Lesson from the Zimmerman Trial: It’s Time to Curb Prosecutorial Abuse

Without a $1,000,000 legal defense warchest, the ordinary citizen has no chance against a dishonest prosecution that disregards evidence and law in its determination to win at all costs.

I’m writing this without knowing the verdict in the trial of George Zimmerman.

The jury is deliberating now.

I assume he’ll be acquitted.

The prosecution did not provide one shred of evidence to refute Zimmerman’s self-defense claim.

Just a lot of: “Couldn’t it have happened this way?” Or “Perhaps it happened that way.”

The big lesson I took from the Zimmerman trial is that, without a high-powered legal team, you have little chance against the state.

Look at the resources the state brought to the prosecution of George Zimmerman.

Zimmerman had to defend himself against and army of prosecutors, investigators, and researchers working on the case.

The state must have spent millions of taxpayer dollars on this prosecution.

Fortunately for Zimmerman, he’s been able to hire a high-powered legal team.

Because this is such high-profile contentious case, donations have poured into Zimmerman’s legal defense website (about $30,000 per month in recent months), he’s been able to pay Mark O’Mara, Don West, and his legal team something — though not likely anywhere near the $1-2 million he likely owes these lawyers.

High-powered criminal defense lawyers earn $300 to $1,000 per hour.

These lawyers have been working on this case for a year-and-a-half.

We saw the value of high-powered legal representation in the O.J. Simpson and William Kennedy Smith trials.

But ordinary people who are not involved in high-profile cases cannot afford anywhere close to this level of legal representation.

Many criminal defendants are low-income Americans who must rely on an overworked public defender — most of whom are young and have almost no experience. They have no chance against the state.

In America, we are told to expect “equal justice of all.”

But there’s no “equal justice” for the low-income American who must rely on a public defender, or perhaps a single lawyer who must operate on a shoestring budget and doesn’t have the resources to conduct their own investigations.

In the George Zimmerman trial, we also saw how vicious and unfair the prosecution can be.

The prosecution has painted every statement and every action of George Zimmerman in the worse possible light. Because he is quoted once saying “these f____ing punks always get away,” he’s portrayed not as just frustrated because of the rash of home invasions and burglaries in his community, but as a racist with malice and ill-will in his heart toward Trayvon Martin.

The prosecution is supposed to be seeking justice, not twisting every statement of a defendant in an effort to paint a dishonest caricature of a defendant so the jury hates Zimmerman.

The prosecution also presented every little inconsistency in Zimmerman’s account as evidence that he’s a liar and therefore a murderer (an enormous illogical leap).

For example, the prosecution made a big deal of Zimmerman’s claim that his head was bashed on the concrete “maybe 25 times” — saying this shows Zimmerman is a liar.

It’s obvious from the evidence that Zimmerman’s head was slammed on the sidewalk maybe five or six times. But it probably felt like 25 times.

The prosecution made a big deal over Zimmerman having to check the street name when reporting the event to police.

The prosecution thought Zimmerman should have known the street name from memory since that was his neighborhood and there were only three streets.

Heck, I have to check my cell phone to give people my phone number. I don’t know my wife’s cell phone number. I just hit the speed dial.

I know the street I live on. But I really could not tell police the names to the other streets around me. This is just not information I keep in my mind — especially with modern GPS systems. Or, it’s possible Zimmerman wanted to make sure he had the spelling correct.

There are any number of reasons Zimmerman might have wanted to check the name of the street before giving it to police.

But the prosecution blows that up into some kind of big character flaw — evidence of lying and evidence that Zimmerman was trying to cover up a crime.

The prosecution argues there was no way Zimmerman could have reached his own gun in the holster on his hip if Trayvon was on top of him in a fight.

Obviously, in a fight the combatants are moving around. Zimmerman could certainly have found a opportunity during the scuffle to reach his own gun.

But the prosecution presents that as a lie by Zimmerman. And then takes a wild illogical jump to: this must mean he committed murder.

Zimmerman says Trayvon jumped out at him from the bushes. At another time, he said Trayvon jumped out at him from the dark.

Jumped from the bushes? Jumped from the dark? Jumped from somewhere? I don’t know where he jumped from.

All this basically means the same thing to me.

Trayvon jumped out from somewhere, according to Zimmerman. These are not substantially inconsistent statements, not evidence of lying. Certainly not evidence Zimmerman is a murderer.

