Skip to main content

What really went wrong in the Zimmerman trial

By Walter Olson, Special to CNN
updated 2:03 PM EDT, Fri July 19, 2013
Sybrina Fulton, mother of Trayvon Martin, is joined by her son Jahvaris Fulton as she speaks to the crowd during a rally in New York City, Saturday, July 20. A jury in Florida acquitted Zimmerman of all charges related to the shooting death of Trayvon Martin. <a href='http://www.cnn.com/2013/06/27/justice/gallery/zimmerman-trial/index.html'>View photos of key moments from the trial.</a> Sybrina Fulton, mother of Trayvon Martin, is joined by her son Jahvaris Fulton as she speaks to the crowd during a rally in New York City, Saturday, July 20. A jury in Florida acquitted Zimmerman of all charges related to the shooting death of Trayvon Martin. View photos of key moments from the trial.
HIDE CAPTION
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Photos: Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
Reaction to Zimmerman verdict
<<
<
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
>
>>
STORY HIGHLIGHTS
  • Walter Olson: Those upset with verdict call for giving new powers to prosecutors
  • Olson: The unintended effect of this would be that more black men would end up in prisons
  • He says what really went wrong in the Zimmerman case is the prosecution's misdeeds
  • Olson: To help minorities in the justice system, don't look to taking away defendants' rights

Editor's note: Walter Olson is a senior fellow at the Cato Institute's Center for Constitutional Studies.

(CNN) -- People upset at George Zimmerman's acquittal are calling for awarding various new powers to prosecutors at the expense of protections for criminal defendants.

Maybe this would make it easier to hang a rap on some future Zimmerman. But it also would have an effect that its backers probably don't intend: increasing the number of persons convicted and sent to prison. As part of that effect, more young black men -- as well as more members of other groups -- will end up behind bars.

On Twitter and Facebook, many people have expressed frustration with the conviction standard of "beyond a reasonable doubt," which the state of Florida was unable to overcome. Couldn't we lower it? Others hoped prosecutors could appeal the verdict (right now, they can't; an acquittal is final).

Walter Olson
Walter Olson

To change either of these basic features of our judicial system, we'd have to overturn the Supreme Court's settled view of the Bill of Rights or amend the U.S. Constitution itself. And what would happen if we did? Convictions would rise, and the nation's outlandishly large and disproportionately black prison rolls would swell yet further.

Or consider the popular notion of retrying Zimmerman on federal charges.

Under our Constitution, even serious crimes such as murder are traditionally offenses under state law only.

In a controversial 1959 opinion, Bartkus v. Illinois, the Supreme Court ruled that consecutive prosecutions under state and federal law do not violate the Constitution's ban on double jeopardy. Interestingly, that was the view of the court's five more conservative justices. The dissenters, who warned eloquently of the dangers of letting government try people twice for the same conduct, were the four liberals: Earl Warren, William Douglas, Hugo Black and William Brennan.

Trayvon Martin's parents talk verdict
Trayvon's mom: Verdict was total shock

For many years thereafter, such prosecutions were a rare exception. Occasionally they were of national note, as when a Jim Crow authority would refuse to prosecute a white-on-black crime. Only with the Rodney King case in California in 1993 did anyone seriously propose giving prosecutors a second bite at the apple after a state prosecution pursued in good faith before an ordinary jury ended in an unpopular acquittal. If the floodgates now open, how long before we see federal enforcers begin to second-guess state-court acquittals in, say, drug cases?

Others call for narrowing self-defense rights, though the Zimmerman case wound up being tried under pretty much the same self-defense standard that prevails in the great majority of states. Florida's so-called "stand your ground" law, which did away with the "duty to retreat," was ignored by both prosecution and defense, and the jury appeared to accept Zimmerman's contention that retreat was not an option for him once the altercation began.

A key constituency seeking to roll back stand your ground in the Florida legislature is prosecutors, whose interests just might not be fully congruent with those of the people they prosecute.

Although critics insist that stand your ground leads to racially disparate effects, the Tampa Bay Times, a paper that has been highly critical of the law, concedes its in-depth investigation "found no obvious bias in how black defendants have been treated" under the law.

It also quoted Alfreda Coward, a black Fort Lauderdale lawyer "whose clients are mostly black men," as saying it had sometimes worked to the advantage of her clients facing charges over altercations. "Let's be clear," Coward told the paper, "this law was not designed for the protection of young black males, but it's benefiting them in certain cases."

If you're looking for things that really went wrong in the Zimmerman case and are part of wider patterns unfavorable toward minorities, try looking at the prosecution's misdeeds.

In particular, Florida State Attorney Angela Corey overcharged, going for second-degree murder when even manslaughter was shaky. That didn't cow Zimmerman, who had a sizable legal defense fund, but such tactics work every day in extracting plea-bargain surrenders from ordinary-Joe defendants who fear a worse verdict.

Corey's team also tried the case in the news media, made jury-inflaming assertions it couldn't back up with proof, and (according to a whistle-blowing employee, soon fired by Corey) even withheld evidence from the defense side, an ethical breach should it be proven.

A public stirred up to outrage over sins like those might come to realize that they're not a fluke of the Zimmerman case, but crop up regularly in the everyday criminal justice system, to the disfavor of minority (and nonminority) defendants.

When the emotional grip of the moment has relaxed, we may wonder how we ever imagined that the way to help minorities in the justice system was to take away criminal defendants' rights.

Follow us @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Walter Olson.

ADVERTISEMENT
Part of complete coverage on
updated 5:01 PM EDT, Wed October 22, 2014
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
updated 12:19 PM EDT, Thu October 23, 2014
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
updated 6:35 PM EDT, Tue October 21, 2014
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
updated 9:36 AM EDT, Fri October 24, 2014
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
updated 6:08 PM EDT, Thu October 23, 2014
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
updated 5:54 PM EDT, Thu October 23, 2014
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
updated 12:21 PM EDT, Fri October 24, 2014
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
updated 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 10:14 AM EDT, Thu October 23, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
updated 2:51 PM EDT, Tue October 21, 2014
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
updated 6:07 PM EDT, Tue October 21, 2014
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:05 AM EDT, Wed October 22, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT