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A Few Thoughts on the Michael Dunn Trial



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The reactions to the Michael Dunn verdict have been mixed, but they have thus far tended toward the hysterical. Since Saturday afternoon, we have heard frequently that “Stand Your Ground” laws are once again responsible for the death of a young black man; it has been implied repeatedly that Florida’s self-defense rules are in some way a national anomaly; and we have been told, too, that the jury got this one badly wrong, finding Dunn guilty of all charges but for the illegal killing of his victim. Is this fair?

The first thing I would say is that, as far as I’m concerned, Michael Dunn was to blame from the very outset. As in the Zimmerman case, there was no good reason for the accused to have involved himself in the first instance and, in a cosmic sense at least, responsibility has to fall squarely on the shoulders of the nosy. Sure, excessively loud music is annoying. Sure, people can sometimes behave without much thought for others. But was it annoying or important enough that it was worth starting an argument, let alone a fight, let alone a killing — and of a child, no less? Absolutely not. As for the shooting itself, Dunn’s case was full of holes and his protestations of self-defense were unconvincing. There’s no question in my mind that he should have gone to prison — and for a long time. I’m glad that he will.

That notwithstanding, it seems obvious that the prosecution made its case against Dunn extremely poorly. One can simultaneously believe that Dunn should have fried for what he did, and that the first-degree murder charge — which in Florida explicitly means “premeditated murder” — was a stretch too far. Likewise, one can simultaneously think that Dunn’s story was a disaster and recognize that the state failed in its attempt to prove beyond any reasonable doubt that he was lying. Presumption of innocence matters an awful lot, and if there is any doubt it should be expected to prevail. If Florida has learned anything from the last few years, it should be this: Hire better lawyers. 

The importance of courtroom talent to one side, though, the suspicion that the jury screwed up here does deserve to be taken seriously. Now, there are two possible reasons that the state’s first-degree murder charge yielded a mistrial:

  1. One or more jurors bought Dunn’s claim that he was acting in self-defense, and the jury was thus incapable of convicting Dunn first-degree murder. (Or, for that matter, of second-degree murder or of manslaughter, both of which were provided as lesser included charges.)
  2. None of the jurors believed that Dunn was acting in self-defense, but they locked to the point of obstinacy on which charge best applied. For example: Ten jurors were happy with second-degree murder but two insisted that it was first-degree murder – and nobody would move.

Over at the Volokh Conspiracy, Dave Kopel suggests that the evidence points in this latter direction:

Because the jury convicted Dunn of three counts of attempted murder, it is certain that the jury determined that Dunn was not acting in lawful self-defense. Stand Your Ground is a rule about one detail of when self-defense is lawful.

Accordingly, the assertion that Stand Your Ground may have been a reason why the jury hung on the first degree murder charge is totally implausible. The three convictions for second-degree murder show that the jury had determined there was no self-defense; ergo, jury confusion about self-defense was not the reason why the jury deadlocked on first-degree murder.

I don’t think that this argument quite adds up. For a start, when juries take as long as this one did they tend eventually to agree on a charge — even if it is lower than some holdouts might have wanted. Second, Kopel claims that because the jury found Dunn guilty of attempted second-degree murder for the shots that were fired at Davis’s friends it couldn’t possibly have bought the self-defense claim. This is false. Why? Well, because, as Robert VerBruggen notes over at RealClearPolicy, it was possible that the jurors treated the shots that killed Jordan Davis as “self-defense shots” and the subsequent shots as something else entirely:

Dunn fired three different volleys of shots, two from inside his car and one after he got out and the teens’ car was driving away. The attempted-murder charges stemmed from the final volley of shots, the murder charge from the earlier shots that killed Davis. The jury was given the options of first-degree murder and first-degree attempted murder, as well as lesser charges for both.

As such, VerBruggen observes that

some jurors might have been okay with the initial shots on self-defense grounds. Indeed, they failed to come to a guilty verdict on any murder charge, and even opted for second-degree when it came to the attempted-murder charges (for which the case for premeditation was much stronger, because they pertained to later shots)

If it is the case that the jury was split on the question of whether Dunn’s initial shots were fired in self-defense, I’d venture that Florida’s critics do indeed have a strong complaint. Ultimately, though, their case is not against the law but the jury, which apparently hosted at least one individual who was able to believe that Dunn was legally acting to preserve his life despite his a) having arguably started the altercation himself, b) having claimed that he did so on the basis that he saw a firearm that wasn’t found and which he failed to mention to his fiancée after the incident, and c) having fled the scene well beyond the call of safety and then managed to order a pizza but not to call the police. This is a peculiar thing indeed.

The problem here, though, would be with the jury’s buying Dunn’s story per se, and not with the state’s “Stand Your Ground” provision — which, it must be declared once again, was not even at play. Stand Your Ground, remember, is not a holistic measure that confers the right to murder people on would-be vigilantes, but the principle that an individual who has not started a fight does not have the responsibility to retreat from an objectively reasonable threat if there is a safe avenue by which he might do so. Because Dunn’s fiancée remained in the store and because Dunn claimed that he was reacting to a shotgun that was three feet away, there was no such avenue of retreat available and, in consequence, no need for a Stand Your Ground claim. The case thus proceeded in Florida as it would have in a state without Stand Your Ground — Connecticut, say — and the question at hand was, “do you believe that the accused was acting in self-defense at all”; not, “do you believe that the accused had every right to ‘stand his ground.’” This is crucial.

So, what should we take away from the affair? Well, first of all it should be remembered that Dunn was not found “not guilty” on all five counts but mistried on one and found guilty on the other four. The prosecution has announced that it will take up the mistried count again, and, if it does a half-decent job of exposing the gaping holes in Dunn’s account — and, perhaps, resist the temptation to overcharge him — it may well secure a conviction the second time around.

Second, it would be nice if we could report on these issues without transmuting the words “Stand Your Ground” into “Everything I Don’t Like.” The SYG principle is not a Floridian anomaly, but the effective law of 34 states. (One of the strictest of all such law is, in fact, in California). Likewise, the principle that the state must disprove that a defendant was not acting in self-defense — rather than a defendant’s having to prove that he was – is extant in 49 of the 50 states (the outlier is Ohio).

Finally, while it can at times be intensely frustrating, I suppose that I would rather have a system in which the government too frequently failed to convict the guilty than one in which it too frequently succeeded to convict the innocent. As Reason’s Ed Krayewski noted over the weekend, “the law is based on what the state can prove not what you can make people feel.” “If the laws made it easier to throw people in jail,” Krayewski asked, “would the state fill prisons with people that look like Michael Dunn or Jordan Davis?” I think we know the answer.



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