Exclusively in the new print issue of CounterPunch
MARX: A HERO FOR OUR TIME? — Suddenly, everyone from the Wall Street Journal to Rolling Stone seems to be talking about Karl Marx. Louis Proyect delves into this mysterious resurgence, giving a vivid assessment of Marx’s relevance in the era of globalized capitalism. THE MEANING OF MANDELA: Longtime civil rights organizer Kevin Alexander Gray gives in intimate portrait of Nelson Mandela and the global struggle of racial justice. FALLOUT OVER FUKUSHIMA: Peter Lee investigates the scandalous exposure of sailors on board the USS Reagan to radioactive fallout from Fukushima. SOUTHERN DISCOMFORT: Kim Nicolini charts the rise of Matthew McConaughey. PLUS: Mike Whitney on the coming crash of the housing market. JoAnn Wypijewski on slavery, torture and revolt. Chris Floyd on the stupidity of US policy in Ukraine. Kristin Kolb on musicians and health care. And Jeffrey St. Clair on life and death on the mean streets of an America in decline
The Trial Was Never About the Truth

Why George Zimmerman Walked

by BRUCE JACKSON

Every criminal jury trial I’ve ever attended began with the prosecutor, the defense attorney, the judge, or all three of them telling the jury that what is about to unfold is a search for the truth, and it is the jury’s job to decide whether the prosecutor or the defense is telling the true story.

That is, of course, not the least bit true, and everyone in the courtroom knows it. A criminal trial is about winning and losing. Getting at the truth is at most an occasional lucky consequence. No one in the room, save the defendant and the victim (or the victim’s surivors) has any real investment in the truth. Some judges may; all attorrneys, whether for the defense or the state, represent their clients. What happened before—those events in the world outside the courthouse that set in motion the legal process resulting in the moment the bailiff has everyone rise for the entrance of the judge—is only the occasion for the battle within the courtroom.

The trial proper begins with opening and closing statements: the prosecutor makes an opening statement saying “what the evidence will show.” The defense attorney tells a totally contradictory story (some defense attorneys save their opening  statement for their part of the trial). Then there is the presentation of evidence, again followed by two stories. These second stories, this time limited to narratives based on what actually was seen and heard during the evidence phase, are told first by the prosecutor, then by the defense attorney. Sometimes the prosecutor gets to rebut. Then the judge tells the jury the law, reminds them conviction requires them to accept the charges are true “beyond a reasonable doubt,” and often reminds them that “beyond a reasonable doubt” is a very high bar. Then the jury goes off to the jury room to deliberate.

Sometimes the jury buys the story offered in summation by prosecutor or defense attorneys; sometimes they come up with their own theory of what happened. If they can’t agree, there may be another  trial. If they do agree, that’s it. They come out, the foreperson reads the verdict. If it is “not guilty,” everybody goes home; if it is “guilty,” the judge sets a date for sentencing.

The acts of the drama are the same in every felony jury trial. The primary actors are the same.

William Kunstler, the great civil rights attorney who died in 1995, once told me he believed in the jury system absolutely. “If I didn’t,” he said, “I’d quit this tomorrow and get a gun instead.”

“Even in the South?” I asked him.

“Even in the South,” Bill said.

It was his experience, Bill said, that even in bigoted communities, juries would, with rare exceptions, base their decisions on what transpired within the courtroom.

And there is the rub: juries hear not what happened in the place the purported felony occurred, but only what is admitted into evidence. Before the first juror is seated there are heated arguments about what can and what cannot be admitted into evidence. Sometimes the judge excludes things because he or she thinks they are peripheral, or because the chain of possession from the time of the crime until now is not clear, or because they might be inflammatory (i.e., the jury might be so outraged at seeing a mutilated body it would convict a piece of wood). There are all sorts of reasons things that you and I “know” from reading the newspapers or watching CNN do not ever appear before the jury.

Sometimes things are said by a witness to which one of the lawyers objects, whereupon the judge may say, “The jury will disregard what was just said.” Nobody believes for a moment that such statements from a judge erase things from jurors’ memories; but they do reduce their weight, and they do keep them from being used in arguments in the jury room, where someone may mention them, but someone else will likely say, “But we were told to pay no attention to that.”

