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.
Pollyanna: How do you unsubscribe to the blog? Just quit pooping in the yard like any other dog would.
A child is dead, a murderer walks and is given his gun back to kill more??????
I wanted to comment on the prosecution’s legal theory because I think it was flawed. They never should have harped on Zimmerman wanting to be a cop. Whether true or not, that Zimmerman was a cop-wanna-be does not speak to whether he was justified in shooting Martin in the moment. The prosecution needed a theory to address Zimmerman’s decision in the moment, the decision to pull the trigger. They should have simply argued that based on Zimmerman’s account of the events, he did not need to pull the trigger. Once his gun was out, all he needed to do to end the confrontation was to threaten to shoot. In other words, once Zimmerman had his gun out and trained on Martin, Zimmerman had almost total control of the situation. He could have simply told Martin to back off or be killed. But instead Zimmerman simply shot him.
I’m just making a guess here. But I believe if your were to review this judges history in criminal cases this was probably the most favorable she has been to the prosecution. Again, her ruling on the exculpatory evidence was flat ass wrong. Research her rulings on exculpatory evidence from the past, and I bet she was much tougher on the prosecution. The attorneys who present cases in front of regularly know. I’m just guessing.
OS, “Found Innocent” is one of my pet peeves. You see news people, both tv and print, use it all the time.
Sling
Sorry you are right 7+1 is fully loaded for this gun. Also, it does have safeties, they are mostly internal, that is the automatic hammer block.
Larry:
It might be with this pistol “theoretical” of having an accidental discharge but it is highly unlikely (that is a discharge from being dropped or such not be a mistaken action by the shooter)
The pistol is equipped with a hammer block which prevents the hammer from moving unless the trigger is engaged. If the hammer does not move, the pistol cannot fire because there is no movement to discharge the primer of one of the cartridges.
Also, if the chamber is carried empty it means one less round is available and this pistol doesn’t carry many (7 fully loaded) For this and the tactical disadvantage of requiring two hands to shoot the first round are the main reasons that it is not carried with an empty chamber. Also, I wouldn’t want the tradeoff of losing these two advantages for a tiny and very remote chance the gun will discharge itself accidentally.
Darren:” I haven’t read exactly what configuration Zimmerman used, but I would suspect is as I describe in this paragraph.”
He had it in 7+1 configuration.
7 round capacity in the mag.
Rack the gun to get a round in the chamber.
Remove the mag and insert a round to replace the one that went into the chamber.
The only ‘safety’ in that configuration is the 5-pound (nominal) pull required on the trigger.
I am glad to hear to Prof. Turley has serious reservations about Federal intervention into the George Zimmerman case. The Federal intervention into the Rodney King case was wrong, and the error of rewarding devastation and destruction of cities and looting should not be repeated here.
There are times that intervention is necessary, but that should occur only when the legal system has failed. In the Zimmerman case, the system worked.
There are also cases in history in which intervention is necessary because a jury has wrongly convicted a person. One of the most powerful such cases is the Leo Frank trial in 1913 that took place in Atlanta, Georgia, and in which Frank was convicted of murdering a 13-year old employee, Mary Phagen, at the pencil factory where Frank was the manager and son-in-law of one of the owners.
I won’t go into all the details here, if you are not familiar with the case, but when the evidence was looked at objectively, guilt actually pointed to Jim Conley, the factory’s janitor, and the prosecution’s star witness AGAINST Frank. (Later, William Smith, Conley’s own attorney would acknowledge that he believed that his client was guilty, not Frank.)
This was a different time, but an instructive one for us today. In the Frank case, the all-white jury chose (or was pressured) to “believe” a black janitor over a Jewish manager, even though the people of Atlanta, Georgia at that time generally considered blacks to be inferior and untrustworthy. The sad “moral” of this story: hatred for Jews trumps racism.
Appeals followed the guilty verdict, but justice was again denied. The case went all the way to the SCOTUS. But Frank lost again in a 7-2 vote. Only Oliver Wendell Holmes and Charles Evans Hughes dissented. (And they certainly don’t make SCOTUS justices like those two anymore–but that should go without saying.)
One man (other than Leo Frank himself), however, demonstrated exceptional bravery and character in this tragic case: departing Governor of Georgia, John M. Slaton. Slaton investigated and recognized the grave injustice and failure of the legal system, and intervened, commuting Frank’s sentence–one day before Frank was scheduled to be hanged.
But the tragedy did not end there. A lynch mob would take the law into their own hands anyway, and they broke into the facility where Frank was being held, kidnapped him, and then hung him from a tree. The lynch mob gave Frank one last opportunity to admit his “guilt.” But Frank was amazingly calm and dignified to the end and told his captors that he was innocent, and only asked that they give his wedding ring to his wife.
