Cases & Controversies in the News
Lessons From the Zimmerman Trial
The law abides though justice may suffer. That tragic insight may well be one of the painful lessons to emerge from the George Zimmerman trial. Fortunately, more constructive consequences have followed, with the hope of more promising developments to come.
In 2012, there were 1009 murders in Florida. That’s about one murder every 8 hours and 42 minutes. So why were so many people, both in the US and abroad, fascinated by this particular homicide? If there is one thing that helps to account for so-called “notorious” cases it is that they are not simply about the facts they present. These trials symbolize larger conflicts in society. They are social dramas in which contested stories, metaphors, and character types do battle in court, and in the court of public opinion. In this respect, they are both culture-disclosing and culture-shaping events.
In the Zimmerman trial a 28 year old man of mixed Hispanic-Caucasian heritage shot an unarmed 17 year old African-American male. Zimmerman claims that Martin looked “suspicious”. Why, Zimmerman asked , was he idly looking into windows in a gated community on such a rainy evening? But did Zimmerman’s concern reflect the recent spate of burglaries in his neighborhood, or was his suspicion triggered by all too familiar stereotypes: a young black man wearing a hooded sweatshirt in a predominantly white neighborhood?
The accounts of what transpired between Zimmerman and Martin that rainy evening conflicted in court. Did Zimmerman chase after Martin? Did Martin leap out of nowhere and suddenly punch Zimmerman in the nose, fracturing it? Was it Zimmerman’s cries for help that could be heard on several 911 emergency calls placed by residents, or was it Martin? Was it Martin who straddled Zimmerman and who beat his head against the ground, or was Zimmerman on top?
Witnesses testified in support of each of these contested scenarios. In addition, forensic evidence showed that Zimmerman’s nose had been struck and probably broken, and that his head had been cut and bruised during the confrontation. Martin suffered two wounds: a scraped knuckle, consistent with landing a blow, according to the defense pathologist, and a single fatal shot to the heart. The same expert testified, persuasively, that burn marks on Martin’s shirt indicated that he must have been leaning over at the time of the shooting, leaving two to four inches of space between his shirt and his skin.
So who was the aggressor here? Zimmerman was, of course; but in response to what? According to the applicable law in Florida, lethal force is permissible if Zimmerman reasonably believed that he was facing serious physical injury at the time that he shot Martin. And it is the state’s duty to prove beyond a reasonable doubt that Zimmerman was not acting in self-defense.
In the end, the jurors either believed Zimmerman’s claim that he shot in self-defense, or they had reasonable doubt as to whether the self-defense claim was valid. Either way, the defense must win. If the state fails to carry its burden of proof, the jurors are required by law to find the defendant not guilty. That is what this jury did. And then the public, having witnessed Zimmerman’s televised trial in the court of public opinion, reacted.
Was this verdict justice for Trayvon Martin? No. He should not have died. George Zimmerman may have been legally permitted to use lethal force, but it was wrong for him to do so. It was wrong because he had made a terrible mistake. Trayvon Martin was no trespasser. He was returning home, to his father’s fiance’s residence in the complex. What we will never know for sure, but what many people suspect, is that Trayvon Martin was profiled that evening for being black in the wrong place at the wrong time.
Progress has been made, but the United States is not yet a post-racial society. President Obama’s comments after the trial testify to both of these truths. Too many blacks know what it feels like to be singled out for the color of their skin rather than the content of their character. This is what America’s first African-American president acknowledged on national television when he poignantly observed that Trayvon Martin could have been him 35 years ago. And so one lesson of this trial becomes plain. Work remains to be done to wring out the last remnants of racial prejudice from our hearts and minds. That national conversation continues apace. And a new one has begun, namely: are the laws governing self-defense morally defensible? Over 30 states now have laws similar to the “stand your ground” self-defense law in Florida. What kind of society do these laws help to create? Do they invite excessive violence? That debate is now under way and positive change may come of it.
Finally, there is the issue of politicizing criminal trials. Initially, the Florida police were reluctant to charge Zimmerman with murder. Political intervention led to that charge. Here, too, a conversation may be needed regarding prosecutorial overcharging and the risks of subjecting the criminal justice system to self-serving decisions by vote-seeking officials.
The Zimmerman trial enacted a tragedy fraught with legal, moral, and political implications. In the aftermath, our obligation is to make sure the right judgments are made about what worked in the legal system and what didn’t, and what changes are needed to ensure a better future.
On October 3, 2011, an Italian appeals court overturned Amanda Knox’s murder conviction and ordered her immediate release from prison.
