Skip to main content
Part of complete coverage from

Dunn verdict a win for prosecution, despite critics

By Danny Cevallos, CNN Legal Analyst
updated 4:48 PM EDT, Wed May 28, 2014
STORY HIGHLIGHTS
  • Danny Cevallos: Critics of the Michael Dunn verdict miss a feature of trials
  • They're always unpredictable, and it's impossible to get inside the mind of a jury, he says
  • He says jury may have been unsure about meaning of various degrees of homicide
  • Cevallos: The prosecution scored a win, despite public criticism of the verdict

Editor's note: Danny Cevallos, a CNN legal analyst, is a criminal defense attorney practicing in Philadelphia, New York and the U.S. Virgin Islands.

(CNN) -- If trials were predictable, they wouldn't happen.

You can root for a jury to see a case your way and disagree with its ultimate verdict, but you cannot criticize the jury system for being unpredictable. In that sense, a Florida jury's recent verdicts -- and nonverdicts -- against Michael Dunn demonstrate a fundamental truth about trials. They are not only unpredictable; they are designed that way.

The case against Dunn stemmed from an incident on November 23, 2012. Dunn, a 47-year-old white man, arrived at a gas station in Jacksonville, Florida, and parked next to an SUV that contained Davis and other black teenagers. When Dunn complained about loud music coming from the SUV, words were exchanged and Dunn ultimately fired a gun that killed Davis. Dunn said he saw a gun barrel pointing out of the SUV, but the prosecution said there was no gun.

Danny Cevallos
Danny Cevallos

Dunn was found guilty of three counts of attempted second-degree murder as to the other occupants of the car, but the jury was not able to reach a verdict on the first-degree murder charge in the death of Jordan Davis.

In the eyes of critics, this case was a "sure thing" for the prosecution, and anything less than guilty verdicts across the board is now considered by them to be a miscarriage of justice. Guilty verdicts were expected.

That sentiment belies a fundamental misunderstanding about the criminal justice system: With juries, there is no such thing as a "sure thing."

Case against Michael Dunn continues
Is Dunn verdict Zimmerman?
Race and justice in Florida

No one can accurately predict how each juror might perceive the evidence, argue a case in deliberations or be persuaded by his or her fellow jurors. Jurors can and do bring their own life experiences to the jury room, and no two jurors are the same.

Yet anyone who has waited for a jury's verdict has engaged in the same helpless jury astrology because there is simply no hard science to predict their behavior. The best example is the rabid divination of the meaning of juror questions: those inscrutable, handwritten missives intermittently sent out to the judge and read to the lawyers in chambers.

Tonyaa Weathersbee: An empty verdict, a hollow victory

This system is about as sophisticated as note-passing in grade-school algebra, but just a few lines from an innocuous jury inquiry will leave seasoned attorneys pondering the hidden meaning and the potential direction of the deliberations. The bottom line is this: Reading these tea leaves is an exercise in futility. There's no way to predict a verdict with certainty.

To many observers, including me, this was a strong prosecution case, but not a sure thing. In fact, it's generally only the close-call cases that go to a jury. The most obvious cases of guilt or nonguilt should result in plea agreements or voluntary withdrawals by the prosecution.

Simply look at the statistics. The vast majority of all cases, criminal and civil, are resolved before trial. Verdicts are simply too risky for either side, especially to put up a case that they believe is a loser. A jury trial means each side believes their theory of the case is strong enough to roll the dice in this riskiest game of all.

Whether you agree with the jury's verdict or not, these verdicts give us some insight into the jury's thought process.

The jury convicted on attempted second-degree murder for shots fired at the other passengers in the SUV with Davis. It makes sense. By Dunn's own concessions, he intentionally shot at a vehicle speeding away from him. Even if Dunn's testimony were completely believed, at best only Davis was the aggressor, so Dunn had a minimal self-defense claim against the other occupants.

But, the verdict on attempted second-degree murder may have put a figurative "cap" on Dunn's level of intent. In other words, the jury may have agreed that Dunn's level of intent as to all victims was consistent -- perhaps not the specific intent to kill characteristic of a first-degree murder, but something slightly less.

