Sunday, July 14, 2013

On The Zimmerman Verdict

The George Zimmerman trial will undoubtedly result in many column inches being dedicated to the racial component of the decision, of the fact that an unarmed black teen minding his own business can be accosted by a stranger, fight back, be shot and not have that action be deemed a murder. Sadly, this is not exactly news. The devaluing of our fellow citizens the darker the hue of their skin or because of the God they worship is, regrettably, a stain that we cannot seem to overcome.  But to me, the other message reinforced in the not guilty verdict against Mr. Zimmerman is that there is a significant thumb on the scales of justice that skews outcomes based on your economic status, not just your race or religion. 

The dirty little secret of the criminal justice system generally, and many prosecutor's offices specifically, is that without the vast majority (in most jurisdictions more than 90%) of cases plea bargained, the system would simply collapse. This is owing to the length of time trials take, the limited resources many offices have to investigate crimes, gather witnesses, take their attorneys off the other cases they are handling and devote the time and energy needed to take a case to trial. The reason people with means are able to either get highly favorable plea deals or take their chances at trial is that well-compensated defense attorneys can deploy a number of tactics that bleed the prosecutor - pre-trial motions, lengthy voir dire, the use of jury consultants, slick presentations and taking advantage of a culture immersed in more Law & Order and CSI type shows that make juries expect there to be a high level of sophistication and immutability to whatever evidence is presented to them. Prosecutors, on the other hand, are far happier to take the low hanging fruit of plea bargains, maintain high conviction rates and avoid embarrassing acquittals.

While it is true that some "high profile" cases do result in convictions (the recent Jodi Arias prosecution being one), meting out justice day-to-day looks very little like what we see in these televised spectacles. The sad reality is that the same incentives driving prosecutors to keep their conviction rates high work in the same way for overworked public defenders and solo practitioners representing the vast majority of poor and low-income defendants, who are incentivized to plea bargain because some combination of decent evidence and lack of resources compels them to. In most cases, this probably does not offend what we view as fairness because hey, a lot of people are guilty of the crime they are accused of (ever watch speeding tickets get knocked down to get a "guilty" plea?) and offering them a deal is a reasonable triage of the more serious versus the less severe; the cases of strong evidence (witnesses, fingerprints, confessions) versus ones where each side has risk if the case goes to trial; however, between exonerations secured by organizations like The Innocence Project and the disparity in sentences levied against those with greater means, we need not see the Zimmerman acquittal as anything other than confirmation that our criminal justice system is still inequitable. 

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