All of these things—evidence or apparent evidence excluded before start of the arguments and the judge telling the jury to ignore this or that, and evidence improperly handled (Trayvon Martin’s sweatshirt, which had compromised DNA evidence because of police screwups)—happened during Zimmerman’s trial. What that jury heard was not what we read in the newspapers and saw on TV. They saw only what was admitted into evidence and actually used by the opposing attorneys. They were sequestered from June 24 until July 13, when they entered their verdict. What they heard in that courtroom about what happened that night in Sanford, Florida, and what we’ve heard about that night only occasionally overlap.

The trial was about what Zimmerman had in mind when the killing occurred: did he encounter and then shoot Trayvon Martin because he was a black person in hoodie or was he doing ordinary neighborhood watch work that wound up in a scuffle and a shooting? “We truly believe the mind-set of George Zimmerman and the reason he was doing what he did fit the bill for second-degree murder,” said Angela B. Corey, the state attorney who brought the charges, in a press conference after the trial ended.

Issues of race, which were central to the perception of most of us of what happened in Sanford, Florida, were totally excluded from the trial. Discussion of Florida’s “Stand Your Ground” law, which permits people to shoot other people they feel threatened by rather than doing everything they can to get out of the situation first, were also excluded. Many people—correctly, I think—consider “Stand Your Ground” a racial hunting license. (According to the New York Times, Texas Gov. Rick Perry said, “I think our justice system is colorblind.” Ho, ho, ho.).

The basic question, which the prosecutors could never put before the jury is this: had Trayvon Martin been a blonde white boy  on the way home with a bag of goodies, would Zimmerman have thought him worth tracking in the first place?

A criminal trial is the drama occurring in that courtroom, one in which the only props and voices are those admitted by the judge. There is one further key factor: the competence and judgment of the attorneys on either side. Those attorneys—some for the defense, some for the prosecution—are two sets of script-writers.  They say, at endgame, in summation, here is what the great miscellany of facts you’ve heard really tell you. They take all of those admitted facts and weave from them a story.

Think, for example, of the O.J. Simpson trial twenty years ago and the fiasco around the glove that did not fit. Prosecutors got Simpson to perform in front of the jury and that gave defense lawyer Johnnie Cochran one of the key lines of his brilliant summation: “If it doesn’t fit, you must acquit.” Which the jury proceeded to do. (The other masterly thing that Cochran did was, he spent much his summation time indicting the Los Angeles Police Department for racism: instead of just arguing the prosecution’s narrative, he put before the jury an entirely different narrative.)

In the Zimmerman case, it was the prosecution’s failure to get over that “beyond a reasonable doubt” bar that did them in. “Even after three weeks of testimony,” Lizette Alvarez and Cara Buckley wrote in the NY Times (14 July), “the fight between Mr. Martin and Mr. Zimmerman on that rainy night was a muddle, fodder for reasonable doubt. It remained unclear who had started it, who screamed for help, who threw the first punch and at what point Mr. Zimmerman drew his gun. There were no witnesses to the shooting.”

“Not guilty” is not the same as “He’s innocent.” All “not guilty” means is, “The prosecutor made a claim and then didn’t convince us beyond a reasonable doubt that it was true.” In a criminal trial in the U.S., there is no option for the jury to say “That person is innocent.” The best a defendant can hope for is what George Zimmerman just just got: he was accused, but they didn’t prove it.

There is talk now of asking the Justice Department to take this on as a civil rights crime. Unless some startling new evidence surfaces, that is unlikely to go anywhere: it was a dark and lonely night on that street in Sanford, Florida, and only one living person knows what really happened there, and, by this point, he might not be too sure of anything either.

Bruce Jackson is the author of  Law and Disorder: Criminal Justice in America (1985). His most recent books are “In This Timeless Time”: Living and Dying on Death Row in America (with Diane Christian, 2012), and Inside the Wire: Phlotographs from Texas and Arkansas Prisons (2013). He is SUNY Distinguished Professor and James Agee Professor of American Culture at University at Buffalo.