Below is a slightly expanded version of today’s column in USA Today on the Zimmerman verdict. As I wrote before the case was sent to the jury, I saw no alternative to acquittal even on manslaughter and expected the jury to render a full acquittal. I respect the conflicting views of many on this blog on the case and how it was charged and handled. We will now have to wait to see if the Justice Department will re-try Zimmerman as a civil rights matter. I have serious reservations about such an effort, but that can be for a later discussion. For now, a few observations on the verdict can serve to as a foundation for our own discussion.
SEPARATING LAW AND LEGEND IN THE ZIMMERMAN VERDICT
The acquittal of George Zimmerman in the death of Trayvon Martin was not minutes old when an outcry was heard over racial injustice and demands for yet another prosecution by the Obama Administration. There was even a call for President Barack Obama to address the nation from the Oval Office to promise action to quell projected violence. With the verdict, the George Zimmerman case entered the realm of legal mythology – a tale told by different groups in radically different ways for different meanings. Fax machines were activated with solicitations and soundbites previously programmed for this moment. The legal standards long ago seemed to be lost to the social symbolism of the case.
Criminal cases make for perfect and often dangerous vehicles for social expression. They allow long-standing social and racial issues to be personified in villains and victims. We simplify facts and characters – discarding those facts that do not fit our narrative. We pile meanings on the outcome that soon make the actual murder secondary to the message. George Zimmerman and Trayvon Martin became proxies in a long-standing our unresolved national debate over race.
Before the case is lost forever to the artistic license of social commentary, a few legal observations should be considered, even if unpopular, before condemning this jury.
First, many of us from the first day of the indictment criticized State Attorney Angela Corey for overcharging the case as second-degree murder. While Corey publicly proclaimed that she was above public pressure, her prosecution decisions suggested otherwise. Investigators incorporated the family in key interviews. For example, one key witness was first interviewed by an attorney for Martin’s family and then talked to prosecutors in the home of Martin’s mother. The prosecutors were accused of withholding evidence from the defense until shortly before trial — a delay that the defense said denied them the ability to use text messages that portrayed Martin in a more violent image.
However, the widespread protests and anger over the shooting seemed to have its greatest impact on Corey’s decision to charge the case as murder in the second degree. This was clearly a challenging case even for manslaughter and the decision to push second-degree murder (while satisfying to many in the public) was legally and tactically unwise. The facts simply did not support a claim beyond a reasonable doubt that George Zimmerman acted with intent and a “depraved mind, hatred, malice, evil intent or ill will.” Had Corey charged manslaughter, the case might have been closer but would have still been a challenge.
Many people were highly critical of the prosecution for putting on what seemed like a case for Zimmerman. The prosecution clearly made its share of mistakes like leading its case with the testimony of Trayvon Martin’s friend, Rachel Jeantel. Jeantel was a disastrous witness who had to admit to lying previously under oath and produced conflicted testimony. She also stated that just as Zimmerman was accused of calling Martin a derogatory name, Martin called Zimmerman a “cracker.”
The prosecution consistently overplayed its hand in a desperate attempt to overcome its own witnesses, such as handling the damaging testimony from the detective that Martin’s father clearly denied that it was his son calling for help (He later changed his mind after listening to the tape 20 times). Even after being criticized by many experts for overcharging the case, the prosecution proceeded to make a demand at the end of the trial that the jury be able to convict Zimmerman on a different crime: third degree murder based on child abuse. The judge wisely rejected that demand but allowed the jury to consider manslaughter as a lesser charge.
However, in the end it was the case and not the prosecution that was demonstrably weak. The fact is that we had no better an idea of what happened that night at the end of this trial than we had at the end of that fateful night. Jurors don’t make social judgments or guesses on verdicts. While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. That is not unlawful. It was also lawful for Zimmerman to be armed. The question comes down to who started the fight and whether Zimmerman was acting in self-defense.
