Day 9 Thoughts, June 20, 2013

[TalkLeft]

Here's a thread to post your thoughts and comments on Day 9 of jury selection, June 20, 2013. We also have a live updating thread, and another for the continued Frye Hearing.

[nomatter_nevermind]

I'm skeptical about all the optimistic predictions that the jury will be chosen today. I expect a lot of wrangling over the challenges. Even peremptory challenges may be disputed, by either party, on the suspicion that they are racially motivated.

[RickyJim]

I took care of business this morning so I could get back in time for the Frye hearing.  Now I learn that self defense and reasonable doubt (obviously favorite topics of mine) were discussed in detail.     Has anybody been putting the video jury proceedings online?  And by the way, has the Frye hearing been rescheduled?

[DebFrmHell]

I took care of business this morning so I could get back in time for the Frye hearing.  Now I learn that self defense and reasonable doubt (obviously favorite topics of mine) were discussed in detail.     Has anybody been putting the video jury proceedings online?  And by the way, has the Frye hearing been rescheduled?

I would check at Diwata's site.  He usually post the court proceeding w/o commentary.  Nettles has Coreshift at her site.

[nomatter_nevermind]

I believe I was wrong. It looks like we have a jury, and it's not quite 3:00 PM in Orlando.

ETA: I misunderstood. They are still wrangling. But I do think they will get done today.

ETA 2: Zimmerman has approved the jury. It's done, 3:05 EDT.

[RickyJim]

Here is a resource that seems to have the daily proceedings up pretty quickly.  I began with the first tape for today.  At 24:40 O'Mara begins the business of asking jurors if they have had any experience with legal systems that presume you are guilty until you prove yourself innocent.  (Yeah like Guantanamo.)  I don't think the information the jurors gave is accurate.  They may be confusing long detention periods, like up to a year, before trial with such an institutionalized principle.  As a matter of fact, the presumption of innocence is not explicitly in the US Constitution but it is in the Iranian Constitution!

[TalkLeft]

Ricky, reread Coffin v. United States -- a US supreme court case from 1895 tracing the presumption of innocence and the burden of proof beyond a reasonable doubt. 

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

It's fully described here. And don't veer off (yet again) into other systems.

[TalkLeft]

I  also watched the challenge/strike portions and recounted them live without commentary beginning here.

[RickyJim]

Ricky, reread Coffin v. United States -- a US supreme court case from 1895 tracing the presumption of innocence and the burden of proof beyond a reasonable doubt. 

It's fully described here. And don't veer off (yet again) into other systems.

I am very familiar with Coffin v United States, Jeralyn.  The fact is that it wasn't enshrined in US law until over a hundred years after it appeared in Déclaration des droits de l'homme et du citoyen.  I will discuss other systems only to the extent they are discussed in the daily proceedings.  I promise.

[RickyJim]

The long discussion of reasonable doubt that O'Mara lead was pure torture for me.  He said that even third year law students don't get it.  When you are told you acquit if you have a "wavering abiding conviction of guilt" and "you are not allowed to look up abiding in a dictionary" we are getting into the realm of theology more than law.  I did enjoy the moment a male pj argued that the standard of proof for civil and criminal cases should be the same.  I agree.  Why should taking billions out of one pocket and putting it into another pocket follow from a much lesser standard of proof than needed to convict a drunk driver?

The whole concept could be made more intelligible if lawyers and judges stopped using the expression "reasonable doubt".  It is much easier to understand, "You acquit if it is reasonable that the defendant didn't do what he is charged with" or "The prosecution has the burden of showing that it is unreasonable that the defendant might not have done it or in the case at hand, killed in self defense.  O'Mara's discussion then would have been all about what does it mean when something is reasonable instead of engaging in confusing word play.  It is important to get the jury thinking about possible ways the evidence could reasonably arise from an innocent scenario rather then contemplating if their abiding conviction is wavering.

[RickyJim]

I think the male potential juror who questioned why you don't have professional jury panels was the same one who brought up why the difference in standard of proof between criminal and civil cases.  It is nice that a kindred soul was heard on TV.  O'Mara lamely dodged his question.  Am I correct that he wasn't challenged but didn't make it to the final 10 because they filled the panel before they got to his place on the line?

[TalkLeft]

what was his number?

[Cylinder]

That was the one-arm pullup guy, IIRC. Young white male. I just re-watched the Channel 9 segments...let me see if I can find it.

[RickyJim]

I think this is him.  He apparently made it as second alternate juror:

Juror B-72: A single man living locally for 9 years, and a member of a fraternity, he's proud of his athletic prowess. His claim to fame is that he can do one arm pull-ups, and he told the prosecution about his history of high school sports during voir dire, saying he could "talk about it all day." A member of Phi Beta Kappa, the man said he has no prior jury experience.

[redstripe]

The long discussion of reasonable doubt that O'Mara lead was pure torture for me.  He said that even third year law students don't get it.  When you are told you acquit if you have a "wavering abiding conviction of guilt" and "you are not allowed to look up abiding in a dictionary" we are getting into the realm of theology more than law.  I did enjoy the moment a male pj argued that the standard of proof for civil and criminal cases should be the same.  I agree.  Why should taking billions out of one pocket and putting it into another pocket follow from a much lesser standard of proof than needed to convict a drunk driver?

The whole concept could be made more intelligible if lawyers and judges stopped using the expression "reasonable doubt".  It is much easier to understand, "You acquit if it is reasonable that the defendant didn't do what he is charged with" or "The prosecution has the burden of showing that it is unreasonable that the defendant might not have done it or in the case at hand, killed in self defense.  O'Mara's discussion then would have been all about what does it mean when something is reasonable instead of engaging in confusing word play.  It is important to get the jury thinking about possible ways the evidence could reasonably arise from an innocent scenario rather then contemplating if their abiding conviction is wavering.

Although the reasonability of the defendant's contentions of innocence are, as a practical matter, very important at trial, as a matter of principle the presumption of innocence is meant to focus the scrutiny of the jury on whether the prosecution's arguments are so overwhelming in their veracity and logical consistency as to not only create an abiding conviction, but an abiding conviction anchored by such a high level of certainty as to prevent any wavering.  Also, as a matter of strategy, I  think O'Mara is counting on most of the jurors having a natural hesitance to send someone to prison for many years and doesn't want to shoot himself in the foot by explicitly setting forth a higher standard of reasonability than what a number of them may already hold.