Stop blaming the juries!
Once again, a criminal trial with racial overtones has caused an outbreak of criticism over a jury verdict and the jury system, by those who have a professional obligation to know better.
This time, it’s the so-called “loud music case,” that just ended with the accused, Michael Dunn, convicted of four charges (three of attempted second-degree murder) with the fifth charge, first-degree murder, resulting in a jury stalemate. Dunn claimed that he acted in self-defense when he repeatedly fired a gun at an SUV containing four African-American teens in 2012, over an altercation regarding their playing music too loudly. One of those teens, unarmed 17-year-old Jordan Davis, was killed by his gunfire.
CNN news anchor Don Lemon, in a series of rants on his show and also on Twitter, announced to his audience that Dunn should be convicted of first degree murder, and that Lemon would be outraged if he was not. Last year I praised Don Lemon several times, endorsing him (somewhat facetiously, it is true) for President, and also selecting him at year’s end as 2013’s most ethical broadcast media figure. Perhaps all my praise went to to Don’s head; whatever the reason, he was irresponsible as well as legally ignorant in his comments regarding the Dunn case. Fox News’ Greg Jarrett explained what was wrong with Lemon’s position in a series of tweets, the gist of which was that Lemon wasn’t in the courtroom, didn’t hear the evidence, wasn’t present during jury deliberations, and was therefore unprofessional to abandon objectivity and his duty to inform his viewers rather than inflame them. He also pronounced Lemon a pompous, pretentious jerk, which, based on his performance in this instance, was a fair diagnosis.
Lemon’s retort forfeits my presidential endorsement and requires me to declare that his Most Ethical Broadcast Media Figure was a mistake:
…thus proving that Lemon IS a jerk, and worse:
- He compares Jarrett to Dunn, a convicted killer
- He plays the race card (Jarrett is white, Lemon is black), by comparing his own TV rant to the “loud music,” and
- Especially despicably, injects gratuitous age bigotry into his response: Lemon is a decade younger than Jarrett.
As for the substance of Lemon’s objections to the verdict, I have written about the topic before, here, here, and here. This time I will leave the exposition to my friend and colleague, Rick Jones, who has already done a superb job explaining the verdict in the Dunn case on his blog, Curmudgeon Central. You can read Rick’s post, “Third Refrain: “Don’t Blame the Jury,” here. I could not improve on it.
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Source: Mediaite 1,2,3; Curmudgeon Central
Ethics Alarms 
The fact that it was Corey (of Zimmerman fame) leading this case (and Lawyer McDreamy – also of Zimmerman fame – in a supporting role) leads a rational observer to realize that Corey doesn’t know how to charge a case.
That, or she has a Murder 1 fetish.
Had they charged Murder 2, they would have gotten a conviction (based on the fact that they got attempted Murder 2 convictions for the other passengers). But no, they have to be assholes about it and overcharge.
And don’t get me started on Lemon and his ilk. I got to listen to Nancy Grace (who apparently has a deep connection to teenage black boys if you know what I mean and I think that you do) call in and cry on the phone as she talked about this case.
And the next fuckwit that mentions Stand Your Ground in relation to this case is going to be beaten with something solid enough to stove in their skull, but soft enough so that it takes me a really long time to do it.
But as Rick points out—so what? The guy’s going to prison for a long, long time.
And depending on how they work the sentence, for far longer than he’ll be alive.
Would I like to see him officially convicted in the death of the kid? Sure. But only by an actual jury, and only for the crime he actually committed.
Technically, I suppose you could find a way to see him guilty of Murder 1, but it is a huge stretch. Murder 2, however, is a no-brainer.
Which would be why Corey din’t charge that and went with Murder 1 – that woman is in the top five worse lawyers to ever draw breath. I would hire Beth before I hired Corey, and I would do jail time before hiring Beth…
I blame the overreaches on the way Florida law works. Disclaimer: I’m no expert, but did at least read into it during the Zimmerman case. From what I understand, the lesser degrees of a crime are automatically considered lesser included offenses. So, if they charge with Murder 1, the jury could hypothetically find him guilty of any form of homicide less than or up to that point. I’m sure there’s nuances, but that was a widespread tidbit of info during the “did they overcharge” debate regarding Zimmerman.
