Many of us were still agonizing over the Trayvon Martin verdict when we became aware of another black teen who was killed by an older white male in Florida. Trayvon Martin, age 17, was shot and killed by George Zimmerman on February 26, 2012. Jordan Davis, also 17 years old, was shot and killed by Michael Dunn just 9 months later on November 23, 2012. Was Dunn emboldened by George Zimmerman or is this a part of a new and growing movement in Florida?
On July 13, 2013, a jury acquitted George Zimmerman for the murder of Trayvon. On February 15, 2014, another Florida jury consisting of eight whites, two blacks, one Asian and one Hispanic, failed to reach a unanimous verdict against defendant, Michael Dunn, for the murder of Jordan Davis.
Now the blame game begins and there is plenty of blame to go around. First we could blame the State Attorney, Angela Corey. Corey built a reputation as fierce and aggressive with her prosecution of defendants like 31-year-old Marissa Alexander, a black woman, who Corey sent to jail for 20 years for firing what Alexander says was a warning shot at her abusive husband. Corey also prosecuted 12-year-old Cristian Fernandez as an adult, making him the youngest person ever prosecuted for murder in Jacksonville’s history. Corey proudly touts that conviction rates jumped more than 90% in her first fiscal year, and that she sends more people to prison than her predecessor. Yet she failed to get convictions for murder in both the Dunn case and the Zimmerman case. Some say she failed in both cases because she was overzealous, and she overcharged to boost her career. Others say she had a secret agenda and she deliberately put forth poor, substandard prosecutions to ensure that neither of these white men would go to jail for killing a black man.
But although the media is brimming with articles expressing contempt and disrespect for Corey, these sentiments are unjustified in this case because blame for the hung jury should be placed squarely on shoulders of the attorneys for both sides who during jury selection, failed to pick apart jurors to eliminate those with biases and preconceived notions of guilt or innocence.
When potential jurors enter the courtroom, criminal attorneys quickly discover that most of them don’t want to be there and they will use a variety of reasons to be excused. Some say their religion prohibits them from judging another person. Some are concerned about their jobs and the fact that their employers will not pay while they serve on a jury. Some have child care and health concerns. Some come right out and say they are biased or have some other preconceived notions inconsistent with their duty to be impartial – maybe because they or someone they know have been a victim of crime. Most of these potential jurors are excused by the attorneys. A lawyer does not want anyone on the jury who doesn’t want to be there.
What each lawyer in a criminal case looks for right away is a juror who espouses the values and beliefs the lawyer believes will help him win, yet is strong enough to lead and convince other jurors to follow suit. Jurors are told during jury selection that if they have a pre-conceived idea about the case or about the guilt or innocence of the defendant, they are not qualified to serve as jurors. They are also cautioned to apply only the evidence they heard and saw in the courtroom to the law without prejudice or sympathy. However, many of them have hidden agendas which they cleverly hide so that they will get on the jury, and it is up to the attorneys to pose questions during jury selection (voir dire) to reveal those hidden agendas and biases.
The jury in this case found the defendant, Michael Dunn, guilty of three counts of attempted murder in the second degree, but they failed to come to a unanimous decision about the most serious charge of murder. They were deadlocked.
A hung jury doesn’t mean that the prosecution failed to convince the jurors beyond a reasonable doubt – because if that was the case, then the jury would not hang, but would instead return a unanimous verdict of “not guilty”. That clearly did not happen here. A hung jury means that there were holdouts – one, two, or more jurors who held on to their opinions and refused to budge. To quote a popular axiom in criminal cases, “it takes only one to hang.”
Let’s face it – the hung jury in this case shows that there were two factions in the jury room – neither of which would back down. One faction consisted of a notable and growing segment of the Florida population who agree with Dunn and his values. In one of his jail house letters, Dunn wrote, “This jail is full of blacks and they all act like thugs.… This may sound a bit radical, but if more people would arm themselves and kill these fucking idiots when they’re threatening you, eventually they may take the hint and change their behavior.”
But there was another faction in that jury room, another notable and growing segment of the Florida population – those still suffering from Trayvon-trauma who would not let another white man get off for killing a black teen.
A hung jury is considered a “win” for Dunn because there is no conviction, the judge declares a mistrial, and if the prosecution retries the case, his attorneys will be better prepared because they know exactly what evidence the DA has against him. But in this case, the parents of the slain teen, Jordan Davis, also won. Not only because Dunn will never again endanger the life of another black teen (he faces 60 years in jail for attempted murder), but also because unlike the Zimmerman jury, some members of this jury sought justice for Jordan and refused to back down.
Wendy Phillips worked as a criminal defense attorney for the Legal Aid Society, NYC where she tried numerous misdemeanor and felony cases.