Justice: When you get in a traffic accident and the other guy gets the ticket.
On the eve of the beginning of the George Zimmerman trial, it may be worthwhile to consider how to evaluate what has been happening, and what will likely happen. In analyzing the events yet to come–and the George Zimmerman case will not be the end, regardless of the outcome–consider that all of this is essentially a battle between “social justice” and justice.
Justice may be considered to be an outcome of a criminal case in consonance with the law and the rule of law. It embodies the ethical and honorable actions of every entity in the criminal justice process. If the police make false arrests or commit perjury, justice is seriously damaged or impossible, and respect for the rule of law diminishes. If prosecutors file charges without sufficient cause, if they overcharge in the hope of extorting a plea to a lower charge, if they commit perjury or do not live up to their obligation to provide discovery, if they collude with other attorneys with financial interests in their case, the same consequences–for individuals and society as a whole–occur. If judges do not do their jobs and act as a curb on the unethical and overzealous actions of the police and prosecutors. If they take sides, or legislate from the bench, the same consequences–and worse–occur.
Justice is fragile, yet absolutely necessary. Its correct and consistent application consonant with the rule of law is the glue that holds together our representative republic. If citizens can’t believe that the rule of law holds, anarchy become possible, even likely.
Social justice, on the other hand, is nothing more than the seizure of financial and/or political spoils, usually to the advantage of specific, favored victim groups and the politicians that pander to them. In most cases, it requires ignoring the Constitution, the law and the rule of law, and usually requires forcing others–or the taxpayers–to subsidize something the victim group wants.
Consider the statue under which Zimmerman is charged, as I noted in Update 2:
The Florida Murder statue applicable to the Martin case—murder in the second degree—reads:
(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
A brief FindLaw commentary on the statute is available here.
This statute, like most, contains various elements. In this case three. Because the linking word is “and” rather than “or,” all three elements must be proved before an arrest warrant is issued. And there can certainly be no conviction unless all three are proved beyond a reasonable doubt. The elements:
(1) A human being must have been unlawfully killed, and;
(2) by means of an act imminently dangerous to another, and;
(3) that act must reveal evidence of a depraved mind regardless of human life (but without premeditation to cause the death of any particular person).
Trayvon Martin was killed, but if Zimmerman acted in self-defense, and the Sanford police and the local prosecutor concluded that he did, no arrest should have ever taken place. Unless the special prosecutor can prove that Zimmerman did not act in self-defense, and their investigator has admitted they have no evidence to refute Zimmerman’s self-defense claim, there can be no conviction–in a court where justice holds sway.
Unless the prosecution can proved Zimmerman did not act in self-defense, the second and third elements are moot–unless social justice is the goal.
How it can be proved that Zimmerman demonstrated evidence of a depraved mind regardless of human life when he called the police and remained on the line with them until they both believed that Martin was long gone goes to the heart of the social justice v. justice issue.
Again, all of the evidence indicates that Zimmerman wanted nothing more than to keep Martin in sight for the responding police. All of the evidence indicates that he was attacked by Martin, and that just as Zimmerman claimed, he was punched in the nose, knocked to the ground, and his head was repeatedly smashed into a concrete sidewalk. The affidavit, supposedly written by the two special prosecutor’s investigators with the supervision of Bernie de la Rionda either ignores these facts or misstates them. It does not provide probable cause to support a single element, yet a judge issued an arrest warrant based on that affidavit. No judge should have ever authorized a warrant for such a patently defective, incomplete and deceptive affidavit. In fact, no judge should have allowed this case to progress to trial based on that defective affidavit. The case should have been dismissed–with prejudice–long ago.
During the trial, Mark O’Mara can be expected to move for dismissal of the case several times. He’ll probably do so when the state’s case is finished, but Judge Nelson will almost certainly refuse. He’ll do so when his case is done, but Judge Nelson will almost certainly refuse.