The lynch mob included “law” officers, politicians, and even “judges.” This was America nearly 100 years ago.
The case has been dramatized several times, and I’ve seen three of them–each very well done, as far as they go. One was a TV show from the 1960s as part of the “Profiles in Courage” series based on the JFK book by that name, with Walter Matthau as Slaton; another as a miniseries from the 1980s with Jack Lemmon as Slaton (who, interestingly, was a close friend of Matthau’s, and they are buried next to each other at Westwood Cemetery in LA); and the other was a musical version entitled “Parade” that I saw performed last year. There are also many books on the case, and I’ve read several of those too.
Bottom Line: The jury system is the best system we’ve got, but there are cases where intervention is needed because the system has failed. But the Zimmerman case is not one of them.
Nick: “They decided this case on the facts.”
To be pedantic —- They decided the case on what selective facts they were presented with – and with the manner of selective presentation bound to have some impact on their interpretation of those.
What they got was theatrics from both sides presenting arguments.
The arguments were often supported by facts, but the facts were presented selectively piecemeal hand-in-hand with a very selective interpretation. That’s what lawyers do. Truth is not their job.
BDLR ( an absolute buffoon ) – and to a less extreme extent, Guy – bestrode the stage like very bad Shakesperian actors.
MOM was also a stage act, but he was an illusionist, employing misdirection.
In his own previous posting that the Prof refers to he says:
If that is actually the law, and if it is actually true that one is not permitted under law to look further back than the moment the fight started, then Zimmerman walks on the basis that it can not be proven beyond reasonable doubt that he did not genuinely fear imminent death or great bodily harm to himself. We don’t know who initiated violence in the immediate. This is to define ‘starting the fight/ initiating violence’ as being the first to physically contact the other. We might be able to demonstate clearly who provoked the situation as a whole, but that is apparently entirely irrelevant. End of.
.
However, if one can look back further than the start of the fight (defined as the first physical contact by one on the other), then the situation changes completely.
The situation is like that of …….
A driver who can be shown – by the standard of “a reasonably cautious and prudent person under the same circumstances” to have been reckless. The driver kills a pedestrian.
The driver blames the pedestrian, but he can be demonstrated to be lying about the event in *significant* details.
This is the precise parallel situation with Zimmerman.
.
If “danger” is the danger of a physical confrontation, then Zimmerman was demonstrably not reasonable or prudent.
Going in blind was reckless. It fails the “reasonably cautious and prudent person” test.
Saying that he thought that Martin had kept moving is not a valid defence.
If it had some virtue then this is undone when he voices the realisation that “the kid” might be close by in the dark. From that moment on he undeniably fails the “reasonably cautious and prudent person” test.
Even finishing the NEN call in that place is demonstrably reckless if one accepts Zimmermans assertion of threatening appearance by Martin.
Where are the demonstrable lies about significant detail?
There is a gap of 2.5 minutes after the NEN. It was never put to Zimmerman to explain this gap. This is because of an error made by the cops in checking the timeline.
Zimmermans stories in any case absolutely deny the possibility of any such gap.
MOM acknowleded the gap. He suggested that Zimmerman might have been “looking around” during that thime. THis is not evidence from Zimmerman. THis is simply a “what if” suggested by MOM.
But…. MOM!…No,no,no,n,no!
Zimmerman has always expressly denied delaying to “look around” or delay for any reason whatsoever.
Any other demostrable lies about significant detail?
Yup! Compare his Hannity Interview to all that went before.
He/MOM are obviously aware of the “reckless” interpretation.
So Martin is less dangerous. Zimmerman is now “not particularly” alarmed by Martin’s actions. It was just a bit of confrontational body language. No circling. Zimmerman therefore was not reckless in going in blind. Having gone in there blind, he was attacked by Martin in “less than 30 seconds”. Again, there was absolutely no delay or “looking around”.
What we have is a driver who
Was objectively reckless. He did what no “reasonably cautious and prudent person” would do “under the same circumstances”.
A person died as a result directly leading from that recklessness.
He demonstrably lied afterwards about significant detail.
.
He had options to avoid the shooting all the way along.
He had the option to state his business when Martin passed the truck.
He had the option to stay in the safety of his vehicle as advised by NW.
He had the option to turn around on “We don’t need you to do that”.
He had the option to retutn ASAP to his truck on “Oh crap. I don’t want to give that all out. I don’t know where this kid is.”
He had the option to run away the moment that he knew for sure that Martin was near.
He had to option to explain his business on the final encounter. Even by his own story, his reaction could only serve to inflame the situation.
a) He gets all cute. “No. I don’t have a problem.”
b) His hand goes for his waistband.