In 2009, both Knox and her former boyfriend, Raffaele Sollecito, were found guilty of the 2007 sexual assault and fatal stabbing of Knox’s house-mate, Meredith Kercher. Knox was sentenced to 26 years in prison. She served four years before being released.
The acquittal was based largely on the collapse of forensic evidence linking Knox to the crime. The prosecution had claimed that Knox’s blood was on the murder weapon. But their DNA testing turned out to be so shoddy that the appeals court felt compelled to reject it as unreliable.
Less discussed than the DNA evidence gone wrong in this case is the role played by a digital animation that helped lead to Knox’s conviction.
On November 20, 2009, in his closing argument at trial, Perugian prosecutor Giuliano Mignini showed a computer-generated simulation that presented images of an avatar-Amanda killing an avatar-Meredith. The animation ended on a gory photo of Ms. Kercher that had been taken at the scene of the crime.
It now appears that this restaging of the murder was a mere fantasy. This is how the line between fact and fiction may be blurred beyond recognition not just in advertising, films and interactive video games, but in the legal process itself. Here, too, powerful unconscious erotic fantasies are at work. Just the sort of thing that feeds mass media frenzy and fuels the production of popular legal spectacles.
In real life, Amanda Knox was convicted of being a sexual monster who engaged in a sex game gone wrong. But now we are left to wonder: whose sexual fantasy was really in play here?
You can view a digital simulation of the murder scene here: http://news.bbc.co.uk/2/hi/uk_news/8395012.stm.
And here is a knock-off version, popular on the web, re-imagining the digital animation that the prosecutor showed to the Italian judge and jurors who convicted Knox of murder (a simulation of a simulation, if you will):
For more on Amanda Knox and the move toward digital trials go to: http://www.project-syndicate.org/commentary/sherwin1/English.
DOAR Litigation Consulting has been seeking to apply its expertise in trial graphics, narrative, and public relations to the Deepwater Horizon oil spill in the Gulf of Mexico.
As you may recall, on April 20, 2010, during the final phases of drilling an exploratory well at Macondo located approximately 40 miles off the Southeast coast of Louisiana, the Deepwater Horizon drilling rig exploded. The explosion and ensuing fire caused the platform to sink in 5,000 feet of water, killing 11 workers and injuring 17 others.
The Deepwater Horizon oil spill prompted the filing of numerous lawsuits against multiple defendants. Major defendants include: BP, lessee of the rig and project developer of the Macondo well; Cameron, manufacturer of the blowout preventer; Transocean, who provided the Deepwater Horizon rig and its crew to BP; Halliburton, the contractor that installed and cemented production casing at the Macondo well; and Anadarko/MOEX, BP’s drilling partners.
BP asserted that Transocean was completely responsible, suggesting that every safety system, device, and well procedure on the Deepwater Horizon failed. BP alleged that Cameron’s design and manufacture of the BOP did not meet the standards of a reasonable manufacturer, and that its maintenance and modification did not meet the standard of a reasonable service provider. BP has asserted that Halliburton’s improper conduct, errors, and omissions, including fraud and concealment, caused and/or contributed to the incident.
Halliburton recently filed an amended lawsuit against BP, claiming BP hid critical information about the Macondo well that led to the explosion. They alleged that BP compromised safety for profit, and then conspired in a cover up after the fact to avoid liability. Halliburton has also filed cross-claims against Cameron and other manufacturers of rig equipment, and made claims against responder organizations for contributory negligence.
Against BP, Transocean is seeking contractual protections arising from indemnity clauses in the drilling contract executed between the companies, and claims to enforce provisions of its contract imposing full responsibility on BP for the fire, blow-out, or any other uncontrolled oil and gas flow. They asserted strict liability claims against the manufacturers of rig equipment, and breach of warranty claims against Halliburton and M-I Swaco, claiming those contractors failed to perform their duties. Transocean also seeks damages from BP and others for the total loss of the Deepwater Horizon as well as $20 million in additional damages.
Here’s how Doar envisions preparation for trial:
For more info, go to: http://www.doar.com/deepwater/index.asp.
Former “Desperate Housewife” star Nicollette Sheridan, is suing the show’s creator and producer, Marc Cherry. The complaint, filed April 6th, alleges that Cherry hit Sheridan in the face, and when she complained to executives at ABC, she was fired. Sheridan is seeking $20 million dollars for wrongful termination and loss of future earnings. She is also claiming damages for assault, battery, and gender violence. She writes that Cherry created a hostile work environment by behaving in an extremely abusive and aggressive manner. The complaint contends that Cherry’s“treatment of Sheridan, including his physical assault and battery of her, occurred because he is a homosexual man and she is a heterosexual woman.” Other “Housewife” stars have come out against the current lawsuit.