Various witnesses said that Martin was on top of Zimmerman and said that they believed that Zimmerman was the man calling for help. Zimmerman had injuries. Not serious injuries but injuries to his head from the struggle. Does that mean that he was clearly the victim. No. It does create added doubt on the question of the use of lethal force.
There is also no evidence as to who threw the first punch or committed the first physical act in the struggle. A juror could not simply assume Zimmerman was the aggressor. Zimmerman was largely consistent in his accounts and his account was consistent with some witnesses. After 38 prosecution witnesses, there was nothing more than a call for the jury to assume the worst facts against Zimmerman without any objective piece of evidence. That is the opposite of the standard of a presumption of innocence in a criminal trial. There was evidence to support both accounts but that evidence remained in equipoise, leaving the jury with no objective basis to reject one over the other.
Even for manslaughter, the jury had to find that George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin. but was told that “a killing that is excusable or was committed by the use of justifiable deadly force is lawful.” The jury instruction on deadly force states in part: “A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” That lesser charge still brings the jury back to the question of who started the fight and how the fight unfolded. The prosecutors never had evidence to answer that question in a reasonably definitive way. In the end, the jury had no serious alternative to acquittal. That does not mean that they liked Zimmerman or his actions. It does not even mean that they believed Zimmerman. It means that they could not convict a man based on a presumption of guilt.
Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. A legend is defined as “a traditional story sometimes popularly regarded as historical but unauthenticated.” People will make what they will of the murder trial of George Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
Ta-Nehisi Coates on the Zimmerman verdict: http://www.theatlantic.com/national/archive/2013/07/on-the-killing-of-trayvon-martin-by-george-zimmerman/277773/ …
The prosecution was incompetent. They never used the testimony by defendant that his pistol was holstered behind his right side, making it impossible for him to access it while he was on his back. Thus, he had to have drawn it while stalking the deceased before the fight. They never painted this picture for the jury. They also didn’t play up enough about the wannabe cop aspect or the classes the accused took.I feel the verdict would have been different. There’s a possibility that a civil rights case loom in the future. Perhaps better prosecution will prevail.
blah blah blah sling. Heres a tip. People are getting fed up with criminals roaming around unchecked. When they do get arrested they are out on parole or bond quickly anyways even if they have a long rap sheet.
As Dan Linehan, a blogger at Wagist.com, pointed out, correspondence with Martin on Twitter before he died alludes to an incident with a bus driver. “Yu ain’t tell me you swung on a bus driver,” Martin’s cousin wrote to him on Feb. 21.
Bruce,
1) He had (should have had) the common sense that any reasonable and prudent person would have. Plus…
2) He had been warned of the dangers by formal NW sessions
3) “We don’t need you to do that.” This advice was given to him by the dispatcher even though Zimmerman had not mentioned to him the Martin had circled the truck. In fairness this failure to mention such an extremely arming event was probably due to the event not actually haven happened.
4) “Oh crap. I don’t want to give that all out. I don’t know where this kid is.”
“This kid” – that he is explicitly aware could be only feet from him in the dark has apparently the following characteristics:
‘suspicious person who might be on drugs or something and had just circled his truck with confrontational body language, hand in his waistband and something in his hand’
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The point about the manslaughter charge (which is the only charge that should have been brought in the absence of eyewitness to the shooting) is that he did not set out to shoot Martin.
Look at it from Martin’s point of view:
1) He was entering the gated community by the route that even Frank Taffe says is the normal pedestrian route that everyone uses.
2) Some guy in a truck stops and takes an interest in him
3) He continues homewards and there’s that guy in the truck again looking at him.
4)The truck and guy have followed him into Twin Trees
5) He has to pass the truck to get home
6) As he nears the truck, the guy winds up the window
7) As he passes the truck, the guy is staring at him looking crazy.
THis is because if you listen to the NEN, Zimmerman is freaking out at that stage. He has ignored the dispatchers request to tell him what ‘the suspect’ is doing. He is urgently asking the dispatcher about “When can you get an officer over here?”
8) He heads up the footpath and turns right down the central pathwat at the T-junction. He feels safer now becaus e the truck can’t follow him and at this stage in that cerntral footpath area, he is “right by” his father’s house.
