While handicapping a high-profile criminal trial before it begins is always a chancy undertaking, the outline -- if not the outcome -- is beginning to emerge in the murder prosecution of George Zimmerman for the Feb. 26, 2012, fatal shooting of unarmed black teenager Trayvon Martin.
At a May 28 hearing, Circuit Judge Debra S. Nelson ruled that the trial would begin June 10, and that Zimmerman's attorneys would not be able to raise their leaked information about Martin when questioning prospective jurors. "You can't try the case in jury selection," she said. She also barred any mention of the damaging material in the trial's opening statements.
The information, including Martin's marijuana use, his boasts about fighting and typical, urban teenage, macho posturing, including a texted photo of a gun, seemed designed by the defense to lay the groundwork for what might be called the "thug defense." In that narrative, the 17-year-old victim would be portrayed as a menacing figure, slinking around in the darkened, gated community, who attacked Zimmerman -- rather than the other way around.
"Trayvon Martin is not on trial," said Benjamin Crump, the Martin family attorney, after the hearing. Family members want the case, which they believe is a matter of civil rights and equal justice, decided on what is presented inside the courtroom, rather than through selective leaks.
The courtroom, located in a high-rise justice center, was packed, and spectators and media were required to pass through two separate security checks. Members of both the Zimmerman and Martin families sat in the first two rows reserved for them.
In past decades, attorneys for accused rapists would typically engage in character assassination, besmirching the reputation of the victim, a practice that is now largely prohibited. But in the Trayvon Martin case, even if the harmful material is excluded by the judge during the trial (she said Tuesday she was reserving judgement on that issue), it has already become part of the larger narrative that is bound to contaminate the potential jury pool.
This is critical to the fate of the case because, like many criminal trials, the outcome may be determined before the first courtroom argument is made, the first witness called. That is, in the selection of a six-member jury. Given the racially charged nature of the case, it would be extremely difficult to imagine a black juror voting to acquit George Zimmerman of all charges. So an all-white jury would be a major, possibly fatal problem for the prosecution. "That's going to be an issue," Crump acknowledged.
By population, Seminole County is just 10 percent African American, which may or may not be represented in the 500-member pool of potential jurors, which is random.
However, defense attorneys -- with the advice of their highly sophisticated psychological profilers -- need to be extremely careful about the way in which they control the number of black jurors accepted for the panel. They must be particularly judicious in their use of what are called "peremptory challenges" -- those exclusions that can be arbitrary, requiring no explanation. So they are likely to rely on challenging African American -- or liberal white -- candidates for "cause," reasons like prejudice or extensive exposure to pre-trial publicity.
If there is no last-minute plea-bargain, even at this late date, another key factor in the trial's outcome will be Judge Nelson's charge to the jury at the conclusion of the proceedings.
Zimmerman is now charged with second degree murder, which requires proof of intent to kill, and carries with it a maximum sentence of life in prison. However, embedded in the second degree charge, are what are called "lesser included offenses," including voluntary and involuntary manslaughter, which carry a maximum sentence of 15 years. Even a subtle reference to a particular verdict in Nelson's instructions can point the jury toward a certain outcome.
After the hearing, Zimmerman's brother, Robert Zimmerman, Jr., claimed that media and political pressure in the shooting's aftermath was responsible for the second degree murder indictment, which he said was an "improper charge." At least in that respect he may be right.
The Florida state statute describing involuntary manslaughter reads as though it were written to describe the uncontradicted facts of the Trayvon Martin shooting. That is, that the armed Zimmerman, against the advice of a police dispatcher, continued to stalk Martin until an altercation ensued that resulted in Martin's death. A person would be guilty of involuntary manslaughter if he or she acted with "culpable negligence," in a manner that demonstrated a reckless disregard for human life.
Given the defense's theory of the case -- that Zimmerman did not intend to kill Trayvon Martin when he followed him through the teen's father's gated community, and that in fact Martin turned on the neighborhood watch volunteer and attacked him -- a verdict of involuntary manslaughter might provide a conflicted jury an opportunity to arrive at a compromise, "split-the-difference" decision. Involuntary manslaughter is the trial's real battleground.