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Jury chosen in Zimmerman case
Legal Insurrection reports that the jury is chosen. All women, 5 "white," 1 "hispanic." (I guess Florida has six person criminal juries, I forget what the constitutional rules are on that). Alternates are two men and two women.
Interesting that the prosecution got zinged for using pre-emptory challenges on four "white" women, and had two of those disallowed. If your pattern of pre-emptories suggests they're being used on the basis of race or ethnicity, the other side can challenged, and make you explain a good non-racial basis for them. Apparently the State couldn't come up with one for two of its challenges.
An all-female jury seems unusual, although with a six person jury it becomes more likely. A predominantly female jury is a common result, simply because you largely wind up with retirees (an employed person can't take off for weeks), and with women's longer lifespan they make up a bigger fraction of retirees. My mother outlived my father by seven years; my ex mother in law outlived her husband by seventeen.
UPDATE: Here's a discussion of the 6 person jury, at the Volokh Conspiracy.
UPDATE: The defense probably can't get in more evidence about T. Martin because of a quirk in the law of self-defense. Under English common law, the test for that was whether the defender's actions were necessary to protect against death or great bodily injury. American law transmuted that into whether the defender had a reasonable belief that his actions were necessary to defend against death or great bodily injury. Generally that favors the defender, but it hurts him where there is evidence that his actions really were necessary, but for reasons he did not know. A belief cannot be based upon data that the person did not know. That's probably the situation here. I've got a draft for self defense law here that would broaden that to cover cases where either the use of force was necessary, or the defender reasonably believed it was necessary.
UPDATE: Yep, the prosecution can make it relevant, unintentionally. That happened here, in the Harold Fish case. Fish claimed that the guy he shot ran at him, fists clenched, arms windmilling as he came on. In fact that guy had gotten into one or two fights where he began just that way. Judge ruled those fights couldn't come into evidence: they couldn't have been a basis for Fish having a reasonable belief, since he hadn't heard of them at the time. Court of Appeals reversed, confirming that general rule, but ruling that since the prosecutor had ridiculed the claim that someone charged with fists windmilling, it should been allowed in.
Interesting question: since Heller concludes that self-defense is a right, and the underpinnings of the 2A, could it argued that whether a person in reality had to act to defend their life is relevant, whether or not they knew of the other events? Why would a constitutional right depend upon belief but not upon reality?
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Oregon is the other state that doesn't require unanimity. As far as I know the Supreme Court has never ruled on whether the federal unanimity requirement is incorporated against the states. I think it should be, along with the grand jury requirement for indictment. I seem to recall even recently the Supreme Court has refused a case on this matter from Oregon.
To me, when the Sixth Amendment was drafted and ratified, it would have been common understanding of the time that a trial by jury involved 12 citizens and a unanimous verdict. That was the common meaning, so that's what it means, and the 14th Amendment applies that to the states.
If male and female were equally likely then among six person juries you would expect about 1 in 64 (which is .50^6) juries to be all female. But since females are more likely to be picked then it will happen much more frequently. If 60, 70, or 80% of jurors are female, then you would expect about 1 in 21, 1 in 8, or 1 in 4 respectively (.60^6, .70^6, or .80^6).
An all female jury sounds bad for Zimmerman.
And what's up with the judge excluding evidence of Trayvon's shady history? I can understand excluding that type of evidence if it goes against a defendant, but Trayvon doesn't have to worry about going to jail because of Jury bias. Zimmerman however needs to be able to establish the likelihood Trayvon might have attacked.
The most interesting piece of evidence I've heard, other than the commonly talked about stuff, is the deposition recording of the girl Trayvon was on the phone with at the time, who said Trayvon made it all the way home before deciding to turn back and confront Zimmerman. He could have just gone inside, but decided not to. I guess he wasn't too scared. Strangely, after hearing on the phone that Trayvon was being followed that night, and loosing phone contact at the time of confrontation, she didn't call help for Trayvon.