In the case of second-degree murder, this could be an intentional act so indifferent to human life it evinced a depraved mind.

The "depraved heart" variety of murder is often analogized, coincidentally enough, to law students as closing your eyes and shooting into a crowd with a gun. It may be true that you did not actually intend to hit anyone, but the act was so likely to kill that your level of intent is just below that of specific, premeditated murder. That law school example used to explain the concept to students is eerily similar to the facts here.

While it's possible that the jury was hung up trying to apply the law of self-defense, it may also be that the jury simply had trouble with the definitions of homicide. It's understandable. They are complicated for lawyers and lay persons alike.

Florida's standard jury instructions are available online. Take a look at each of the suggested instructions for the different degrees of murder and manslaughter. They, like all jury instructions, are complicated. They do not get much less complicated just because the judge reads them slowly and out loud to the jury. They involve abstract concepts and seemingly overlapping definitions of nuanced "states of mind."

It's very likely that the jury was hung up on whether self-defense applied, but they also may have deadlocked over the different definitions of homicide.

Despite public frustrations, this was a win for the prosecution. It secured a successful verdict on four of five counts that will, because of Florida's minimum mandatory sentencing scheme and the defendant's use of a firearm, send Dunn to prison for at least 60 to 75 years. That's day-for-day: no gain time, no early release except for a win on appeal.

Plus, the prosecution can retry Dunn for the killing of Davis. When a judge discharges a jury on the grounds that the jury cannot reach a verdict, the double jeopardy clause of the Fifth Amendment to the Constitution does not bar a new trial of the defendant.

The double jeopardy clause provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb in criminal ... cases." If the state reprosecutes the Davis killing, Dunn will certainly feel as if he's being tried twice for the same crime. Constitutionally, however, a retrial following a deadlocked jury is permissible.

Defense counsel deserves recognition as well.

They hung a jury on what many observers expected to be a clear-cut murder conviction. Even without the wave of public acrimony against the defendant, this was always an uphill self-defense case. It was clear from the trial that the defense prepared this case and the client, and gave Dunn the best chance at a not-guilty verdict. Overall, a good job with bad facts for the defense.

The big question now is whether we will see the state of Florida retry Dunn for the murder of Davis.

On one hand, they have achieved a virtual life sentence on the other convictions, which achieves one of the philosophical goals of punishment: incapacitation and isolation of Dunn from the community.

It does not achieve another goal of punishment for the Davis family: retribution. The state has indicated for now that it will retry Dunn, but if it does, one thing will remain certain:

There are no sure things in retrials, either.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

The opinions expressed in this commentary are solely those of Danny Cevallos.

ADVERTISEMENT
Part of complete coverage on
updated 11:30 PM EST, Sun December 28, 2014
Les Abend: Before we reach a conclusion on the outcome of AirAsia Flight QZ8501, it's important to understand that the details are far too limited to draw a parallel to Flight 370
updated 8:27 PM EST, Fri December 26, 2014
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
updated 11:17 AM EST, Fri December 26, 2014
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
updated 8:19 AM EST, Fri December 26, 2014
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
updated 10:05 AM EST, Fri December 26, 2014
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
updated 8:03 AM EST, Fri December 26, 2014
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
updated 6:27 PM EST, Sat December 27, 2014
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
updated 1:33 AM EST, Thu December 25, 2014
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
updated 6:12 PM EST, Tue December 23, 2014
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
updated 8:36 AM EST, Wed December 24, 2014
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
updated 2:14 PM EST, Wed December 24, 2014
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
updated 3:27 PM EST, Tue December 23, 2014
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
updated 10:35 PM EST, Tue December 23, 2014
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
updated 7:57 AM EST, Tue December 23, 2014
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
updated 11:29 PM EST, Mon December 22, 2014
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
updated 4:15 PM EST, Tue December 23, 2014
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
updated 1:11 PM EST, Tue December 23, 2014
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
updated 1:08 PM EST, Mon December 22, 2014
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
updated 1:53 PM EST, Sat December 20, 2014
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
updated 3:19 PM EST, Sat December 20, 2014
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
updated 5:39 PM EST, Mon December 22, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT