Law
2:49 pm
Sun July 14, 2013

Justice System On Trial In Court Of Public Opinion

Originally published on Sun July 14, 2013 4:54 pm

Transcript

JACKI LYDEN, HOST:

It's WEEKENDS on ALL THINGS CONSIDERED from NPR News. I'm Jacki Lyden. Coming up, how one African-American parent explained the Zimmerman ruling to his son.

But first, one of the outcomes of the trial of George Zimmerman is likely to be what the jurors were able to consider and whether a legal trial can fully satisfy divided public, even when it's the only constitutional means we have.

Legal analyst Andrew Cohen examines this question in a piece for TheAtlantic.com in which he considers the limitations of our legal system. He joins us now from Denver. Andrew Cohen, thanks for being with us.

ANDREW COHEN: It's my pleasure.

LYDEN: First of all, you write that the Zimmerman verdict exonerating him is, quote, "a blunt reminder of one of the limitations of our justice system" because, again, quoting you, "criminal trials are not searches for the truth, the whole truth and nothing but the truth." And as you say, they never have been. Could you explain what you mean, please?

COHEN: Sure. Well, what I mean is a trial is a challenge of its attested evidence. Judges throw out relevant evidence all the time. They don't allow jurors to see it. Prosecutors argue to keep certain evidence away from the jury. The defense argues to keep certain evidence away from the jury. And in this particular case, we know that there was a lot of evidence that both sides wanted to give to jurors that the judge didn't allow.

The reason why this wasn't the racially tinged trial that it could've been is precisely because the judge forbid it. So we look at trials and I think sometimes we ask too much of the judicial system. We ask too much of lawyers and judges and jurors. We're not necessarily going to get the whole answer. And clearly, we don't have the whole answer even though the legal process - at least the criminal legal process now against Zimmerman is over.

LYDEN: You say trials aren't moral surrogates. And it's almost in your view as if there are two trials going on here. One is the evidence and George Zimmerman's account of his conduct. And the other is the law itself, this Stand Your Ground law, which many people would hold excessively broad. That's an interesting parallel.

COHEN: Well, the point I was trying to make in the piece and the point that I sort of lived with for the past 15 years or so as I've covered the law is that a trial is a microcosm. It is a sliver of the truth. And you can't have a trial like this and have both sides arguing about the extent of the self-defense law, for example. The reason George Zimmerman is innocent today or free today, anyway, the reason why he wasn't convicted last night, in part, is because of the broadness of the Florida law.

If people are upset by the verdict, if they don't think it's a just verdict, the solution is to try to change the law to make the self-defense defense more narrow so that it doesn't apply in situations like this. That's - the larger point I'm trying to make is there is the court that has now been concluded, and there is the court of public opinion.

And the court of public opinion is allowed to take in all of the things that are reality, the moral, the ethical, the racial components to this story in a way that the legal system not only isn't built to do but isn't allowed to do under the Constitution. The judge's job over the course of the past few weeks has been to give George Zimmerman a fair trial, to observe the bill of rights, to observe the rules of evidence. And she did that very well.

LYDEN: Let me just ask you about that. You think that she did a very good job, and that's one of the points you make here.

COHEN: Yeah. I don't think you can fault this judge in any material way. She made some ruling against prosecutors that precluded them from bringing in evidence. She made some ruling against the defense, which they objected to very strongly. Remember, just a couple of days ago, the defense objected to the inclusion of the manslaughter option, which, of course, ended up being something that wasn't relevant.

So this is a judge who kept control over her courtroom in a very high-profile case, a case that easily could've spun out of control because of its racial component. And I think that neither side really is complaining about the judge. And when you get that in this kind of a case, it means the judge has done the job she was supposed to do.

She isn't supposed to or allowed to bridge the racial divide that we have in this country. She's not supposed to look into the larger issues about racial classifications and so forth. That's not her job, especially as a trial judge.

LYDEN: Andrew, civil rights groups have been calling for a civil trial, a wrongful death civil action against George Zimmerman. What do you think? What do you expect there?

COHEN: Well, I think we'd expect that to be quite different than the one we've just seen. The rules of evidence are a little bit more lax in a civil case. The burden of proof is different in a civil case. It's only preponderance of the evidence rather than reasonable doubt. And there's no Fifth Amendment protection against self-incriminations.

So if we were to see a lawsuit, a civil lawsuit by the Martin family, George Zimmerman would have to testify under oath. He would have to be subject to cross-examination by the Martin family attorneys. And that may be, alone, an incentive for the family to go after him, even though it's apparent that he doesn't have a whole lot of money at the end of the day.

We've seen it in the O.J. Simpson case, we've seen it in other high-profile cases where the civil case looks very much different than the criminal case does. And I would bet if we get a civil case here, that's going to be the case.

LYDEN: Andrew Cohen, thank you very much for speaking with us.

COHEN: It's my pleasure.

LYDEN: That was Andrew Cohen. You can find his piece at theatlantic.com. He's also a legal analyst for CBS News. Transcript provided by NPR, Copyright NPR.