Public Criticism of Verdicts

Jeralyn Merritt sometimes goes a bit overboard:

The Bill of Rights was designed to protect the rights of the citizen accused from the awesome powers of the Government. It was not enacted to protect the rights of crime victims.

The presumption of innocence is a bedrock of our criminal justice system that applies to the person charged with a crime, not the victim of a crime.

Self-defense is an affirmative defense that may be raised by a defendant in court in response to a criminal charge.

When partisan politics threatens the Bill of Rights, progressives especially need to get their priorities straight: The Bill of Rights must prevail. Those who disagree do a disservice to the word "progressive." Their backwards thinking is just the opposite.

Merritt has blogged extensively about the Zimmerman prosecution, and she practices criminal defense, so it's reasonable to infer that she's aware of the following:

1. When a defense is available to a defendant as an affirmative defense, the defendant has the burden of proving facts sufficient to support the defense, normally by a preponderance of the evidence.

2. In Florida, a claim of "self-defense" is nominally an affirmative defense, but once the defendant presents any evidence of self-defense, even the defendant's own self-serving statement, the state has to disprove affirmative defense beyond a reasonable doubt.

3. There is no constitutional right (a) to a "stand your ground" rule of self-defense, (b) to have the state disprove your claim of self-defense, or (c) to the ability to raise self-defense at all in most contexts in which the state deems such a defense to be inappropriate.

Merritt asserts,

Trials are conducted in courtrooms, not living rooms. The public has a right to view the proceedings. It does not have a right to inject its opinions into the proceedings or affect the outcome. The jury must base its decision only on the testimony and evidence produced at trial and the law as instructed by the judge. Morality has nothing to do with it.

The Sixth Amendment guarantees a defendant the right to a fair trial by a impartial jury. The jury is composed of the six people selected in court after a rigorous process designed to exclude those who cannot be fair. The public is not a member of the jury. It has no vote. Which is a good thing because the vast majority of the public commenting on this and every other high profile trial are all too willing to take an eraser to the Constitution and condemn a person, without having observed the proceedings from start to finish, viewed the exhibits admitted or read the jury instructions.

Merritt has seemingly forgotten that nobody outside of the courtroom owes the defendant a presumption of innocence, and that it is in fact possible for somebody outside of the courtroom to look at a case and conclude that justice was not served.

Taken at face value, who can argue? The public has no right to "inject its opinions into the proceedings or affect the outcome." But the trial is over, criticism of the verdict has absolutely no impact on that verdict.

Merrett seems to have no problem with criticism of a verdict following a conviction. I doubt that Merrett would condemn critics of the wrongful acquittals in the Emmett Till case or other lynching cases . We, outside of the courtroom, do have the right to criticize the conduct of a jury, the procedures followed in a case, and the laws that we believe (rightly or wrongly) led to an unjust verdict.

The right of self-defense is a limited right emerging not from the language of the Constitution itself, but from common law. There is no question that it would be constitutional for the State of Florida to follow the practice of most other states and place the burden of proof for self-defense on the defendant. Were the State of Florida to pass a law that holds that under circumstances in which a person armed with a gun engages in any course of action that culminates with his shooting an unarmed person outside of his his own home, that person cannot claim self-defense or may do so only to mitigate the charge and not to obtain an acquittal, there's a good chance that the law would be held constitutional.

Had Zimmerman been required to prove self-defense in the same manner that is typically required in other states, odds are he would have convicted himself with his own testimony or would have convinced a lot more people of his sincerity. Given Zimmerman's past statements about the case, and the contradictions and holes in those statements, it was anything but a surprise that he chose to stay off of the witness stand. Those holes and inconsistencies don't necessarily establish guilt, but they represent a big part of why a shadow remains over this case.