It’s almost impossible to tell a story more than once without changing the story. We include some details, leave others out, then add them later. Memory of events also becomes cloudier as time moves on.

The chief detective testified to the court that he believed Zimmerman was telling the truth, that the inconsistencies in Zimmerman’s accounts were irrelevant. The lead detective is an expert lie detector. He is convinced Zimmerman is telling the truth. And the detective was the prosecution’s witness.

But this doesn’t stop the prosecution from continuing its witchhunt.

The prosecution is doing everything it can to trash George Zimmerman as a person — trying to show he’s a bad guy.

A manslaughter charge might make sense. But there is no evidence whatsoever that George Zimmerman is a racist with malice in his heart who set out to kill a black kid that night.

When President Reagan’s Secretary of Labor Ray Donovan was prosecuted for corruption, but then later acquitted of wrongdoing, he expressed relief at the acquittal, and then said: “But now where do I go to get my reputation back.”

Thank God George Zimmerman had a high-powered legal team to save him from this malicious, politicized prosecution.

The prosecution’s closing argument was essentially this: Ignore the evidence and the law and instead rely on your heart to convict George Zimmerman.

“Look into your heart” prosecutor John Guy kept telling the jury.

Look into your heart?

How about look at the evidence and the law.

The prosecution actually changed its position at the end of the case.

In the opening argument, the prosecution had George Zimmerman on top of Trayvon Martin.

As the trial went on, it was clear the defense could pretty well prove (with two eye-witness accounts plus the forensics) that Trayvon was on top of Zimmerman. So then the prosecution’s position became: “Well, maybe Trayvon was trying to pull away when Zimmerman shot him.”

So the prosecution told the jury to convict Zimmerman based on that possibility — a “maybe it happened this way” proposition. Or “maybe it happened that way.”

The truth is, no one really knows what happened, except George Zimmerman. If the prosecution can’t tell us what happened, the verdict should be “not guilty.”

The malice the prosecution showed toward Zimmerman throughout this trial was appalling.

At the last minute before closing arguments, they even tried to throw in a new charge — murder three, when a child ends up dead due to child abuse.

Fortunately, the judge rejected that absurdity.

Throughout his closing argument, prosecutor John Guy repeatedly referred to Trayvon Martin as “a child” — another effort to mischaracterize the situation to tug on the heartstrings of the six mothers who are on the jury.

A six-foot-tall 17-year-old is a minor (barely), but not a child.

A child is a kid in elementary school or middle school. A 17-year-old is approaching their physical peak in life. To call Trayvon “a child” in an effort to suggest he was somehow defenseless against the out-of-shape 5′ 7″ George Zimmerman was yet another example of this prosecution’s dishonesty and their win-at-all-costs mentality.

The closing argument of the prosecution amounted to mostly screaming and yelling, combined with strange quotes from Bartlett’s Book of Quotations that had nothing to do with the case. Prosecutor John Guy repeatedly screamed this at the jury throughout his one-hour close: “We owe the living respect. We owe the dead the truth.”

He thought this so profound, he repeated it at least three times to the jury.

What the heck does that quote have to do with anything in this case? What does it even mean?

This prosecution spared no expense and was determined to win at all costs, no matter what the evidence actually shows. This prosecution never even presented a theory or timeline of what happened the night George shot Trayvon.

Prosecutors are officers of the court. They work for the state. We should expect better.

Thank God, Zimmerman has superb legal representation.

But most Americans can’t afford a team of $500 per hour lawyers to contest every allegation, every twisting of evidence by the prosecution with its army of lawyers, investigators, and researchers. Most Americans can’t afford to pay forensic experts, medical experts, gunshot experts, and even use of force experts to contest the prosecution’s claims.

Most Americans have to hope prosecutors are actually interested in the truth, interested in justice.

This prosecution was only interested in winning — was unconcerned about the truth.

The conduct of these prosecutors was so over-the-top, so dishonest, so unprofessional, so unfairly abusive to George Zimmerman, that they should lose their license to practice law. They should perhaps even serve some jail time.

We must also take steps to curb this kind of prosecutorial abuse — which, unfortunately, we are seeing more and more today.

Here are a few ideas:

1) Prosecutors should be penalized professionally (perhaps lose their job) for failing to win convictions on 90 percent of the charges they bring.

