayvon Martin.

    • Treading_Water

      From Anderson Cooper’s interview with juror B37:

      COOPER: Because of the two options you had, second degree murder or manslaughter, you felt neither applied?

      JUROR: Right. Because of the heat of the moment and the Stand Your
      Ground. He had a right to defend himself. If he felt threatened that his
      life was going to be taken away from him or he was going to have bodily
      harm, he had a right.

      http://www.latimes.com/local/lanow/la-me-ln-juror-zimmerman-has-learned-a-good-lesson-20130716,0,7878950.story?page=2

      “The law became very confusing. It became very confusing,” she told
      Cooper Monday night. “We had stuff thrown at us. We had the
      second-degree murder charge, the manslaughter charge, then we had self
      defense, Stand Your Ground.”
      Juror B37 mentioned Stand Your Ground a second time of her own
      accord, saying the jury ultimately made its not-guilty verdict Saturday
      night based on the evidence and “because of the heat of the moment and
      the Stand Your Ground.”
      http://www.miamiherald.com/2013/07/16/3502481/juror-we-talked-stand-your-ground.html#storylink=cpy

      The defense lawyers may not have invoked SYG, in fact they had the opportunity to have the judge make a bench ruling of acquittal based on this law and didn’t take it, but the jury assuredly had this slippery law firmly in mind in their decision making.

      • Badgerite

        ‘Heat of the moment’! Otherwise known as , Zimmerman panicked and shot an unarmed kid to death.

    • missliberties

      The basic right to self defense law changed wording in 2010 when the new and improved Stand Your Ground Law was passed. The duty to retreat was redefined.

    • D_C_Wilson

      The defense didn’t need to. The judge raised SYG for them during the instruction period and the jury clearly took SYG into consideration as per the interview with Anderson Cooper linked below.

  • Badgerite

    The more I think about the verdict, and examine the facts, the more I disagree with it because I really don’t think that George Zimmerman had a reasonable good faith belief that he was going to be killed or suffer grave bodily injury. And the proof for this is how minor his injuries were. You don’t get to shoot somebody to death because they punch you in the nose. That is not something that one would consider serious injury or threat of death. The head is a more sensitive area but the injuries to his head were so minor that he didn’t even spend the night in the hospital for observation to see that he had no unseen injuries and that would be the prudent thing to do if his injuries warranted it. They, obviously, did not warrant that. So where did this ‘reasonable’ belief come from that his life was in danger. According to what he had told police, it was the presence of a loaded gun, which Zimmerman himself was carrying. Video of Zimmerman demonstrating for police where the gun holster was located show him reaching around to his back, which is where such holsters are usually positioned. If that was the location it is hard to see how Trayvon Martin, straddling Zimmerman whose back would have been on the ground, could have even seen his gun let alone made a grab for it. At trial, in cross examining a witness O’Mara casually re-positioned the gun holster to Zimmerman’s front by putting his hand in his waistband at the right hand side indicating where the holster would have been. So you have a direct contradiction of where Zimmerman had told police the holster was located. One location the gun could have been visible, the other it could not have been visible. Even the defense attorney in the case did not believe that Zimmerman’s account of events could be completely true or he would not have subtly changed it at trial. If Trayvon Martin was straddling Zimmerman with his knees at his shoulders, as Zimmerman described it, again, how could he have even seen the gun. That a 17 year old might say something stupid like ‘tonight you’re going to die’.when fighting with someone is not beyond possibility but what is supposed to have made it life threatening was the fact of the gun, which only Zimmerman could have known that he had. O’Mara pointed to the concrete sidewalk as a possible lethal weapon. And that is true, but it was a weapon that Trayvon Martin clearly choose not to use to any lethal effect. ( Again, VERY MINOR INJURIES.) And even according to O’Mara’s recreations in court, Martin was not banging Zimmerman’s head on the concrete,rather, he was slamming his torso on the ground and Zimmerman’s head was hitting the concrete incidental to this. That is not the use of lethal force. Additionally, Zimmerman himself had called the police and knew that they were en route and would probably be there within minutes. All of this required that he whip out a gun and shoot an unarmed teen point blank and aim for the heart so that Martin had no chance at survival. No, I don’t think so. None of what was testified to makes me believe that he had a REASONABLE belief that he needed to kill Trayvon Martin to survive that night. He was guilty of manslaughter at least.

    • Treading_Water

      I’ve never believed that he went out that night thinking that he’d get to kill some black kid. In my mind, he panicked. He felt he had the authority to follow Trayvon and make sure that he didn’t “get away with it”, but when he confronted Trayvon things didn’t go the way he expected. I still don’t believe the injuries show that GZ suffered MMA style “ground and pound” or that his head got repeatedly slammed into the concrete. His injuries are consistent with 1 or 2 punches and a fall to the ground. I think he tried to make Trayvon stay and wait for the police, and Trayvon punched him to get away. As a civilian, GZ has no right to detain anyone, and if someone I didn’t know grabbed me in the dark I’d do my best to put him on his ass too.

      • Badgerite

        Entirely possible scenario. Even a likely scenario.