Who Screamed? Experts, Rules, and the Zimmerman Trial

The Zimmerman homicide trial in Florida is an important bellwether on many levels. My colleague David Papke has already remarked on the jury’s composition and its possible effect on the outcome.  The evidence too is controversial and contested. The notorious 911 call recording is deemed critical, yet the trial judge excluded expert testimony on voice identification as unreliable. Her ruling rippled across the country and may even hold lessons here in Wisconsin.

The 911 call recorded a man’s voice “screaming” for help. The screamer’s identity is disputed. George Zimmerman has claimed self-defense. Prosecution experts asserted, however, that the plea came from the victim, Trayvon Martin, moments before he was shot dead. A bevy of defense witnesses, including specialists with the FBI and the NSA, attacked the methods used by the State’s experts.

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Race, Gender and the Zimmerman Trial

Now that the selection of the jury has been completed, the trial of George Zimmerman for shooting African American teenager Trayvon Martin is even more likely to be the most racially charged trail since that of O.J. Simpson. What’s more, gender will now be important as well.

Much to the disappointment of Martin’s family and civil rights advocates, the jury will include absolutely no African Americans. In addition, none of the four alternate jurors are African American. According to census figures, Florida’s Seminole County, where the trial will take place, is 11% African American.

As recently as fifty years ago, Florida did not even allow women to serve on juries, but, in the Zimmerman trial, all of the jurors will be women. Five of the six jurors have children, and two of the four alternate jurors are also women with children.

In an ideal world, the race and gender of the jurors in a trial such as Zimmerman’s would make no difference. However, Jose Baez, lead counsel in the successful defense of Casey Anthony for killing her daughter Caylee, said the racial make-up of the Zimmerman jury made the case a “slam dunk” for the defense. Widener Law Professor Jules Epstein, meanwhile, argued that the female jurors would be especially sympathetic to the loss of a child and therefore would empathize with Martin’s grieving mother.

I lack the experience to make an intelligent prediction about either the outcome of the trial or the significance race and gender will have in that outcome. Nevertheless, I’m certain that considerations of race and gender will be important in the court of public opinion. Despite ideological pronouncements that all are equal in the eyes of the law, the American public does not take this to actually be true. Americans believe that race, gender, and wealth are major factors in what the legal system produces and invites us to take as “justice.”

 

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So Long, Harris — Breyer’s on Board

Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States. The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences. Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed. Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence. Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum. Thus, Breyer’s vote in Harris was simply another vote against Apprendi. This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come. 

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