Gadfly reporter Geraldo River told a Fox News interviewer Sunday the special prosecutor in the George Zimmerman case should never have brought charges against Zimmerman.
I could not disagree more. In an era when the public distrusts all politicians -- including prosecutors and even the U.S. attorney general -- I think this is precisely the sort of case that should have been decided by a jury of our fellow citizens. And remember, both the prosecution and defense had the power and the right to select the jurors they wanted, and exclude those they didn't want.
I am not expressing my personal opinion as to whether Zimmerman was guilty or not guilty. Nor do I condone any misconduct by the prosecutor, such as withholding exculpatory evidence. But in her decision to have the matter tried by an impartial jury, the special prosecutor did precisely the right thing.
In my years as an assistant state's attorney, and later as a circuit court judge, I came to have very definite opinions about bringing charges or not bringing charges.
Prosecutors can decide whether to charge and, if they do, to charge the greatest offense or a lesser offense. This is called "prosecutorial discretion."
Most often, the prosecutor makes that decision himself. But he also can present the matter to a grand jury and give it the option of whether to change and what charges to bring. Either way, it is a one-sided presentation; the defense gets to say nothing.
Under our system of justice, however, one thing is clear: While a prosecutor or grand jury may charge, and while a president or a governor may demand an individual be brought to justice, it is the petit jury, the trial court jury, that is the sole finder of fact. It is the petit jury that weighs the evidence and evaluates the credibility of witnesses. And it has the great advantage in that it hears all the relevant evidence -- both prosecution evidence, as well as defense evidence.
The national press has spent a great deal of time inveighing against the "stand your ground" provision in Florida's law of self-defense. I look at the Martin-Zimmerman case rather as a traditional self-defense case. And I look at our self-defense statute and believe the Florida jury decided its case under similar principles.
The Illinois statute provides:
" A person ... is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony."
Our statute does not mention "a duty to retreat." But where retreat is a reasonable option, or where retreat would render unnecessary the need to use deadly force, I believe an Illinois jury would be justified in finding no self-defense.
That being said, when your head is being pounded against the ground, and the next blow driving your head against the concrete may produce death or great bodily harm, and where retreat appears impossible, the reasonable and necessary course may well be to shoot your assailant to save your own life.
That is why I think the Florida special prosecutor did the right thing in bringing this case before a jury. Indeed, I see many reasons for doing so:
1. This was a racially charged case.
2. An unarmed young man, who may or may not have been an aggressor, was shot to death.
3. A petit jury exists to determine the facts, to judge credibility of witnesses, to draw reasonable inferences from proven facts, and to act as the sole judge of the facts. (This excludes the judge, the police, prosecutor and even the president of the United States as appropriate judges of the facts.)
4. The case is tried in an adversarial setting with the prosecutor doing his best to prove guilt, and the defense doing its best to establish reasonable doubt or innocence. The jury will get the fullest possible presentation of evidence, and will be assisted by arguments of counsel in understanding the evidence and showing them the inferences to be drawn from it, as well as the court's instructions as to the law.
5. The jury, with its six-person collective memory, is better able than any one individual to sort through the jumble of evidence and decide:
a. Whether Trayvon Martin's mother was telling the truth when she testified that her son was screaming for help, or whether Zimmerman's mother was telling the truth when she testified her son was screaming for help.
b. Which of the witnesses were most credible, and to compare and weigh the testimony of each witness.
c, Whether from all the facts, Zimmerman had an intent to murder, or an intent to defend himself.
d. Whether Zimmerman was in imminent danger of death or great bodily harm.
e. Whether Zimmerman's use of deadly force was reasonable.
f . Whether it was necessary.
g . Whether Martin was pounding Zimmerman's head against the concrete, and whether in doing so Martin was committing a forcible felony.
In short, in a case of this nature, the best way to find the truth is to put the matter before an impartial jury, assisted by an impartial judge and competent attorneys.
In this case, the jury was freely chosen by both the prosecution and defense. Nothing suggests that the jury harbored an iota of bias or that their verdict was anything but on the law and the facts.
Posted Online: July 17, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
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