“He’s got his hand in his waistband” is something worthy of reporting to the dispatcher. Yes…weapon. Although… actually circling the truck is not worthy of reporting to the dispatcher …even if the dispatcher is saying “Let me know if he does anything.”
Manslaughter. Aggravated by demonstrable blatant lying after the event.
Unless……
If the law is actually so incredibly broken that the demonstrable recklessness and incompetence leading up to the moment of the shot have to be completely ignored….as well as the demonstrable lies afterwards….. then he walks.
But that would be completely insane. It’s a licence to kill.
Tony C said: “Not all acquittals are fair, and a declaration of “not guilty” does not imply “innocent,” it only says those jurors were not convinced, and in my view they were not convinced because the prosecuting was incompetent in their presentation of case.”
***************************************
That cannot be repeated too many times. Because of the nature of burden of proof, an acquittal is not a pronouncement of innocence. It simply means the prosecution did not prove their case beyond a reasonable doubt. No jury ever comes back with a verdict of “Innocent.” The verdict is, “Not Guilty;” i.e., the prosecutor did not prove the defendant guilty beyond a reasonable doubt.
Of course, if this goes to civil court, the burden is less, and becomes preponderance of the evidence. 51% is a lot lower hurdle than 95+%.
“Turley has it wrong and so did the jury, had I been on it we would have been hung on manslaughter.” (Tony C.)
It wouldn’t have been hung, Tony, it would have been conviction … manslaughter … you and I both know why and more importantly, how. 😉
Four words to remind all that the law trumps personal opinion as to guilt:
Casey Anthony Not Guilty
And Casey Anthony looked MUCH MUCH more guilty than Zimmerman.
Get over it.
Great insight Darren. Wouldn’t keeping the pistol loaded, with a round in the chamber, increase the chances of accidental discharge, even with safeties?
Woosty asked:
“I was told that the type of gun that was used was one that had to be cocked w/2 hands prior to firing….so that would be impossible for someone who was on their back getting their head beat on the ground……that in order for the gun to be fire ready the bullet had to have been cocked into the chamber ….is this true?”
~+~
The pistol used by Zimmerman was a Kel-Tec PF9
This type of pistol is what is referred to as Double Action Only (DAO). This means the pistol to be loaded and made to fire a loaded magazine is inserted into the grip, the slide is racked back and allowed to spring forth to load the chamber with its first round. It is in this position the gun is usually carried. To cock the gun, the trigger must be pulled , which pulls back the firing mechanism and then releases it to fire a round. The same trigger pull is used for each subsequent firing.
Some people carry their pistols with an empty chamber, requiring that the slide be racked back to load the chamber. This is becoming increasingly uncommon due to modern guns having more safeties that eliminate the advantage of an empty chamber plus it does require that two hands generally be used to prepare the gun for fire and this is very disadvantageous in an emergency.
Most of the time a DAO pistol is loaded, the slide racked to put a round in the chamber and then it is holstered. I haven’t read exactly what configuration Zimmerman used, but I would suspect is as I describe in this paragraph.
Allysa: I am not a lawyer and I won’t pretend to be one by citing law. However, I have been a juror, and they did not require me to use anything but my common sense.
A common sense reading of this evidence tells me that in this fight Zimmerman provoked fear in Martin, and therefore instigated this fight. Martin’s response was initially flight, but when (from his point of view) Zimmerman pursued him, it changed from flight to fight in the form of confrontation.
As I said before, had I been on the jury, we would have hung over manslaughter before I would vote for “not guilty.” That would have been my right as a juror. I have already stated the reason I think that is reasonable; existing law prevents assault by intimidation and existing law recognizes stalking and threats as crimes. Even the SYG law recognizes that, note they do not require a physical assault before the use of force is warranted.
Not all acquittals are fair, and a declaration of “not guilty” does not imply “innocent,” it only says those jurors were not convinced, and in my view they were not convinced because the prosecuting was incompetent in their presentation of case.
Emotionalism aside, this fight clearly was instigated by one party; and while it is legal to follow somebody, it is not legal to intimidate somebody, and not legal to stalk somebody, and not legal to threaten somebody. So I will let you point at the law that defines the bright line between legal following and illegal intimidation or stalking.
But I believe, because of my laymen’s reading of those laws and the SYG law, that line is in the mind of the person being victimized and whether they feel threatened by the person following them, stalking them, or intimidating them.
Not every GZ supporter is a racist, but most, if not all racists, support GZ.
Spot on Professor, spot on.
Memories of black joy over OJ Simpson.
“It all depends on the skin…It all depends on the skin your living in…”
~Sekou Sundiata
And so it is, as it has always been, and … apparently it is the way it is going to be for some time to come.
http://www.pbs.org/moyers/journal/blog/2007/07/remembering_sekou_sundiata.html