This prosecution had to know they could not possibly prove second degree murder against George Zimmerman. They had, at most, a manslaughter case.

Prosecutors are supposed to bring charges against an individual only if they are certain in their own minds that they have overwhelming evidence to win the case.

But prosecutors like to overcharge defendants.

They overcharge, first, as a way to terrorize defendants into accepting a plea bargain of guilty on a lesser charge.

Rather than face the prospect of 25 years or life in prison, defendants who are not guilty of anything often plea to a lesser charge in order to escape the possibility they will be convicted of the extreme charge, even if by some fluke.

If there is a trial, prosecutors bring the most extreme charge possible as a strategy to persuade a jury to reach a compromise verdict on a lesser charge, even if there isn’t much evidence for the lesser charge either.

Casey Anthony was acquitted because the prosecution was seeking the death penalty against her. This was a clear case of over-charging.

Had the prosecution brought a murder three charge against her — child abuse that leads to the death of a child — the state might have won that conviction.

But the jury was not about to send Casey Anthony to the death chamber. No sane person would.

The death penalty is supposed to be reserved for the likes of John Wayne Gasey, not Casey Anthony.

I believe Casey Anthony accidentally killed her baby with chloriform. She wanted to put her baby to sleep with chloriform so Casey could go off and party. The baby then died.

Terrible, yes. Criminal, yes. Death penalty, no. Classic case of over-charging by the prosecution. This should not be permitted.

The legal system should take a dim view of prosecutors over-charging defendants because the state has unlimited resources to press any charge imaginable, but ordinary citizens don’t have the resources to mount a credible defense against any charge the state might dream up bring up.

Penalties against prosecutors over-charging defendants should range from a court reprimand and financial sanctions to disbarment and even prison depending on how egregious the violation.

Prosecutors are officers of the court, agents of the government.

Citizens have a right to expect fair and honest prosecutions.

2) Prosecutors should be required to make all charges known before the trial starts, not come in at the end of the trial with lesser charges or different charges.

In Florida and other states, prosecutors, if they think they haven’t proven their case, often ask the judge to allow the jury to consider lesser charges.

Thus, there is every incentive for prosecutors to overcharge a defendant.

Even though we are supposed to be innocent until proven guilty in America, the reality is that juries, for the most part, assume the defendant must have done something wrong or he would not be in this position.

Studies show that juries are much more likely to arrive at a guilty verdict if they have a menu of charges to pick from, including lesser charges.

Prosecutors should be required to settle on one charge per crime — not be allowed to get away with offering a menu of charges for the jury to settle on.

If the prosecution is confident of its case, it should be required to prove it — not say: “Well if you don’t believe us on this, maybe you’ll believe this.” Prosecutors should not be allowed to engage in “bait and switch.”

The idea that a defendant would have to begin trial without knowing what all the charges are is Orwellian.

Prosecutors should not be allowed to just throw up as much mud as they can against the wall and see what manages to stick.

They should be sure of their charges before they bring charges.

3) If the prosecution fails to win conviction, the government should reimburse the defendant for all legal fees.

A law like this would cause prosecutors to make sure they have the evidence before their start charging people with crimes.

If the prosecution brings three charges, and only wins on one of them, the government would have to reimburse the defendant two-thirds of his or her legal fees.

A law like this would also allow ordinary Americans who are innocent to mount a credible legal defense.

Top flight law firms would then look at criminal cases, assess the facts, and take on low and middle income clients on the prospect that their legal bills would be paid if they won the case.

We would then lessen the problem we have today of low and middle income Americans being unable to afford a vigorous legal defense. If they know the facts are on their side, law firms will be anxious to come to their defense.

The Bottom Line

We need to do something the level the playing field between the state and the individual defendant.

Right now, the ordinary American is no match for the state because the ordinary American cannot afford to pay law firms $500 per hour per lawyer to mount a credible legal defense against serious charges.

How many people can afford the $1,000,000 or more it would take to match the near unlimited resources of the state?

We have a two-tiered criminal justice system — one system for those who can afford a million-dollar legal defense. Another system for those who can’t.
That’s not “equal justice for all.”

We can address this in one of two ways.

We can make sure every criminal defendant has a $1,000,000 legal defense warchest.

Or we can enact laws and rules that would impose big penalties on the prosecution for over-charging defendants. We can also require the government to reimburse defendants for failed prosecutions. This would go a long way toward curbing prosecutorial abuse.