Thoughts on the Zimmerman Trial
I did not follow the trial carefully, so I don’t feel qualified to comment on the jury verdict. There are two legal aspects of the case, though, that I can talk about.
1. I agree with Eugene Volokh’s point that Florida should reconsider its law allowing a six-person jury to hear felony cases. The Supreme Court’s decision (from 40 years ago) upholding the constitutionality of criminal juries smaller than 12 in state trials falls in the category of “wrong, but settled.” State lawmakers should still think about the fact that a larger jury will be more diverse and tend to inspire more confidence, though, of course, it increases the cost of a trial.
2. I am uneasy when a state acquittal is followed by the threat of a federal prosecution for the same act. This practice is constitutional because of the Supreme Court’s decision in Bartkus v. Illinois, which held that the Double Jeopardy Clause is not violated by consecutive state and federal prosecutions for the same act under the “dual sovereignty” doctrine. There is a powerful irony in this decision. It reflected Felix Frankfurter’s view that incorporation was mostly wrong and that the states should be able to run their criminal justice system free from federal constitutional restraints. The Supreme Court’s liberals (Brennan, Black, Douglas, and Warren) dissented. Yet Bartkus became a powerful weapon for liberals seeking to right wrongs perpetrated in the Jim Crow South by, in effect, overturning verdicts from all-white racist juries. The continuing vitality of Bartkus (as opposed to other criminal procedure decisions from the 1950s) reflects the influence of the Civil Rights Movement on constitutional law, though I wonder if this decision should be revisited.