Anything that allows for such finagling is completely objectionable. It provides incentive for massive overcharging- you have an enormous club to wield over the accused’s head to attempt to force a plea bargain (even if they didn’t do it! Who cares, the case gets cleared, right?), you get to posture about how “tough on crime” you are, and then you can try and lean on the jury to just find the defendant guilty of SOMETHING, if it gets that far. Sounds like this jury had analysis paralysis- they didn’t find him not guilty, they were hung. Makes me wonder if there were just too many options.
Actually, it isn’t automatically a lesser included – this was a question asked by the Zimmerman jury. If it isn’t charged, or explicitly stated to be a lesser included charge, then the jury can’t rule on it, if I recall correctly. I’ll shoot an e-mail to a friend to confirm.
You may well be right. I just read the Curmudgeon piece and he’s under the same impression I am- that there were lesser includeds, but to convinct on one precludes any further prosecution for that specific crime- they can’t reel in a Murder 2 conviction as a lesser included and then re-try for Murder 1. That means that it’s entirely possible that all the jurors actually wanted to convict, but couldn’t decide between Murder 1, Murder 2, and manslaughter- if you’re SURE he’s guilty of a worse offense, you might choose to hang the jury and ensure a retrial rather than compromise to a lower offense.
However, if the lesser includeds are NOT the standard, I still stand by what I say about overcharging being a loathsome way for prosecutors to intimidate defendants, grandstand to the public, and fob the heat off on the jurors for doing their job.
Well, my opinion on Curmudgeon’s ability to analyze legal issues that have a heavy hook into Leftist ideology is, shall we say, low.
I was of that understanding before reading his piece, he just also is under the same impression as I am about the included offenses rule (and also thought of the “everyone thinks he’s guilty but can’t agree on what” angle, which I hadn’t).
It isn’t automatic, as you say. It has to be argued, and evidence needs to be framed, somewhere along the line, to support the charge. Which apparently it was in this case.
So the lesser offenses are NOT automatically included, but they were included in this case and a hung jury still resulted? Interesting.
A hung jury on ONE CHARGE. That means the judge can declare the jury hung regarding that charge, and the prosecution can seek a new trial. The jury found Zimmerman not guilty of the main charge, and not guilty of any lesser charges (that weren’t specifically charged as well. They aren’t obligated to have verdicts on any but the charged crimes. In Dunn’s case, there WERE other charged crimes.
Gahhhhh my brain is melting why is the law so hard? So what about Curmudgeon’s proposed interpretation: Part of the Jury wanted to convict on one charge and part of the jury wanted to convict on another- does that hang the jurty on both charges?
Also I thought a hung jury could always lead to a new trial.
A hung jury can lead to a new trial, but it doesn’t have too – the state can decide to not bother with a retrial.
So the jury hung on first degree murder, found guilt on all other charges, so the first count was a mistrial and can be retried.
Yes. I misinterpreted Jack’s response- my head is now officially filled with goo, it’s been a long day and law confuses me. Can we go back to the currency trivia thread? 🙂
No.
I want a memorandum on the Florida 1st degree murder statute, and whether or not 2nd Degree is automatically a lesser included charge. Make sure all citations are in ALWD format, specifically Rule 12. For all instances of “local rules”, assume that there are no special local rules that diverge from Florida criminal procedure…
And welcome to my hell.
I think this does as good a job of explaining what happened as I’ve seen. In Zimmerman, there was only one victim, hence the entire prosecution was pitched to the highest charge, the prosecution didn’t argue or frame one for a lesser charge, and they lost the gamble. In this case, attempted second degree murder was charged for each of the kids that wasn’t killed, and first degree murder for the one who was. And yes, the jury could have agreed on second degree )completed, not attempted) murder for the deceased victim.
Remember, the penalties for attempted murder and successful murder are the same.
They sure picked some winners for pictures of Dunn. The one in that NYT piece looks like he’s all “Hewwo…” and the other pictures (especially the one of him in the plum/reddish cardigan) make him look like some kind of boy-hungry pedophile…
Also, judging from the NYT article, it appears that Mary Anne Franks will be the first on the list for my “tender ministrations”…
I shouldn’t be surprised, the woman is a fucking moron.
OK, OK, I’ll do your homework, but you have to give me a plausible method for destruction of microDNA contamination and confirmation of sterility. There is no rule 12.
Fire, and I would probably use a knife…
Why, were you thinking of something else? 🙂
Oh, sorry, thought you meant sterility as in a person being sterile.
