George Zimmerman’s prosecution has dominated the headlines of late. Now that it’s over, should the prosecutors face ethics charges for bringing the case in the first place? Yes, but they won’t.

The Verdict Was Completely Unsurprising

The day the Zimmerman not guilty verdict came down, one commentator said, “this is the verdict we all expected.” She explained that she meant that legal analysts expected it – and most lawyers watching the trial must agree. There was simply no evidence whatsoever of murder; the original police investigation and prosecutors determined as such and nothing ever contradicted it.

It was not the legal community that felt wronged by the verdict; a portion of the general public caught up in the media hoopla surrounding the case thought the verdict was wrong, but I have yet to read a single legal analysis attacking the verdict. Legally speaking, it was just not surprising.

What Were Prosecutors Thinking?

Certainly every case ends with one winner and one loser. Not every case where the defense wins is a prosecution doomed from the beginning, but with no reasonable analysis of the verdict detailing why it was wrong and so much commentary on why it should never have started, one does have to ask, what were the prosecutors thinking?

It is hard to ignore that the prosecution bowed to a media-enhanced public image of the case and resulting political pressure whipped into a frenzy by attention-seeking politicians and activists who had little interest in the truth. Why this is wrong is that taking legal action based on public emotion is just not how lawyers are supposed to behave.

Certainly there were rumblings long before the verdict, but commentators really exploded after the decision, turning on the political circus and taking aim at the prosecution – should they ever have brought the charges in the first place? Wasted taxpayer funds on a case that was unwinnable? Opened the state up to potential liability for prosecuting an innocent man without just cause? My answer to these questions is no, they should not have brought charges, particularly the murder charge, and drained public coffers for a media spectacle.

Why Charges Should Be Brought

It is an abdication of a prosecutor’s duty to the public to bring unsupported criminal charges, and the abdication is aggravated  when those charges are brought based on an impermissible purpose such as public pressure. The prosecutor Angela Corey is quoted as having said at the time the murder charges was filed that she did not “bring charges in response to public demand,” but clearly she did. The trial showed that there never was any evidence in support of the charge, so the only possible basis for bringing it was bowing to public pressure.

I am not alone in the belief that the murder charge never should have been brought. The Wall Street Journal Blog has a great post about the fatal blow to the murder charge – the fact that there was never any evidence of racial animus, which under the charge brought was a key element. When the defense has a parade of witnesses supporting the defendant’s lack of racial bias, and the prosecution has no evidence of animus, it seems quite clear that the charge was never supported.

Legal Ethics Forum has a similar commentary here, adding to the discussion the ongoing prosecution narrative that its version of events was true. It is laughable to see a prosecutor so clearly defeated still espousing its unsupportable version of events in the media. This lack of respect for the jury’s verdict further aggravates the prosecution’s ethical violations, illustrating the attitude that led them to bring the unsupported charges in the first place.

Why No Charges Will Come

Though I think the prosecutors should face an ethics inquiry, I strongly doubt we will see any action taken against them. Most prosecutors just don’t see ethics investigations, and the standard for bringing charges in Florida is only probable cause. While it is hard to see any probable cause for the murder charge, with this low standard plus the intense media pressure on this case, the Florida authorities will probably give the Zimmerman prosecutors a pass. While this does not seem just, anyone finding this wrong should read the Supreme Court’s recent decision in Connick v. Thompson, 131 S.Ct. 1350 (2011), where an innocent man who spent fourteen years on death row after prosecutors withheld exculpatory evidence ultimately lost his prosecutorial misconduct case against New Orleans’ DA’s office. It is terribly wrong that George Zimmerman’s life will never be the same after this drama, but at least his verdict came out as it should.



  1. Drew says:

    Literally none of this is correct.

  2. Amanda says:

    I’m interested why the author states that George Zimmerman is an “innocent man” considering that isn’t the legal conclusion the jury came to. The jury certainly found him not guilty of the charges, but certainly did not proclaim him innocent. I think there is a difference. I think that proclaiming that Mr. Zimmerman knows black people does not, in fact, prove that he wasn’t acting in accordance with racist stereotypes when he saw the victim. I think there should be public pressure when someone is shot to require an investigation. Yes, it’s terrible that George Zimmerman’s life won’t be same, but that is because he took a foolish, fearful action. What’s worse is that the victim won’t have a life at all. Lastly, I’m troubled by the implication that lawyers don’t take action based on public emotion. Of course some of us do. We lawyers aren’t monolithic, anymore than black people or white people as a group are. Some of us are crusaders. Some of us are in it for the money. Some of us are in it because we feel stuck. Lawyers should have emotions and do what they feel is right. The nation was very much divided on this case, why wouldn’t lawyers feel the same way? Some would think that this case would be prosecutable and others not at all.

  3. KP says:

    This writer conveniently ignores the fact that the jury was also asked to consider whether Zimmerman was guilty of manslaughter. The writer would have been more balanced in her approach if she had examined whether the prosecution failed in proving the offence of manslaughter. It is also interesting how persons like this writer express their great concern for the welfare of Zimmerman without any mention or concern of the fact that another person lost his life. These same persons would then ask us to believe that race played no part in this case. Interesting.

  4. S. says:

    I would agree that the 2nd degree charges were unwinnable, but the manslaughter issue was clearly viable. Reports suggested that 5 jurors were ready to convict on manslaughter.

  5. MJ says:

    This article could easily have been titled “Hindsight is 20/20: Disbar Prosecutors who lose.”

    The jury may have reached the appropriate verdict. This does not equate to an ethics violation. It is delightful that we can sit in the blogosphere and analyze why the verdict was right after all of the evidence was presented. This does not equate to an ethics violation. And you yourself state that Florida’s burden (probably cause) is a low standard. Again, not an ethics violation.

    So what does that leave us with? A man was shot. By another man. Who claimed self-defense. By your post, it seems that claiming self-defense should preclude state action, and that any attempt at justice for the slain should result in an ethics charge. That strikes me as a poor way to run a legal system.

  6. K says:

    1. “Racial animus” was not an element of the offense. (I’m still trying to figure out what distinguishes a “key element” from any other element, considering the state has to prove every element beyond a reasonable doubt.)

    2. I’m almost positive probable cause is the standard for bringing charges in every state. It’s also the standard under Model Rule 3.8. It’s a low standard (too low in my opinion). I think the jury verdict was correct, but I cannot see a plausible argument that there was not probable cause for second degree murder. (I also don’t know what “any probable cause” means. There’s probable cause or there’s not. You can’t have “some probable cause.”)

    3. Connick v. Thompson had nothing to do with probable cause. It really didn’t even have anything to do with prosecutorial misconduct in the sense you’re talking about here. There was no question the DA’s office committed prosecutorial misconduct. The decision was based on immunity from liability for failure to properly train based on one Brady violation (again, I disagree with the holding, and even the majority’s characterization of the facts. But that doesn’t change what the case actually says).

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