Facts are not facts until the jury says they are facts. Got it?

When I was a young person, someone who did science experiments in school and wandered through life blind and naive, I thought ‘facts’ were real things – things that could be proven time and time again. Sure, sometimes things we called ‘facts’ would be disproved (unless you are one of 25% of Americans who still believe the sun revolves around the Earth, or the some staggering percentage that thinks the earth is 6,000 years old) by other science and newer methods of finding stuff out. Facts you could count on. They just WERE.

“Is that a fact?”

“Get your facts straight.”

Oh, the joys and privilege of youth.

When I started law school, I heard of this concept “the finder of fact” and it was very hard to wrap my brain around. Facts are not, in fact, what you say they are.  They aren’t what I see with my eyes or hear with my ears. Not in a criminal jury trial anyway. There are no facts until the jury says what the facts are. In a jury trial, the jury is the ‘finder of fact.’ (In a bench trial, the judge is.) I present my facts as the criminal defense lawyer (if I feel like it, but I have no burden so nah nah nah nah nah) and the prosecution has to present their facts. Then we engage in the duel that is the trial with sparring on cross-examination, various objections to keep things out or let things in. We weave and dodge and punch and kick and at the end of it all, the jury gets to pick which things they think are true and which they don’t. And if they decide it is a fact, it becomes one. No matter what you think. Or I think. Or the prosecution thinks.

This past week, Michael Dunn was found guilty of various counts of attempted murder and there was a mistrial on the top count of the murder in the first degree of Jordan Davis. They called this case “The loud music case.” Basically, if you’ve been under a rock I can summarize it – Jordan was in his car with some friends. They were playing loud music. Dunn told him to turn it down. Jordan said no. Or said yes. Jordan either pulled what looked like a gun out and pointed it at Dunn or he didn’t. Dunn went to his car and got his gun and shot at the car. He was either afraid for his life or he wasn’t and just wanted to kill black kids.

See, there are no facts in that case on the top count. Not legal ones. In the criminal prosecution we do not know if the jury thought Jordan Davis had a gun or if Michael Dunn is a racist because the finder of fact could not come to a decision. We do know that they believed he shot at those other kids in the car and attempted to kill them. What happened before is still not sorted out.

Here’s the kicker – if the jury had decided that Florida’s stand your ground law was applicable, if they thought Dunn acted in self defense, then THAT would be the fact. It would be the truth just like saying the Earth revolves around the sun is a fact. Just like saying the earth is much, much older than 6,000 years old. And, if you said on twitter or somewhere else, that Michael Dunn shot that kid just because he wanted to and it wasn’t self defense, well, you would be wrong. It’s a belief that has no support because the finder of fact decided otherwise.

“Oh no, not guilty, that can’t be. What about all those people who are found innocent after convictions. The jury found facts and they were wrong.”   But friends, it is right – see above sun and Earth.

Juries can be wrong. They can be wrong insofar as they are human beings and human beings are fallible, they can only work with the tools and information they have and if they are given shitty tools and incomplete information then they are going to get shitty results, wrong results.


The Michael Dunn case is tough. It’s dangerous these days to talk about defending people who shoot black kids. It’s always been tough to talk about defending people accused of child sex crimes but we’ve gotten used to that, I think. I know right now, I am afraid to talk about this case for fear of being called a racist when, in fact, I am worse than that – I am a criminal defense lawyer. Race doesn’t matter. Sex doesn’t matter. I couldn’t give a rat’s ass about your religion or your life philosophy. YOU are what matter. My client. My own personal dogma gets pushed aside. And if I can’t do that, I can’t take the case.*

The truth is if my client is afraid of black people and has a reason to be afraid of black people and then kills a black person and I can show his fear is reasonable then that is what is going to happen. Racism is a bad reason to be afraid, but it’s not a legal reason not to be afraid. (That link is to a law review article entitled “Self-defense and the Mistaken Racist”) And if the jury is going to decide the fact that my client acted in self defense, then that is what it is.  That is my client’s truth. And while you can say ‘you don’t believe it’ it won’t matter.

Bernie Goetz anyone?

When folks say “George Zimmerman is a racist” that is probably true. But when they say “He didn’t shoot in self defense” that isn’t true. Those things are not mutually exclusive.

I’m sure this incenses many of you. It’s why we get the questions ‘how do you sleep at night’ and ‘how do you represent THOSE people?’ I can direct you to hundreds of posts by all kinds of lawyers who describe the hows and whys of our sleeping and representation. I don’t agree with a lot of the choices my clients make, but by the time they get to me my ability to use my efforts to judge their decisions is limited at best. In fact, it does my client no good. And my job is to do good for my client.

This is our system of justice. I rejoice when it works in my favor, which isn’t as often as I think it should be. But for as long as I can use the system I’ve got, I will. And keep trying to get the jury to pick MY facts.

* Thus far the only cases I won’t take are where the client’s family is just ugh. That’s where I draw the line.

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Posted in: Not Gulity No Way   |     |   11 Comments

11 Responses

  1. Jeff Gamso - February 17, 2014

    Haven’t yet found the category of case I won’t take. Individual cases? Yeah: Client too annoying for the amount of money I can in conscience charge or he can pay. Issues simply not interesting enough to do for the amount of money . . . ; No way on god’s green earth I can do her any good.

    But category? Maybe the Bernie Madoff’s of the world, but they’ve never come calling, so I haven’t had to decide.

    As I explained last night, though, to the serious surprise of a friend at a dinner party, I’ll represent them, but I don’t know any experienced criminal defense lawyers who actually want to represent truly innocent (as opposed to not guilty) people. We do, but we’d rather not.

  2. Mirriam - February 17, 2014

    Yes, representing truly innocent is the scariest thing in the world.

  3. shg - February 17, 2014

    Everyone I represent is innocent. Every single one. Until they’re not.

  4. Mirriam - February 17, 2014

    THAT is the truth, SHG.

  5. Travis Hunter - February 17, 2014

    Excellent post! I think for many of us, it is somewhat difficult to grasp the concept of facts in a courtroom, considering how much it differs from the way we define facts in everyday life. You’ve done a great job of explaining it for a layman like myself.

    I hope people don’t get angry with you for posting this. I imagine it was a bit risky to do so.

  6. Melissa Sawyer - February 17, 2014

    SHG! YES! You succinctly put an idea that I have been trying to get people who ask me “why I do what I do” to understand!

    Great post

  7. Jeff Gamso - February 18, 2014

    Well, yeah, what Scott said. But you know (and he knows) what I meant, too.

  8. David - February 26, 2014

    Representing the innocent is a lot scarier than representing someone guilty as sin.

  9. Allison Williams - April 10, 2014

    Excellent post Mirriam!

  10. Mithra - September 9, 2014

    Legal facts or fictions are very different from scientific facts (or fictions). Apples meet oranges. Still a good post, but the opinion of 12 random people on a jury are not the equivalent of scientific facts. If you happen to get the 25% who believe the sun revolves around the earth on a jury, it will not change the fact that the earth revolves around the sun. But that will be the legal conclusion – just like the legal conclusion that corporations are people. It might be the law – but it ain’t a fact.

  11. Mirriam - October 11, 2014

    That was the whole point of the post. But, you know that the sun revolved around the earth until we were able to prove that it doesn’t. Then the facts changed. It isn’t very different. It’s a matter of who can prove what. I suppose it makes scientists and the like feel better to think their ‘facts’ are more fact-like than others, but the fact is, they aren’t. And, for now, the fact also is that in certain instances, corporations are considered people.

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