Whether a person commenting on the verdict has scrupulously reviewed all of the available evidence or is talking through his hat, it's that person's right to look at a verdict and declare, "An injustice was done here, and we need to think about changing the law so that it doesn't happen again - or at least to ensure that it's a lot less likely to happen again." If a sufficient groundswell of opposition to the verdict arises that we have a public policy discussion, that's normally going to be a good thing - even in those situations where people who know the details of the case often find themselves frustrated by how little the general public knows of the actual facts.

The Narcissistic Side of Twitter

In thinking about Twitter, and the reason it lives on despite its core functionality being replicated by services like Facebook and Google Plus, two things occurred to me. First, Twitter achieved its initial rise due to an influx of celebrities. Second, Twitter allows ordinary people to follow, or even be followed by, celebrities, to engage in what seems like a conversation, and perhaps even to experience the excitement of having a celebrity respond to or re-tweet something that they have said. Second, it is the faux relationships that continue to drive Twitter. The sense that somebody you have seen on television "knows" you, cares about what you say, or is even reading and writing her own tweets. Yes, some celebrities manage their own feeds. Others have publicists or staff members who handle that for them, yet even when they're known to use proxies other Twitter members still seem to feel the thrill of contact.

Twitter serves celebrities, in that much of celebrity is built upon a false sense of communality or camaraderie, and now you can have "proof" that a celebrity likes you and cares what you have to say. It's an automation of the historically slow process of receiving fan mail, perhaps responding to it, perhaps dropping in a head shot. It's like being a member of a celebrity fan club, but where the celebrity actually "knows you you are" and "shows up". Twitter may be the virtual equivalent of the butler at the door or, for those who tweet through proxies, the virtual equivalent of the intercom between the butler at the door and you outside the locked exterior gate. But if you can't see all of that distancing, is it really there?

What brought this to mind today? A smart person who probably should know better than to care about Paris Hilton in the first place:

Paris Hilton is tweeting up a storm about how much she loves Bali. It's her first visit. She tweeted a few hours ago, "Make a wish. 11.1l.11"

Since I've stood up for Paris on TalkLeft so many times during her various legal difficulties, I thought I'd ask her a favor. I tweeted her in reply:

@ParisHilton I wish you'd visit Aussie Schapelle Corby, doing 20 years for pot in Kerobokan Prison in bli, Pls Google her name.

"I've blogged favorably about her," meets, "She's on Twitter", and somehow that seems to become, "She may listen to me and perhaps even share my outrage at Bali's legal system". Even if we assume Paris manages her own feed, and doesn't pass that task off to a publicist or intern, what about Paris would make you think that her trip to Bali and her raving about the wonders of the country is being driven by her amazement? Would it not be a safer bet that she has been comped or compensated to promote the nation or certain of its attractions, and won't be saying anything negative? (Call me cynical, but I believe Paris's raving is a thinly disguised sales pitch from a somewhat over-the-hill celebrity spokesmodel. Bali isn't under FTC jurisdiction.)

If a celebrity "friends" you on Facebook or, if we're to that point, adds you to a Google Plus circle, you can see (or search for) your face among the tens of thousands of others. Yes, if you want to browse the members somebody claims to follow or his list of followers, your account will be every bit as difficult to find. But Twitter puts the feed, not the faces, front and center. And due to occasional celebrity retweets or responses, people do get reinforced that their tweets are being heard.

I heard a celebrity being interviewed recently (it may have been Louis C.K.) and he mentioned both that he didn't like Twitter and that people got angry at him because he didn't follow anybody. (Solution: Hire an intern?) To me, this highlights the extent to which Twitter flourishes upon the false sense of "He likes me too". Even if you never look at the feed, you'll have a happier population of followers, and probably a much larger one, if you make them think you care what they say. Twitter makes that easy.

I don't mean to diminish Twitter's value as a communication tool. There are people who like it for following news, politics, business tips, etc. I just happen to be coming to the conclusion that the thing that allows Twitter to continue is the false sense of community it creates between its high profile members and their followers and that, absent that, it would be a shadow of its present self. A mere year ago, Justin Bieber was responsible for a full 3% of Twitter's traffic. What does that tell you?