IANAL, but I don't believe the jury clause has been incorporated against the states via the 14th amendment. The below post discusses the possibility of overturning non-unanimous jury verdicts, not sure if it could also apply to juries that are smaller than 12:
http://www.volokh.com/2010/06/29/non-unanimous-criminal-juries/
When you are on your back on the ground with someone straddling you and slamming your head into the ground, it would seem a reasonable belief that action is necessary to defend yourself from serious harm.
The legal theory that Trayvon's background shouldn't be entered into evidence because Zimmerman couldn't have known it at the time of his decision to shoot is very interesting. If I were the defense lawyer I would say that whether Zimmerman knew it at the time is irrelevant, because if Zimmerman's story that Trayvon attacked him and was bashing his head on the concrete and went for Zimmerman's gun is true, then Zimmerman was indisputably justified in shooting. The only question then is whether Zimmerman's story is true. Trayvon's history and character seems highly relevant in answering the question of whether he was likely to attack as claimed by Zimmerman.
Take an extreme example to clarify my point. Imagine if Trayvon had been caught on video and convicted on multiple occasions of attacking neighborhood watch volunteers and cracking their heads on the concrete. Clearly that would be relevant to Zimmerman's case, even if it had happened in a distant town and he had never heard of it.
I suspect that the judge has only ruled that the defense can't introduce it directly. However, if the prosecution were to suggest that it's unreasonable to believe that the little angel would ever physically attack Zimmerman, then it should certainly be legitimate as rebuttal evidence.
Hasn't the prosecution already accused Zimmerman of being the attacker, despite Zimmerman's statements to the contrary? It seems like rebuttal evidence to the accusation would be allowed right up front. Or did the prosecution suggest Trayvon initiated a physical self-defense based on Zimmerman's pursuit?
I finally realized maybe why Trayvon attacked Zimmerman. Trayvon ran as Zimmerman followed. Perhaps when Trayvon realized that Zimmerman was not much of a threat, it may have occurred to him that he might be considered a coward for running if he didn't make a display of bravery by attacking. But then I guess not much explanation is needed when a self-described gangster starts a fight.
Ditto what Critic says. This case is about deciding who initiated the confrontation, not whether Z. was acting in self-defense at the moment he shot. It is whether TM or GZ started the physical confrontation that led to the shooting.
if the prosecution says that Zimmerman is a racist, wannebe cop, that's information that Travon Martin could not have when he did/didn't initiate the confrontation. So it's not relevant to deciding whether Trayvon was "defending" himself from Zimmerman when he broke Z's nose. So if the prosecution brings in Z's character re establishing the confrontation, it seems fair to introduce TM's character re establishing the confrontation.
Anyway, this case is probably "solved" by the information from the 911 transcript. From my understanding, GZ reported being watched by TM, who disappeared into the shadows. After a short delay, GZ followed, unable to see TM. At that point TM had a head start and should have been well on his way home. Instead he either stopped and waited for GZ, or backtracked and approached GZ. GZ reported TM watching when GZ was talking on the phone. But the confrontation happened after GZ hung up with the 911 dispatcher, and (I think) in the opposite direction from TM's house from his last position as reported by GZ during the 911 call.
So it looks like TM either waited in the shadows for GZ, or more likely backtracked. GZ could not see TM, but TM apparently could see GZ. So TM controlled the contact, and waited until GZ hung up the phone to initiate the contact.
It makes "sense" that an offended 6'2" teen would attack a smaller man who he does not realize has a gun.
It makes less sense that a guy who has called the cops 50 times before without this kind of problem, who as already asked the police to intervene, who knows the police are on the way, and who has a pistol, decides to chase down and fistfight a larger man.
Six does seem small. My memory from law school is that with a six person jury they all must be unanimous. Where as with 12, you could convict with some lesser number. In my area, you get twelve jurors and they still must be unanimous. I don't know what jurisdictions allow something less than unanimity, though I suspect Louisiana is one.