Wedding Cakes Are White: An Analysis of the George Zimmerman Verdict

The triumph of rhetoric over reason…..

  • The essence of a good story is a villain.  The villain is not the client.
  • Challenge the jurors to leave the burden of proof at the State’s door.

This is an excerpt of Mark O’Mara’s rhetoric, part of a very STRONG CLOSING.

“There was some anger and hostility and ill will and spite maybe that night; it just had nothing to do with George Zimmerman,” said defense attorney Mark O’Mara as he wrapped up a more than three-hour defense of his client. “Well that’s not true. It had something to do with George Zimmerman. He was the victim of it.”. . . [1]

MARK O’MARA: You can’t fill in the gaps. You can’t connect the dots for the state attorney’s office in this case. You’re not allowed to. This is their burden. They have to take away reasonable doubt.

They have to look at this case and say to you, ladies and gentlemen of this jury, hi, we’re the state. We have proved this case beyond and to the exclusion of every reasonable doubt, because we have connected every dot that fall into line that leads to nothing but conviction.

And they just didn’t.[2]

The prosecutor seemed to know the case, but the rhetoric employed was not as strong. 

The prosecutor in this case did not prove George Zimmerman Guilty beyond a reasonable doubt.  The State of Florida failed to meet their burden.  We know this, because that is the conclusion the jury came to, and this is the system that we use to meet out justice in this country.  We use this system to ensure that the innocent do not go to prison, even though it will certainly mean that some people, not innocent, may go free.  In our country, we would rather that we err on the side of justice to innocent people, than err on the side of retribution, in an effort to imprison every guilty man.[3]

JOHN GUY, Florida District attorney closed with the following (in my opinion, fluffy) directions: “It is enough, with your common sense. It is enough. And I’m not asking you to fill gaps. I’m asking you to do what you do every day. Start from the beginning, get to the end, and apply your common sense.” [4]

The problem with the justice system is not that rhetoric is employed to solve the issue of whether a man charged with a crime is Guilty beyond a reasonable doubt.

The problem is that this system of justice is not every man’s system of justice.  This is true for two reasons:

  1. The Wedding Cake Model
  2. Racism in American Prison Outcomes

 

“The wedding cake model” is a theory posited by Samuel Walker about the way the criminal justice system works in America.  According to Walker’s theory,

“The first layer of Walker’s model is made up of the celebrated cases involving the wealthy and famous, such as O. J. Simpson and Michael Jackson, or the not-so-powerful who victimize a famous person—for example, John Hinckley, Jr., who shot President Ronald Reagan. Other cases fall into the first layer because they are widely reported in the media and become the subject of a TV investigation. . . .Cases in the first layer of the criminal justice wedding cake usually receive the full array of criminal justice procedures, including competent defense attorneys, expert witnesses, jury trials, and elaborate appeals. Because of the media focus on Level I cases and the Hollywood treatment of them, the public is given the impression that most criminals are sober, intelligent people and most victims are members of the upper classes, a patently false impression.” [5]

This is the Level of the Wedding Cake that George Zimmerman ended up on, because civil rights activists insisted on putting him there.  Public outcry included a demand for a thorough investigation and, potentially, charges against Zimmerman from leaders such as President Obama, the NAACP, U.S. Rep. Corrine Brown, and Al Sharpton.[6] As the Associated Press and NBC reported, “[Zimmerman] was not charged for 44 tumultuous days in which the case generated large protests in several cities, turned a hooded sweatshirt like the one Martin wore into a symbol of solidarity, and drew the attention of President Obama, who said, “If I had a son, he’d look like Trayvon.”[7]

The next level of Walker’s Wedding Cake Model is as follows:

Level II The second layer contains serious felonies—rapes, robberies, and burglaries. Police, prosecutors, and judges all agree that these are serious cases, worthy of the full attention of the justice system. The seriousness of the offense places them in the Level II category:

They are committed by experienced, repeat offenders.

The amount of money stolen in a burglary or larceny is significant.

Violent acts are committed by a stranger who uses a weapon.

Robberies involve large amounts of money taken by a weapon-wielding criminal.

 

Offenders in such Level II cases receive a full jury trial and, if convicted, can look forward to a prison sentence.

 

 

This is the Level of the Wedding Cake model which should have included George Zimmerman.  In some ways, it did.  He committed a violent act with a weapon on a stranger.  He received a full jury trial.  He was, as is sometimes the case in Level Two cases, not found guilty.

