April 11, 2012

Does Constitution's double jeopardy ban protect Zimmerman?

Assume for a moment that a jury finds the state of Florida's case for second degree murder unconvincing beyond a reasonable doubt, refuses to compromise to a lower charge, and frees George Zimmerman, thus setting off riots. 

Is he then free for good, under the Constitution's ban on double jeopardy?

Of course not. As seen in the two trials of the cops who whomped Rodney King, the government gets two shots at defendants whose unsatisfactory verdicts cause black riots. 

Of course, in the Rodney King trials, the first one was a state trial and the second one a federal trial. As everybody knows, when it comes to Bill of Rights protections, state governments and federal governments don't have anything to do with each other in the slightest. That's why the states can do anything they want regarding civil rights, such as having an established state church. You see, Constitutional rights only apply to the Federal government. 

Oh, wait ... that's how it was in 1790, but that got changed a long, long time ago. Well, never mind about that ...

Okay, the real reason the LAPD cops weren't protected by the 5th Amendment's prohibition on double jeopardy is that their two trials were on utterly separate charges. The first trial was on charges of whomping Rodney King and the second trial was on charges of violating Rodney King's civil rights by whomping him: totally different!

Also, you might think that the second trial was inherently likely to be biased since the jurors were under vast pressure to convict so that Los Angeles wouldn't be burned down again by drunken mobs. How can you have a fair trial with a vengeful horde standing in the wings ready to loot, rape, and pillage if they don't like the verdict?

I think, however, you'll find that you've just answered your own question.

Seriously, the most interesting thing I saw about the second Rodney King trial, in which two officers were acquitted and two convicted, was an interview with three of the jurors soon afterwards. I believe it was in the New York Times, but I've never been able to find it online. At the very end of the interview, tossed in as aside, was the stunning revelation by the three jurors that they had only voted to convict based on the last of the 60 or so blows the videotape showed landing on King. They had spent a large amount of time studying the full videotape (not the truncated part shown on TV) in slow motion and had concluded that only the very last of all the blows could be seen beyond a reasonable doubt as unnecessary to subduing the large and energetic King.

My jaw fell about six inches reading this, but as usual with most things that interest me, this fact seems to have disappeared down the memory hole without leaving a ripple in the Narrative. So, maybe I'm just imagining it all ...

My overall opinion of the Rodney King case is what I've always told my sons when giving them "The Talk:" if you make the cops chase you at 100 mph, you get their adrenaline up. And you really don't want to do that because they will likely do very bad things to you when they finally catch you because they will be so worked up they will have a hard time controlling themselves.  It's like the end of a fox hunt in England. The hounds don't carefully eat the fox after they finally catch it, they rip it to shreds because the dogs are so overwhelmed with adrenaline. 

Moreover, Rodney himself had plenty of adrenaline flowing, too, so he put up a helluva fight. (His friend in the front seat calmly stayed in the car and was untouched.)

Something I've noticed about myself is that I'm the opposite of most people in that I tend to find deciding upon the morality of specific, idiosyncratic cases unappealing. It looks like to me that the cases that most get people worked up over who is the good guy and who is the bad guy tend to be the cases that are most arguable. I look at the Rodney King story and say, wow, that's not very good, how can we more often avoid that kind of thing from now on?

Most folks' turns of mind are judgmental, retrospective, and moralistic. My turn of mind is probabilistic, future-oriented, and technocratic. So, for example, the Rodney King case seems to have been an example of the bad consequences of a 100 mph chase. But you can't let criminals escape just by driving away fast. So, the best thing to do is to discourage criminals from, in the first place, trying to get away by driving 100 mph. How? By making sure they almost always get caught. And, indeed, it appears the LAPD actually has managed to get better at tracking fugitives with helicopters, so that they are now less likely to try it. 

Here's another technocratic idea: as we know, whomping hell out of Rodney King with batons came about in part because LAPD officers weren't allowed anymore to use the windpipe-closing chokehold that they had formerly been taught to use on out-of-control arrestees. The problem was that cops would periodically choke people to death, especially black guys who had really pissed them off. Was this because cops were seized by an irrational, uncaused hatred of black guys or because black guys tend more often to do things that really piss cops off? The first answer is the only socially acceptable one.

So, the two dozen cops trying to apprehend Rodney King saw themselves as having not much alternative to bouncing truncheons off Rodney until he decided to come quietly. (Plus, they'd been chasing him at 100 mph, so whomping him just seemed like a good idea at the time.) 