Denise New, a mother from Arkansas is facing harassment charges related to an incident involving her 16-year-old son’s Facebook page. The complaint alleges that New hacked into her son’s Facebook account to monitor his “extracurricular” activities.
Former Illinois Gov. Rob Blagojevich recently appeared as a contestant on Donald Trump’s reality TV show “Apprentice”.Blagojevich and former chief of staff John Harris are currently facing one count of conspiracy to commit mail and wire fraud and one count of soliciting bribes as a result of sweeping pay to play and influence peddling allegations, including the alleged solicitation of personal benefit in exchange for an appointment to the United States Senate as a replacement for Barack Obama, who had resigned after being elected President of the United States. Blagojevich’s erratic behavior on the Trump show has prompted speculation about how he will fare in his upcoming trial. Prosecutors initially expressed concern that Blagojevich’s semi-celebrity status might taint the jury pool [Clips of his final appearance]
The wife of “Survivor” producer Bruce Beresford-Redman went missing on April 5th 2010. Several days after Redman reported his wife’s disappearance he was arrested. Police discovered the body of his wife in the sewer at the Moon Palace resort where the family was on vacation in Mexico. American news media picked up the story together with allegations that Redman was having an affair with another woman and that the couple was seen fighting a day before Redman reported his wife missing.
The Toyota Motor Corporation is facing lawsuits on several fronts in response to the company’s recent recall of several models of vehicles for a sticking accelerator pedal.
The National Highway Traffic Safety Administration (“NHTSA”) will seek $16,375 in civil penalties for a four-month delay in notifying the agency about the problem. Auto manufacturers are legally obligated to notify NHTSA within five business days if they determine that a safety defect exists. NHTSA learned through documents obtained from Toyota that the company knew of the sticky pedal defect since at least September 29, 2009.
The California Orange County District Attorney (“OCDA”) filed a consumer protection suit against Toyota, alleging that the company knowingly sold vehicles with acceleration defects. The suit seeks up to $2,500 in penalties for each violation under California’s Unfair Business Practices Act.
The US Judicial Panel on Multi-District Litigation recently consolidated over 150 pending lawsuits against Toyota. These complaints are related to independent injury claims on behalf of by vehicle owners who say their cars are worth less.
CNN has set up a special section on their website devoted solely to the Toyota recall.
In response to the lawsuits and bad press generally, Toyota has set up its own website rebutting claims against the company and attempting to improve consumer perceptions.
Social networking sites are now being used as a way to determine alibis for potential defendants. For example, Rodney Bradford was arrested and held for twelve days on suspicion of robbing two people in a Brooklyn public housing complex. However, the prosecution dropped the charges after Facebook verified that Bradford had posted a message on his Facebook page one minute before the robbery occurred, presumably from another part of the city.
Cell phone privacy is at risk: depending on your carrier, almost anyone may be able to find out about any phone call you make.
For more, go to: CBS news story/video
Connecticut’s highest court ruled that Michael Skakel, a member of the extended Kennedy clan, was properly tried, convicted and sentenced for the 1975 murder of a 15-year-old neighbor with whom he was infatuated.
The justices laid some blame upon Skakel’s defense lawyer Michael Sherman, a high-profile attorney and frequent guest legal analyst on Court TV and other cable news networks. Among other things, the court wrote that Sherman failed to object at trial to the prosecution’s use in closing argument of an audio-visual montage featuring Martha’ Moxley’s image in conjunction with an excerpt from a tape recording in which Skakel told a book writer about how he had allegedly masturbated in a tree above the spot where Moxley’s body was later found.
Viewing the matter on the merits, the appeals court rejected out of hand Skakel’s complaints about what the defense described as the prosecution’s “movie”:
“The state engaged in appropriate and effective advocacy by using trial exhibits to highlight certain evidence and inferences. See Manuet, T.A.,Trial Techniques (Little, Brown 4th Ed. 1996) p. 369 (“Successful courtroom techniques maximize the use of exhibits and other demonstrative aids . . . . Closing arguments should use. . . those exhibits admitted in evidence that corroborate and highlight the main points of [the] argument.”); Lubet, S., Modern Trial Advocacy (Nat’l Inst. for Trial Advocacy, 1997) p. 493 (“[V]isual aids can be extremely valuable during final argument. Counsel is generally free to use any exhibit that has been admitted in evidence and also to create visual displays solely for the purpose of final argument.”)…
“The state’s display of Martha alive, and then of her body at the crime scene while playing this passage was not a blatant appeal to “passion” as defendant suggests. The state appropriately displayed the crime scene pictures to define the defendant’s panic. The changing frame from the picture of Martha alive to the crime scene photos underscored what he knew at that point, and Mrs. Moxley did not.