 

But the discretion employed by police officers at the outset (no criminal charges for 44 days) and the verdict both point to Level One:  This case was special.  Not because he was famous, or wealthy, and not only because he was the Man The Media Loved to Loath.  Why?

 

The rest of the Wedding Cake Model is familiar to anyone involved with the CJ System:

 

Level III Though they can also be felonies, crimes that fall in the third layer of the wedding cake are either less serious offenses, committed by young or firsttime offenders, or involve people who knew each other or were otherwise related.  Level III crimes may be dealt with by an outright dismissal, a plea bargain, reduction in charges, or most typically, a probationary sentence.

 

Level IV The fourth layer of the cake is made up of the millions of misdemeanors— disorderly conduct, shoplifting, public drunkenness, and minor assault— that are handled by the lower criminal courts in assembly-line fashion.  Few defendants insist on exercising their constitutional rights, because the delay would cost them valuable time and money, and punishment is typically

a fine or probation.[8]

So, civil rights leaders, Black people in America, liberals like myself, are angry about the verdict.  WHY?

If civil rights activists and politicians insisted on putting George Zimmerman on the very top layer of the Wedding Cake, and if the Defense Attorney’s rhetoric was stronger than the prosecutor’s, and if the prosecutor failed to meet his burden of proving Guilt beyond a reasonable doubt, if we as Americans insist that a man be proven guilty beyond a reasonable doubt, then George Zimmerman IS RIGHTFULLY A FREE MAN.  What in the world is left to complain about?

 Well, to put it simply: wedding cakes are white.

In 2001, the Lifetime Likelihood of Incarceration for Black males was 1 in 3. 

In 2001, the Lifetime Likelihood of Incarceration for Hispanics males was 1 in 6.

In 2001, the Lifetime Likelihood of Incarceration for white males was 1 in 17.

In 2001, the Lifetime Likelihood of Incarceration for Black females was 1 in 18. 

In 2001, the Lifetime Likelihood of Incarceration for Hispanic females was 1 in 45.

In 2001, the Lifetime Likelihood of Incarceration for white females was 1 in 111.[9]

As Jeremy Travis continues in his book, But They All Come Back, Facing the Challenges of Prisoner Reentry, “In 2002, slightly more than 10 percent of African-American men between the ages of 25 and 29 years old were in prison, compared with 2.4 percent of Hispanic men, and 1.2 percent of white men.

Do you see it? Do you see how not everyone is treated as well as George Zimmerman was by the criminal justice system? 

It is a context where Black men go to prison and white and Hispanic men do not, that George Zimmerman’s Not Guilty verdict wounds America.

As a defense attorney, I am glad that George Zimmerman got such wide latitude of discretion at the outset, and that the defense attorney was able to play Jenga with the prosecutor’s case, knocking down the structure of a conviction one piece at a time.  I am extremely glad that we use a system of justice which demands a standard of reasonable doubt to convict.  It speaks to a deep sense of fairness that I have.

I just wish every defendant got to be treated to the same system of justice George Zimmerman encountered: even those who happen to be Black.

 

 

 

 

 

 

 


[3] See, e.g., William Blackstone, in Commentaries on the Laws of England (1769).  Blackstone wrote that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” (1) This formulation is not the only version of the doctrine. For example, in his book on Evidence (1824), another British scholar, Thomas Starkie, insisted “that it is better that ninety-nine … offenders shall escape than that one innocent man be condemned.”  Source:http://www.thefreelibrary.com/Is+it+better+that+ten+guilty+persons+go+free+than+that+one+innocent…-a0135337535. Retrieved July 14, 2013.

[5] Source:  Essentials of Criminal Justice, edited by Larry J. Siegel and Joseph J. Senna ch. 1THE NATURE OF CRIME, LAW, AND CRIMINAL JUSTICE, Retrieved July 14, 2013 at http://www.cengagebrain.com.mx/content/siegel06025_0495006025_02.01_chapter01.pdf. Retrieved July 14, 2013.

[8] Source:  Essentials of Criminal Justice, edited by Larry J. Siegel and Joseph J. Senna ch. 1THE NATURE OF CRIME, LAW, AND CRIMINAL JUSTICE, Retrieved July 14, 2013 at http://www.cengagebrain.com.mx/content/siegel06025_0495006025_02.01_chapter01.pdf.  

[9] Figure 2.2 Bonczar and Beck (2001) in But They All Come Back, Facing the Challenges of Prisoner Reentry, by Jeremy Travis, p. 24

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