Yeah, I would stick with fire. And to verify? I dunno… Sift through the ash, maybe?
I think they’d frown on me burning down the entire building and testing the ashes for contamination. Frown on it, not that it wouldn’t work…
I was not told that my solution had to be acceptable to asshole bureaucrats…
I boomerang the argument by asserting that ALWD is an abbreviation for All-Wheel Drive rather than a format, that the only “local rules” are Two Men Enter One Man Leave, and that when we pull off the Scott Jacobs mask it was really Old Man Carruthers from the abandoned amusement park the whole time. Check. Mate.
And I’d have gotten away with it too, if it wasn’t for you meddling kids…
Come on, Jack, what’s wrong with Lemon’s tweet? Everyone knows that conservatives are all rich old white male racists who hate young people and minorities, amirite?
It does rankle that he wasn’t convicted of murder. He killed another person who was not an imminent threat. I don’t see how stand your ground applies here. But, the fault was in the charge not the jury finding.
What Lemmon did is in a very small way similar to what he’s accusing Michael Dunn of doing. He’s scattershot ranting about a perceived wrong and doesn’t seem to care who he hits. Furthermore he’s mouthing off after having time to think about it and choosing to do it anyway. First degree assholery.
SYG isn’t relevant at all here – it was never an issue in this case, and is only mentioned as being somehow supported by the verdict by morons.
As for the “why wasn’t he convicted”, I can see why he wasn’t. First Degree Murder requires premeditation, and while it is possible to formulate premeditation in the heartbeat before the criminal act, it is also a hard idea to wrap your head around. I suspect that the hang-up for jurors was just that issue – was there premeditation.
Murder 2 doesn’t require that, and even Corey could have gotten a conviction on that count.
Particularly because the jury convicted of Attempted Murder 2 for the other occupants of the car- if shooting into the car and not killing them is attempted Murder 2, it’s pretty damn obvious that the shot(s) that DID kill someone are solid Murder 2.
Exactly. And if they didn’t convict on that, you can be pretty sure it was because it was not included.
Unless, as I said above, it wasn’t a guilty/not guilty hung jury but a jury hung between Murder 1 and Murder 2.
But if you find him guilty of murder 1, the rest of the room finds guilt on murder 2, and you holding out means no conviction, I would be shocked you wouldn’t vote for the lesser count. While I don’t know the exact wording of the statutes, I would imagine that Murder 2 is pretty much Murder 1, just without premeditation. So like I said, you could easily vote for that if you think there is guilt of Murder 1…
I mean, *I* would, but my faith in the stubborn pig-headedness of any randomly selected member of the public knows no bounds.
SYG isn’t relevant at all here – it was never an issue in this case, and is only mentioned as being somehow supported by the verdict by morons.
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SYG is like the dog whistle for the Liberal gun-grabbing crowd.
They hear that and they come running.
Thanks for point to Curmudgeon Central’s comments and analysis! That was a well-reasoned, articulate analysis of the case as I understood it (though I am a lawyer, I don’t practice criminal law so I am not a criminal law expert).
It seems that all the shouting voices would just like to dispense with 250 years of jurisprudence, skip over the inconveniences of an indictment, arraignment, discovery, pretrial motions, jury selection, trial stuff, and simply hop over the deliberations, omit the niceties of a verdict and/or sentencing and simply impose the maximum sentence allowed by law and execute him in the town square at High Noon. That would save the whole system a bunch of money and headaches because, well, we all KNOW he did it!
One thing I neglected to note in the post: Lemon’s “mind your own business” was also obnoxious, and wrong. Jarret WAS minding his own business, which is broadcast journalism, and he was policing his business, as he should. It is Lemon who wasn’t “minding his own business.”
One thing I neglected to note in the post: Lemon’s “mind your own business” was also obnoxious, and wrong.
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Just when you get to liking somebody and it turns out they are merely another jackass in a sea of jackasses. 😦
Yes. This whole incident is very disillusioning. I used to admire New Gingrich, too…
Meh, New Gingrich was just a marketing trick to boost sales of Gingrich Classic…
I am so very, very sorry…
As cruel flaggings of typos go, that was pretty good.
Any comment on this?
http://www.salon.com/2014/02/18/michael_dunn_and_open_season_on_black_teenagers_the_onslaught_of_white_murder/