In fact, the very fact that this case has not been thrown out is compelling evidence that justice is not involved, but social justice is. Social justice relies on the rule of the mob, the support of the media, and the collusion of politicians. It also requires an aggrieved and aroused victim group. In this case, all are actively involved. The New Black Panthers, a racist group, has placed a bounty on Zimmerman; the President and the First Lady have inveighed on behalf of Martin and social justice; the media’s collusion–and their exposed lies–are well known; and of course, the collusion of politicians such as Florida Governor Rick Scott, AG Pam Bondi, AG Eric Holder, and a wide variety of other politicians, local and federal, is well-documented. Threats of mob violence hang heavy over the trial. Prospective jurors expressed the fear that a not guilty verdict would endanger their lives, and the disruption of tourism that racially charged riots would cause all but ensures that justice will be ignored.
A Little-Remarked Upon Motion:
On or about June 21, Donald West filed a response to a motion by the state to limit “res geste” statements by Zimmerman in this case. Such statements fall under exceptions to the hearsay rule. Generally, they fall under the “excited or spontaneous utterance” exception. The must be made soon after the event, they must relate directly to the event, and they must not be premeditated (a legal dictionary definition is available here).
This motion brings up a significant factor in analyzing Judge Nelson’s decisions. Judges can err in two primary ways: interpreting the law and applying the law. Some laws and precedents are so well known, such fundamental building blocks of the law, that any judge that fails to understand them cannot be forgiven such error. In this case, the overturning of Judge Nelson’s decision refusing to allow the deposition of Benjamin Crump is an example. The law cited by the defense was well settled and not at all difficult to understand, but Nelson decided to ignore it. This left the appeals court no alternative but to reverse her decision. How then did she get that wrong? Is she so poorly educated in the law, so poorly informed that she just didn’t know the law? Is she unable to read the citations provided by the defense?
West’s response to the motion is nothing more than a reminder that specific and long established exceptions to the hearsay rule exist and that Judge Nelson may not issue a generic order blocking all such statements prior to trial. Such an order would add yet another fact of reversible error to a very long list she has already begun.
The prosecution doubtless made the motion as a means of compelling George Zimmerman to testify, something the defense would prefer to avoid. If statements made by Zimmerman to others–if they’re wrongly categorized as inadmissible hearsay–Zimmerman would surely be forced to testify, exposing himself to all manner of prosecution dirty tricks.
West listed this example:
Witness 13 and his wife heard a commotion in the back of their townhome. They heard yelling and then heard a shot. Witness 13 grabbed a flashlight and went outside to wee what had happened. Within seconds of the shooting, W13 observed Mr. Zimmerman who was staggering, bleeding and breathing hard. The witness observed blood on Mr. Zimmerman’s face and the back of his head consistent with someone having been injured in a fight. Mr. Zimmerman asked W13 if he was bleeding? Witness 13 said ‘yes” and W13 asked Mr. Zimmerman what had happened? Mr. Zimmerman told W13 that the other person was ‘beating me up’ and he shot him.
Clearly, the prosecution wishes the judge to exclude all such admissable utterances. This would have the effect of forcing Zimmerman to the stand to provide the full context of the encounter to support his self-defense claim.
Various media accounts suggest that Nelson granted the prosecution’s motion. If she upholds it, that would clearly be reversible error. Any judge seeking justice would know that a blanket order prohibiting any and all hearsay would be grossly improper. I suspect we’re at the point where Judge Nelson will be forced to consider such issues on a point by point basis during the trial, which is unusual, to say the least. Should she refuse to allow statements that clearly are admissible, each and every instance of such refusal would be reversible error.
The Expert Testimony Order
On June 22, Judge Nelson issued a 12-page order excluding the testimony of Thomas Owen and Dr. Reich (my reporting on their testimony is available here and here). I’ll save readers the trouble of reading Judge Nelson’s legal prose unless they feel the compulsion.
What is extraordinary about this order is its length. The principle involved is the Frye test, which is actually very simple. Nelson produced this explanation:
In utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand… The general acceptance under the Frye test must be established by a preponderance of the evidence.
In other words, is the science used to obtain a result reliable and recognized as accepted by the scientific community. This is not a difficult test to apply, nor is it an unusual or rarely used facet of the law. Judge Nelson could have easily done an acceptable order with two or three pages, merely pointing out that the methods of Owen and Reich were not reliable and recognized as scientifically acceptable, noted the testimony of Dr. Nakasone, Dr. French, Dr. Doddington and Dr. Wayman to that effect, and be done. Her order denying the deposition of Crump amounted to nothing, yet this one ran 12 unnecessarily long pages. Why?