“Just as the state should not be deprived of its most valuable evidence unless there is a compelling reason to do so, the state should not be prohibited from making its best arguments. The state’s use of audio and photographic exhibits during argument was a matter of effective advocacy. The state did not, as defendant claims, distort the evidence in any respect. By placing certain exhibits next to defendant’s words, or by displaying two related exhibits simultaneously, the state was making explicit the inferences it was asking the jury to draw. This is the job of an advocate… [Belli, M.M., Modern Trials (2d Ed. 1982), Vol. 5, Section 70.18 (“To increase learning, appeal to as many of the five senses as you can”)].”
See also: Brian Carney and Neal Feigenson, “Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy through Interactive Media Presentations.”
See also: Findlaw’s “Legal News and Commentary” – Special coverage of the war on terrorism
Trial and terror: The Islamic Society of Boston is claiming that a media conspiracy has unfairly linked them to terrorists in an effort to halt plans for a new mosque in Roxbury, MA. The Society has filed libel suits against two Boston news outlets, the Boston Herald and Channel 25.
Both sides claim to be fighting for core First Amendment freedoms.
For more, see: The Boston Phoenix
Concerning the questionable legality of the arrest and prolonged custody of suspected terrorist and U.S. citizen, Jose Padillo, Robert A. Levy, of the Cato Institute, writes: “When Americans are taken into custody, they have the right to retain an attorney. Congress must first set the rules. Then an impartial judge, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution.”
For more, see “Jose Padilla: No Charges and No Trial, Just Jail“
You can find clearly written overviews of upcoming Supreme Court cases at: Cornell’s Legal Information.
The Institute is now offering free details on high-profile cases before they are argued at the nation’s highest court. The reviews are written by Cornell law students for the lay public. The goal is to help non-lawyers grasp the issues at stake and why they are important.
The Institute also offers free public access to a vast collection of U.S. laws, court decisions and related legal materials.
For reliable legal news in general see:
See also Peter Suber’s comprehensive “Legal News Sources.”
Behind the Michael Jackson indictment: visit The Smoking Gun
On the “circus-like” atmosphere that attended the Jackson trial: visit here.
The presence of cameras inside the courtroom has sparked much debate. For more on this subject visit npr’s “Justice Talking.”
See also CSPAN’s “Television and the Judicial System.”
The MacDonald’s coffee cup case and the tort reform movement:
The New York Law Journal
November 23, 2004, Tuesday
Distorting the Law: Politics, Media and the Litigation Crisis
Reviewed by Richard K. Sherwin
[Richard K. Sherwin is the author of “When Law Goes Pop: The Vanishing Line Between Law and Popular Culture” and professor of law at New York Law School.]
“I do believe the lawsuits — I don’t believe, I know — that the lawsuits are causing health care costs to rise in America. That’s why I’m such a strong believer in medical liability reform.” — George W. Bush
“John Edwards and I support tort reform. We both believe that, as lawyers.” — John Kerry.
Everyone seems to support tort reform these days. But do people really know what they are buying into? If John Kerry and other members of his party had read William Haltom’s and Michael McCann’s new book one wonders whether they would have been so quick to hop onto the tort reform bandwagon. Did they realize how this popular brand of “common sense” was constructed, and what went into it? Did they realize that once you adopt a particular way of talking about things you inherit a whole belief system?
“Distorting the Law” provides readers with an understanding of why, when John Kerry endorsed tort reform, he unwittingly joined battle in the culture wars — and for the wrong camp. Based on extensive interviews and an analysis of nearly two decades of news reporting in the mass media, the authors demonstrate how routine coverage of tort litigation sensationalizes carefully targeted cases — and in the process exploits popular negative stereotypes about lawyers, perpetuates myths about the so-called “litigation crisis,” and disseminates legal folktales that effectively shifts blame from corporations to “irresponsible” victims. The book vividly illustrates how legal lore coursing through the mass media frames the way most people speak and think about tort reform.