To me, it seemed like there has to be some kind of technological improvement that was better than either whomping or wading in and getting a chokehold. And, indeed, we've seen police forces equipping cops with stand-off weapons such as tasers and pepper spray.

P.S. Commenter gwern found an article from the LA Times, not the NY Times as I recalled. (I was a subscriber to the NY Times in Chicago at the time, but I was vacationing at my parents' house in LA at the time of the verdict in the second trial.)
> Jurors also played and replayed the best evidence in the case--the videotape of the beating that had been taken by an amateur and enhanced by the FBI.
>
> "We went through it frame by frame, slow-motion, fast-motion, God I don't know how many times we watched that thing," Juror No. 9 said.
>
> The tape, made by a bystander, could not answer all their questions. It was blurry at one crucial moment after King was struck and fell to the ground. Some jurors said they could see Powell using his baton to bash the fallen King in the head. But others had difficulty seeing head blows, even when the tape was viewed frame by frame.
>
> All could see a powerful blow that Powell later landed across King's chest. King was on the ground at the time, on his back.
>
> "That chest blow was unreasonable and we felt it was not to effect an arrest but just to hurt the guy," No. 9 said. "That convinced about a third of us."
>
> Powell's laughter while making a radio call to request an ambulance for King also contributed to jurors' impressions that he had acted callously. But the panel stopped short of taking a vote.

So, to the extent that this is the article I remembered, it doesn't say that it was the last blow that led to the conviction, just that there was one blow that was seen by a significant fraction of the jury as unjustified beyond a reasonable doubt. But, in any case, that's awfully different from The Narrative.

38 comments:

Anonymous said...

I suspect that Zimmerman will meet with some kind of unfortunate accident in custody.

That way the special prosecutor will be able to claim she brought him to justice and African Americans will be mollified.

Only whites will be unhappy, but they will damn well take what they are given.

AMac said...

As a technocratic aside, one of the selling points of tasers to city governments and PD brass is that they reduce disability and workman's comp claims. For cops, getting up close and personal with, um, energetic folks like Mr. King is fairly low on the Healthy Lifestyle Ideas list.

Anonymous said...

Cinema is not dead. Top-notch. Bravo.

Anonymous said...

Here's what concerns me most: what jury member will return a "not guilty" verdict even if the evidence is weak after witnessing the violence, the threats, the calls for vengeance?

Jury members will always recall this and will fear for the lives of their families and themselves. All the fuss that led up to the arrest was not just to provoke the arrest but to ensure the "right" verdict.

Anonymous said...

"My turn of mind is probabilistic, future-oriented, and technocratic."

Me too! This is one of the main reasons that I like reading you.

Anonymous said...

IRC, they tried Tazering King twice and he was resisting.

Geoff Matthews said...

Well, like Chris Rock said:

"Everybody knows if the police have to come and get you, they’re bringing an @ss kicking with them."

Anonymous said...

Cinema is not dead. Top-notch. Bravo.

You're the weird guy who always posts off-topic stuff, right? Are you "Robert" or is that another guy that does the same thing?

Steve Sailer said...

Yes, it's extremely off-topic but I let it through because he's right: it's a terrific movie.

gwern said...

So, I spent half an hour going through LexisNexis and Steve, you will be glad that my Google-fu is best: I found an AP article summarizing a LA Times article interviewing all the jurors, and *that* matches what you recall almost exactly:

http://articles.latimes.com/1993-04-23/news/mn-26321_1_jurors/2

An relevant excerpt:

> Jurors also played and replayed the best evidence in the case--the videotape of the beating that had been taken by an amateur and enhanced by the FBI.
>
> "We went through it frame by frame, slow-motion, fast-motion, God I don't know how many times we watched that thing," Juror No. 9 said.
>
> The tape, made by a bystander, could not answer all their questions. It was blurry at one crucial moment after King was struck and fell to the ground. Some jurors said they could see Powell using his baton to bash the fallen King in the head. But others had difficulty seeing head blows, even when the tape was viewed frame by frame.
>
> All could see a powerful blow that Powell later landed across King's chest. King was on the ground at the time, on his back.
>
> "That chest blow was unreasonable and we felt it was not to effect an arrest but just to hurt the guy," No. 9 said. "That convinced about a third of us."
>
> Powell's laughter while making a radio call to request an ambulance for King also contributed to jurors' impressions that he had acted callously. But the panel stopped short of taking a vote.

Anonymous said...

