George Zimmerman, Rodney King and a jury of peers
This just in from Fox News: “Fair trial for Zimmerman not likely on home turf, say legal experts.” Well, actually one expert quoted in the story makes that precise argument: Harvard Law professor Alan Dershowitz. The second expert, criminal defense lawyer Mark Bederow, says only that pretrial publicity, including NBC’s doctored tape of Zimmerman’s 911 call, could prejudice potential jurors (wherever they live, presumably). The third expert, defense lawyer Lawrence Lustberg, agreed that finding jurors in the community who have not made up their minds “will require casting a wide net.” But he also said: “The single most important thing as to whether you get a fair trial is who’s the prosecutor, who’s the defense attorney and who’s the judge?” That’s three things, but none has to do with where a trial is held.
But back to Dershowitz. His point is not the same as Bederow’s, namely that adverse publicity might taint a jury’s judgment. Rather, Dershowitz says, “the major criteria of a fair trial is: Could a juror who voted to acquit feel safe back in his community, feel that he wouldn’t be hassled or criticized by community members?”
But if one thing is clear from the last few weeks, it’s that “Justice for Trayvon” is on the lips not only of Trayvon Martin’s father and his neighbors but also of people across Florida and across the country. Changing the venue for Zimmerman’s trial wouldn’t solve the problem (if it is a problem) of jurors feeling pressured to convict because otherwise they would be “hassled or criticized.”
So it seems that a change of venue would be pointless. Regardless of where they live, prospective jurors have been inundated with publicity about the Martin killing and may well have friends or neighbors who would resent an acquittal for Zimmerman. As in other controversial cases, lawyers and judges will just have to take the time to identify jurors who can be trusted to put preconceptions to the side and consider only the evidence offered in court. Where the trial is held is irrelevant.
Or is it? After the acquittal of the L.A. police officers charged in the beating of Rodney King, there was speculation that the verdict might have been different if the venue for the trial hadn’t been moved to Simi Valley, an overwhelmingly white suburb. Holding the trial in Ventura County resulted in a jury without a single African American. Is that an argument for a court considering a change of venue to take into account the demographics of possible locations? In the Zimmerman/Martin case, that would mean looking for a district likely to produce a certain number of black jurors.
In a 1992 law review article written after the King verdict, Peter M. Kougasian of the Manhattan district attorney’s office presented an intriguing argument for considering the demographics of an alternative venue. (He wasn’t the only one to come up with the idea; the California Legislature passed a bill requiring judges to look at “demographic characteristics” of potential trial sites. Gov. Pete Wilson vetoed the bill, but current court rules say that “demographic characteristics may also be an important consideration” in choosing an alternative trial site.
Noting that, historically, juries were drawn from the area where a crime was committed (originally because they might be more knowledgeable about the crime), Kougasian argued: “It is now time to recognize that jurors bring to their deliberations perspectives and knowledge that may, in part, be a product of their race, gender and economic class.” For a black juror at a Zimmerman trial, those perspectives might include the experience of being racially profiled.
The problem with this approach is that it seems designed to provide the victim, not the defendant, with a jury of his peers. I suspect that is what a lot of people seeking “Justice for Trayvon” want, but Zimmerman’s lawyer would probably have other ideas.