As Haltom and McCann make clear, the tort reform movement wasn’t born overnight. It took decades of concerted and patient planning. From the 1970s on, lobbyists, policymakers, intellectuals and journalists worked together to manufacture a new form of legal lore. These “populist tort reformers” drilled down deep and came up with a fine-grained common sense belief system that could be embedded in and disseminated by popular tort stories. These were mythic tales, parables really, with iconic characters and vivid details. For example, have you heard the one about the psychic who lost her powers after a CAT scan and sued for damages? How about the guy who sued after having grown addicted to milk? Or what about the elderly woman who won a $2.9 million jury verdict against McDonald’s after she spilled a cup of hot coffee in her lap?
These popular [and grossly distorted] law stories could be tag lines in a Jay Leno comedy monologue. In fact, most of them have been. And that’s the point. Told from a certain angle, these anecdotal tales are funny, and pathetic, but they pack a powerful moral punch. It’s what they’ve been designed to do. They warn us about  slackers, self-professed victims, who insist on blaming others for their own faults;  greedy and unscrupulous lawyers who play the system for cash; and  hapless jurors who get hoodwinked in the process. These carefully chosen narratives reveal the plague of lawyers in our midst and the litigation explosion that they’ve unleashed.
Of course, social scientists over the years have marshaled empirical data showing there is no litigation explosion. As Marc Galanter has recently written, in most forums “the absolute number of trials has undergone a sharp decline.” According to Haltom and McCann, it’s a familiar scenario. The experts trot out their statistical findings and expect that “the truth shall set us free.” The problem is, no one seems to be listening — certainly not the public.
Why not? Part of the reason, as Berkeley linguist George Lakoff explains, is that “Frames trump facts.” The words we hear and use, like the images we see, make sense in reference to particular frames [including images, metaphors, and anecdotes]. When Johnny Cochran tells jurors to “keep your eyes on the prize” he is cuing up images from the popular civil rights documentary by that name. Likewise, when prospective voters are shown a “menacing” image of Willie Horton or a pack of wolves, they are being cued to experience fear in connection with domestic security concerns. To comprehend or be moved by a fact, it has to fit the frame.
What, then, is the ordinary common sense frame for tort reform? In a brilliant analysis, Haltom and McCann show that it’s the same frame that dominates the conservative social policy agenda championed by President Bush and the Republican Party. At its core lies an ethos of personal responsibility, self-discipline and self-reliance. As Governor Bush admonished in his State of the State Address in 1995: “Discipline, strong values, and strict rules go hand-in-hand with our love for our children … [We] must build community-based boot camps and detention centers … Texas must lower to 14 the age at which the most violent juveniles can be tried as adults.” Lakoff calls this the “Strict Father” frame. And it’s this frame that the tort reformers have tapped into.
Backed by conservative think tanks like the Manhattan Institute for Policy Research, and using sophisticated marketing and publicity techniques through organizations like the American Tort Reform Association, tort reformers have exploited popular scripts lifted from the culture wars play book. The moral of their stories is clear: lawyers are undermining the core ethos of personal responsibility and self-reliance by fostering frivolous “litigation lotteries” which promise undeserved windfalls.
Haltom and McCann have made a real contribution by helping us to see the connection between tort reform and the deeper cultural movement of which it is a part. Some of this, of course, is hardly new. Public relations and the engineering of consent have been with us since the early twentieth century. For example, in 1922, Walter Lippmann wrote: “A leader or an interest that can make itself master of current symbols is the master of the current situation.” Over the years, spin techniques have gotten better — the beneficiary of numerous insights garnered from social psychology, cognitive anthropology, and linguistics. In addition, the scene of spin has shifted from arenas focused exclusively upon the spoken and printed word. Advocates must now adapt their message to new forms of communication technology, most notably the ubiquitous electronic screen.
“Distorting the Law” offers an unparalleled introduction to the social construction of meaning in the tort reform domain. Its lucid and highly informative analysis invites lawyers to rethink the role and nature of persuasion in the age of mass media. It will not do simply to rail against the media for colluding with the distortions propagated by pop tort reformers, as if the absence of a countervailing frame, with an equally compelling core ethos supported by equally vivid images and anecdotes, were not also to blame. Mass culture is not about to go away. It is incumbent upon advocates to understand its various logics, counter its distortions as best they can, and harness its unprecedented power to communicate preferred values and interests.
For more on the MacDonald’s coffee cup case in particular, and the tort reform movement in general, see:
See also PBS’s The Journal – Editorial Report