Why was Zimmerman overcharged?

Public protests unduly influence prosecutors, often leading to acquittals.

By Jonathan Turley

http://www.usatoday.com

July 14, 2013

Florida Attorney Angela Corey and assistant state attorney Bernie de la Rionda after verdict.(Photo: Pool, Getty Images)

The acquittal of George Zimmerman in the death of Trayvon Martin was not minutes old when an outcry was heard over racial injustice and demands for yet another prosecution by the Obama administration. There was even a call for President Obama to address the nation from the Oval Office to promise action to quell projected violence.

With the verdict, the Zimmerman case entered the realm of legal mythology -- a tale told by different groups in radically different ways for different meanings. Fax machines were activated with solicitations and sound bites long ago programmed for this moment. The legal standards long ago seemed to be lost to the social symbolism of the case.

Criminal cases make for perfect and often dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters -- discarding those facts that do not fit our narrative. We pile meanings on the outcome that soon make the actual murder secondary to the message. Zimmerman and Martin became proxies in our national debate over race. There was little patience or need for the niceties of rules of proof and adjudication.

Before the case is lost forever to the artistic license of social commentary, a few legal observations should be considered, even if unpopular, before condemning this jury.

First, many of us from the first day of the indictment criticized State Attorney Angela Corey for overcharging the case as second-degree murder. While Corey publicly proclaimed that she was above public pressure, her prosecution decisions suggested otherwise. Her prosecutors chose to interview critical witnesses with Martin's family present, a highly unusual and improper practice. The prosecutor was accused with justification of withholding evidence from the defense until shortly before trial.

However, the widespread protests and anger over the shooting seemed to have its greatest impact on Corey's decision to charge the case as murder in the second degree. This was clearly a challenging case even for manslaughter and the decision to push second-degree murder (while satisfying to many in the public) was legally and tactically unwise. The facts simply did not support a claim beyond a reasonable doubt that Zimmerman acted with intent and a "depraved mind, hatred, malice, evil intent or ill will." Had Corey charged manslaughter, the case might have been closer but would have still been a challenge.

Many people were highly critical of the prosecution for putting on what seemed like a case for Zimmerman. The prosecution clearly made its share of mistakes such as leading its case with the testimony of Martin's friend, Rachel Jeantel. Jeantel was a disastrous witness who had to admit to lying previously under oath and produced conflicted testimony. She also stated that just as Zimmerman was accused of calling Martin a derogatory name, Martin called Zimmerman a "cracker."

The prosecution consistently overplayed its hand in a desperate attempt to overcome its own witnesses. Even after being criticized by many experts for overcharging the case, the prosecution proceeded to make a demand at the end of the trial that the jury be able to convict Zimmerman on a different crime: third-degree murder based on child abuse.

Ultimately, it was the case and not the prosecutors that were weak.

The fact is that we had no better an idea of what happened that night at the end of this trial than we had at the end of that fateful night. Jurors don't make social judgment or guesses on verdicts. While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. That is not unlawful. It was also lawful for Zimmerman to be armed. The question comes down to who started the fight and whether Zimmerman was acting in self-defense.

Various witnesses said that Martin was on top of Zimmerman and said that they believed that he was the man calling for help. He had injuries. Not serious injuries but injuries to his head from the struggle. Does that mean that he was clearly the victim. No. It does create reasonable doubt on the question of the struggle.

A juror could not simply assume Zimmerman was the aggressor. Zimmerman was largely consistent in his accounts and his account was consistent with some witnesses. After 38 prosecution witnesses, there was nothing more than a call for the jury to assume the worst facts against Zimmerman without any objective piece of evidence. That is the opposite of the standard of a presumption of innocence in a criminal trial.

Even for manslaughter, the jury had to find that Zimmerman intentionally committed an act or acts that caused the death of Martin. The jury instruction on deadly force states in part: "A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself." That lesser charge still brings the jury back to the question of who started the fight and how the fight unfolded. The prosecutors never had evidence to answer that question in a reasonably definitive way. The jury had no serious alternative to acquittal. That does not mean that they liked Zimmerman or his actions. It does not even mean that they believed Zimmerman. It means that they could not convict a man based on a presumption of guilt.

Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. People will make what they will of the murder trial of Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's Board of Contributors.

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