In the Rodney King federal trial the juror watched the beating frame-by-frame - Stacey Koon and the defense said each of the 56 blows was justified. I think the problem was that RK had head wounds which were against LAPD policy and deemed excessive. Something like that anyway..

Gene Berman said...

It's my opinion there won't be found basis for a federal charge against Zimmerman. It's different than with RK, where those charged were acting as agents of the state or local government.

And, with all the various stories about the incident, I don't think there's clear, compelling evidence that a crime occurred (other than the assault on Zimmerman).

David Davenport said...

"My turn of mind is probabilistic, future-oriented, and technocratic."

Why is that turn of mind a virtue? Please explain. Tell us why being judgmental, retrospective, and moralistic is wrong.


Cinema is not dead. Top-notch. Bravo.

He's trying to pretend that the Zimmerman-Martin case is only a movie. An attempt to deny reality ... unhealthy and not clever or witty.

Anonymous said...

Zimmerman had no reason to go meddling with some kid. Then, why did Obama meddle in Libya? What did Gaddafi do to him?

Anonymous said...

It didn't do much good for Demanjuk either. When they couldn't get him for being Ivan the Terrible, they got him for something else.

This is not a nation of laws but nation of lawyers.

Thomas said...

The chokehold doesn't close off the windpipe, it closes off the carotid arteries. Just a minor technical point.

Anonymous said...

re: car chases--We talked about the Fitch barrier on that economist/foodie's site; anyone know if a version of the spike strip existed before the 90s (the proof-of-concept seems to be Donald Kilgrow's with the Utah state troopers)? In retrospect seems like a "well duh" invention.

Anonymous said...

It would seem that Zimmerman has done everything in his power to become a martyr for the White cause.

Perhaps the media is to blame of helping him along.

Eric Rasmusen said...

Very nice post. I come away thinking the second Rodney King trial result probably was correct. Jurors scared of riots don't have to look at each frame of a movie to decide. And it is correct to convict if the criminal is subdued and the policeman decides to whomp him an extra time unreasonably --- and for a unanimous jury to have to decide it was unreasonably.

I was foreman of an LA jury, in a cocaine case back in 1988 or so, and was very impressed with the earnestness of my highly diverse fellow jurors. Maybe it was because jury duty was essentially optional--- I think if you didn't respond to the letter, nothing bad happened to you.

Truth said...

Steve-O, you "forgot" to mention OJ's double jeopardy.

Anonymous said...

Yes, it's extremely off-topic but I let it through because he's right: it's a terrific movie.

Personally, I don't mind the off-topic comments. I just noted it because there seems to be this guy who always makes them here and on other HBD blogs. Similar style.

Anonymous said...

There's a spike strip patent from 1972:
uspto.gov link
-but I actually don't recall ever hearing of their use in the early 1980s. (and high-speed automotive chases were quite the staple of the late night news, not just in Hazzard County mind you)

Truth = blab first, form premise later said...

Truth-O, are you REALLY unclear on the difference between a criminal trial and a civil suit?

Anonymous said...

As we all know, the American legal system is based on that of England, and 'double jeopardy' was an ancient right enshrined in the English common law dating back to the time of the Norman kings.
It stood the test of centuries - that is until Britain's god-awful, fascist, dictatorial, nation wrecking, economy wrecking, New Labour regime took power.
The right no longer exists - a defendant can be tried by the Crown an infinite number of times on the same charge now.
Ironically this was due to the lefties of New Labour responding to another media whipped up black martyrdom, the Stephen Lawrence case.
The case gainst Lawrence's murderers is so weak and flawed that they are bound to be released on appeal in the near future to the considerable embarrassment of the British state.

Anonymous said...

Steve-O, you "forgot" to mention OJ's double jeopardy.

The plaintiff there was Fred MacGoldman, so it didn't count.

Steve Sailer said...

"Why is that turn of mind a virtue? Please explain. Tell us why being judgmental, retrospective, and moralistic is wrong."

I didn't say the way I am is a virtue. But it is the way I am. If more people were like me, you wouldn't come here to find the unusual ideas I come up with, because they'd be everywhere.

Chris said...

Have you ever come down from a real adrenaline high and laughed? I have, even the thing I did was frightening rather than fun. I think a little laughter is a normal response to something like a fight when you emerge without injury.

Somebody needs to right a book on these sorts of psychological and verbal reactions and idiosyncrasies that can get misinterpreted in legal cases. It's especially important now that every word and deed is recorded somewhere.

Paul Mendez said...

(Plus, they'd been chasing him at 100 mph, so whomping him just seemed like a good idea at the time.)