9) He slows to concentrate on the phone conversation with the girl. SHe tells him to run. He says he’s not going to run.
10) The crazy guy appears on foot.
11) The only sensible thing for Martin to do is to stop moving.
12) The guy gets closer. RIght up to him.
13) Martin asks him “What you following me for?”
14) The guy does not explain. He says something like “What you doing around here” and he goes for his waistband.
WHOA!! “Hand in his waistband”?? Even Zimmerman knows that means a weapon. Holy sh*t! This situation calls for Self Defence!
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That’s because “they always get away”. They had always been at a distance and had run away between the houses. This one walked right up to him and eyeballed him. Alternatively Martin walked past him in order to innocently make his way home. The truck was in his path. To Zimmerman, it seemed that the punk was doing something outrageous that no punk had ever, ever done before.
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People bang on about Race-ism.
There are a lot more ‘-ism’s going on around this case.
One of those is Opportun-ism – on both ‘sides’ of the question.
Another is Authoritarian-ism ….. which is where a lot of the ” ‘He’s the NW captain. Watching over his community. Concealed Carry is Righteous ” prejudice is coming from.
hey riccardo if GZ racially profiled it might be because Martin fit the profile of the overwhelming majority of criminals
The fact is that we had no better an idea of what happened that night at the end of this trial than we had at the end of that fateful night
Yes we do. A racist stalked and murdered and unarmed child.
and did i mention they are only 13% of the population? They are responsible for what? 75% of all crime?
everyone spends so much time blaming everyone and everything for the black communitys problems instead of the biggest reason of all, the black community itself.
hey swartmore, we need stand your ground everywhere. Then maybe the crime rate will go down.
oh an this
for every 1 white person who violent attacks a black person
40 blacks commit a violent crime against a white person
thats from the DOJ
There are laws against “assault by intimidation” that do not require contact. There are laws against stalking that do not require contact.
I regard being followed, at night, and hunted for by a stranger as an act of aggression or intimidation in and of itself; equivalent to “stalking” in the literal sense. I disagree with this verdict, it is clear to me who “started” the fight before a punch was ever thrown.
hey michael you are right. I dont know what Mr Turley was thinking about when he quoted a racist comment from Martin. We all know blacks cannot be racist and it takes 40 black racist slurs to even equal one single slur that a white person says.
so sick and tired of the black apologists. Yeah blacks got a raw deal for a long time. But the excuse train rolled out a few decades ago. Ive lived in mostly black areas and i can tell you for a fact ive heard way more racists slurs directed at white people than the white people make about the blacks. You dont see it because you probably live in some lily white area protected in some white community where you can imagine the social injustices that no longer really exist while ignoring how the whites are now the ones being discriminated against.
its 2013. NO MORE EXCUSES.
In weighing the opinions here, two things jump out: stand your ground was not at issue in this case and the police did not order Mr. Zimmerman not to follow Mr. Martin.
I don’t see how anyone could believe Mr. Zimmerman was legally guilty based on the evidence and Florida’s self-defense law. My our opinion is that he was factually not guilty as well.
Dogpac:
you cant have more than 2 links and the following words are not allowed:
b*tch
fuk
a$$hole
c&nt
sh*t
or variations on those themes.
B*tch seems problematic because that is being a specieist. Seeing as how in dogdom it is commonly known as a female dog or is that just humandom?
And why is b*tch a bad name? Every female dog I have ever had was a real sweetheart. Seems to me that ought to be a compliment.
What a stupid and embarrassing piece.
The dogpac wants to know where the comments are that DogBiscuitGuy (a true human) and HumpinDog tried to post. Censorship of our comments has no place on a so called ConLaw Blog. Justice? The thing speaks for itself. Did you not like the word “Punk”? Turley: answer these complaints.
Dredd: “(Why Trial By Jury?). The main reason is public protection from the corrupting influences of power on those who govern the public:”
My Off topic reaction:
Why am I thinking about the secret FISA court right now?