Analysis: The behavior and actions of the judges in this case and of the prosecution can be fully understood only in light of their pursuit of social justice, which is embodied by The Narrative. The Narrative is, in fact, the prosecution’s case. It is their opening statement, their case in chief, their cross-examination strategy, and their closing statement. Therefore, it is wholly non-factual, relies on conjecture and deception for proof, assumes as fact racial motivations on the part of Zimmerman where non existed, and requires the prosecution to lie, dissemble, conceal exculpatory evidence, and otherwise deny justice. Because the pursuit of social justice always embodies a sort of pseudo-religious fervor that can brook no doubt or opposition, anyone holding another view–in this case, the facts and the law–must be evil and racist. Any true believer challenged about their social justice inspired beliefs is unable to calmly and logically discuss them; they are always driven to anger and must attack. Corey and De la Rionda’s behavior in this case are textbook examples.
To be sure, one can attribute some of the prosecution’s behavior to other factors such as arrogance, spite and even incompetence, but what about the judges? Judge Lester, the first judge in this case, was removed by the appeals court due to his obvious anti-Zimmerman bias (see Update 14 for the reasons). He was replaced by Judge Nelson who has made no directly prejudicial statements about Zimmerman, but whose rulings, taken as a whole, have no less improper and damaging effects on his ability to obtain a fair trial.
As I previously noted, Judge Nelson should have dismissed this case immediately based on the grossly insufficient and unethical affidavit alone. Her rulings may be reasonably read to indicate the desire to protect the narrative and those trying to prop it up, such as Cory, de la Rionda and Crump. Remember that social justice is always motivated by and inextricably linked with politics, and the political dimensions of this case run deep.
Is it possible that both judges in this case were merely incompetent? That they knew so little about the law and the kind of demeanor any jurist must display that they made fundamental errors that caused them to be thrown off the case and reversed? Or is it more likely that they were motivated not by law, not by the rule of law, not in the pursuit of justice, but in the pursuit of social justice?
That every issue of the admissibility of evidence and trial expectations has not been settled before the trial begins is unusual indeed. Andrew Braca at Legal Insurrection, is writing on the Zimmerman Case. I recommend his writings in general, and this one in particular. No judge wants to enter into a contentious, highly charged trial with any of these issues unsettled, yet that’s the status quo. This makes sense only if social justice is the goal.
If Judge Nelson refuses to allow Zimmerman’s statements, which are clearly admissible under the exceptions to hearsay, that can only be a political, rather than a legal, decision. It would have the very direct effect of forcing Zimmerman to testify, a violation of the Constitution, and another point of law about which there can be no disagreement or mistake in application: no defendant may be compelled to testify, nor can any negative inference be made as a result lf their decision not to testify.
I’ve little doubt that Judge Nelson will do whatever is necessary to see that this case goes to the jury, despite having more than sufficient cover under the law to have dismissed it long ago. Such a decision is inherently political. Her ridiculously lengthy opinion on Owen and Reich suggests political rather than legal sensibilities. No doubt she is aware that she is being watched by the Court of Appeals, but because that decision stands in opposition to the narrative, she owes a much greater burden of proof than if she was merely applying well understood and long settled law. There was no interpretation to do. It is one thing to be concerned about seeing that justice is done. It is quite another to try to appease the forces of social justice.
Remember that Judge Nelson is allowing the Scheme Team and the Martin parents to hold press opportunities in the courtroom. I’ve never seen anything like this. I’ve never known any judge to allow such a thing, as it can only directly imply that the scales of justice are rigged.
Expect the prosecution to support the narrative. Expect the defense to argue the facts and the law. Expect Judge Nelson to support the narrative, but to strain mightily to avoid doing so too obviously.
In a court where the judge was actually trying to do justice, I would be able to venture an opinion on the outcome. In this case, there is no way to know. Yes, the facts and the law are fully on the side of the defense, but if that truly mattered, this case would never have been filed in the first place. Much will depend on Judge Nelson and to what degree she does or does not have a fit of conscience that causes her to scamper to the side of justice, or social justice.