At the time the Rodney King video first made news, an acquaintance in law enforcement in a major East-Coast city told me that certain elements of the population lack the ability to connect present behaviors(crimes) with future consequences (jail 6 months from now). Therefore, they benefit from immediate negative reinforcement (beat downs)of undesirable behaviors.

Just like you wouldn't punish your dog next week for peeing on the carpet today.

Bill said...

But you can't let criminals escape just by driving away fast. So, the best thing to do is to discourage criminals from, in the first place, trying to get away by driving 100 mph. How? By making sure they almost always get caught.

Or, by whomping them?

Svigor said...

The chokehold doesn't close off the windpipe, it closes off the carotid arteries. Just a minor technical point.

It's really easy to try one and get the other. They're about two inches apart.

Of course, if you do the carotid choke properly, the subject should be unconscious in about ten seconds, IIRC.

Svigor said...

Why is that turn of mind a virtue? Please explain. Tell us why being judgmental, retrospective, and moralistic is wrong.

Typical judgmental projection: assuming he was saying it's wrong.

:) (I'm a "judger" myself: INTJ)

Svigor said...

Very nice post. I come away thinking the second Rodney King trial result probably was correct. Jurors scared of riots don't have to look at each frame of a movie to decide.

What drivel. Absolute, complete bullshit.

Agonizing over minutiae in a desperate attempt to find something to "justify" one's foregone conclusion is precisely what people with heavy consciences do.

Svigor said...

Steve-O, you "forgot" to mention OJ's double jeopardy.

Are you referring to the civil suit?

If that's double jeopardy, then we could easily see triple jeopardy for George:

1.) State criminal case
2.) Federal criminal case
3.) Civil suit brought by Mr. "child abandonment" Martin, Sr.

Kylie said...

"If more people were like me, you wouldn't come here to find the unusual ideas I come up with, because they'd be everywhere."

I think you're underestimating your personal charisma here.

Truth said...

"Anonymous said...

Zimmerman had no reason to go meddling with some kid. Then, why did Obama meddle in Libya? What did Gaddafi do to him?"

Dude, whoever you are, please place all of your computers, home, work, mobile, including your smartphone in a box, and deposit in in the nearest lake. I don't think you're worthy of the privilege of chatboard discussion. Thank you.

Londoner said...

An intelligent and interesting question. Also an irrelevant one. There are of course only two relevant questions. They are "who?" and "whom?".

NOTA said...

It's clear to me that we can cut back on the number of police beatings that happen in a bunch of ways:

a. When confronted by the police, be nonthreatening and polite even if they're assholes, which they can get away with being. Just like if you were detained by the police in Russia or Mexico, your rightness and wrongness don't come into whether you emerge from the confrontation with all your teeth.

b. For applied statistics reasons, men can be threatening a lot more easily than women, young men more easily than old men, young black men more easily than young white men, anyone dressed ghetto more easily than anyone in a suit and tie, etc. If you are a hulking bad-ass in a leather jacket with tattoos all over your body, you'll want to be completely calm and polite and friendly, without a hint of menace, because scared people with guns and clubs can be dangerous. Similarly, if you're a 55 year old Chinese lady in formal businesswear, you can probably curse the cop out without risking much more than him writing you the ticket instead of letting you off with a warning, though you'd be smarter not to.

c. Police should only be put into high-adrenaline situations when there is a good reason. For individuals, that means don't do stupid shit like high speed car chases. At a policy level, that means we need to stop usung SWAT team raids for small-time crap like poker games and drug possession or small-time dealing arrests.

d. Police who are inclined to lose it and beat the hell out of somene when sufficiently pissed off and scared need to be gotten off the police force, and into some other line of work. Dash cameras and letting the public videotape police in public, and not protecting cops who beat people up, all probably help decrease the number of cops inclined to do that stuff.

Simon in London said...

"The problem was that cops would periodically choke people to death, especially black guys who had really pissed them off. Was this because cops were seized by an irrational, uncaused hatred of black guys or because black guys tend more often to do things that really piss cops off? The first answer is the only socially acceptable one."

A lot of black men have died this way in England too. My impression is that white cops overrate black resilience/underrate black fragility, and are not keyed to black complexion indicators so often miss the signs that a black man is choking.

Anecdotally, I've often watched boxing on TV where a white man fights a black man: the white man looks battered, bruised and bloody. The black man looks unharmed to me - until he keels over. I think a similar dynamic is at work when white cops use excessive force on black men.