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.
bettykath, you say: “I’m profoundly disappointed in Professor’s Turley’s take on this. I think his gz posts show more white privilege that legal analysis. I’ve enjoyed all the guest bloggers and will miss them.”
You’re leaving this blog because you don’t agree with Prof. Turley’s analysis? I don’t agree with many of his opinions, but that doesn’t stop me from reading his columns nor from reading the columns and posts of other posters, whom I also may disagree with.
What kind of World would this be if everyone agreed 100% with each other? Deadly dull and with no hope of progress or development. Are the only alternatives left to either fight or avoid one another? We need to learn to respect our differences and disagreements.
So I hope that you change you mind.
Ralph:
you have a hand held 38mm? WTF is that? Some new hand held cannon?
You been hanging out with those crazy coon a$$es at Red Jacket?
Sling, make that: “However, other gun experts have examined the facts and circumstances of the case, and I HAVEN’T seen one who would agree with you.”
Here’s a thought for today that received more than a thousand thumbs-up so far from a poster named “C”:
“On Thursday, July 11, police discovered the rotting body of 17-year-old Darryl Green, a black child from the Englewood neighborhood of Chicago. Green’s body was found behind a boarded-up house in the 6500-block of South Damen, face down on basement stairs. The body was so badly decomposed that originally, local news reports suggested that he had died of blunt force trauma. On Friday, an autopsy showed he had been shot to death. Relatives reported that Green had refused to join a gang at school.
wheres the OUTRAGE here? you wont see any because it cant be used to incite racial riots, race baiting….. black on black crime cant be used.”
Sorry, Sling, but although I don’t agree with you, I’m not going to try out your theory just to prove you wrong because I would never experiment with a gun in a way that could endanger someone. That’s just the kind of guy I am. However, other gun experts have examined the facts and circumstances of the case, and I’ve seen one who would agree with you.
Ralph: “I have fired both 9mm and 38mm guns, and have done so one-handed and my accuracy is dead-on for a relatively short-range target.”
You see the kick in that video?
Unload and safety-check that gun model or one of a close size.
Lie on the ground with the gun in your hand and get someone to straddle you, leaning in over you with their hands on your mouth and nose.
Position the gun to that it will fire flat front to back into their chest as Martin was shot. Make careful note of your arm and wrist postions. In particular note the position of the gun in relation to your face.
Get up and load the gun . 7+1
Lie down on your own and position the gun exactly as you had it with the person leaning in over you.
Pull the trigger.
Let us know what happens then.
The accuracy of a one-handed shot is not the question.
.
I’m profoundly disappointed in Professor’s Turley’s take on this. I think his gz posts show more white privilege that legal analysis. I’ve enjoyed all the guest bloggers and will miss them.
There are a few points that are misleading.
“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.”
Misleading in the sense that it was the Martin family and their attorney who found the witness while the police didn’t even look.
“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.”
The defense found the deleted and/or pw texts and pictures on their own. If they had entered this information into evidence the state could have included gz’s texts and pictures, including one that was extremely insulting to Tracy Martin, his violence against a woman when he was a bouncer and the fact that he lost his bouncer job b/c of his temper and violence, his arrest for assaulting an undercover police officer even after the officer identified himself, the protection order taken out by his ex-fiance due to domestic violence, and who knows what else. While gz’s texts were all under seal the defense plastered Travon’s all over the media, you know, that media that was so unfair to his poor client.
“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.”
gz was out to get those “a$$holes who always get away” and the “fxnking punks” after having many 8-10 meetings with the pretty young white thing who was scared of a couple of Black teens at her door, and the plasterers who actually found and reported the guys. Damn that must have hurt his ego. I read somewhere that shooting someone is, in and of itself, an act of depraved indifference. I’ll see if I can find the reference.
“Many people were highly critical of the prosecution for putting on what seemed like a case for Zimmerman.”
Agreed.
“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.'”
Rachel told two lies, both not of probative value, her age b/c she didn’t want any publicity and her reason for not attending the funeral. After 7 hours of cross examination by a very nasty West, the basic elements of her story were solid. Tayvon was followed by a “creep ass cracker”. She explained that this was slang and suggested a pervert. He also called him a “nigah”, another slang term that’s not the same as the “n” word. He ran to get away from the CAC, that’s when their call disconnected. Trayvon made no more mention of the CAC until he was suddenly in front of him. Trayvon said, “what you following me for” (gz said essentially the same but not identical). “A heavy breathing man said, ‘what you doing here’ ” (too bad the state didn’t point this out but heavy breathing suggests that gz had been running). She then heard something hit Trayvon’s phone, then the sound of grass and Trayvon saying “get off, get off”.
“….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).”
Actually, Serino didn’t say that Tracy clearly denied it was Trayvon. He left room for his misinterpretation. Neither Serino nor Tracy saw Singleton in the room and there is no report anywhere that Singleton was there. Her testimony on this point is part of the blue line – one cop lies and there’s another to back him/her up.
“third degree murder based on child abuse.”
I guess stalking and shooting a child isn’t child abuse.
“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.”
Would you make that same argument if it were YOUR child instead of Trayvon?
“The question comes down to who started the fight and whether Zimmerman was acting in self-defense.”
No eyewitness but one ear witness that you so cavalierly dismissed.
“Various witnesses said that Martin was on top of Zimmerman and said that they believed that Zimmerman was the man calling for help.”
ONE witness said this. FOUR witnesses identified gz as the person on top and at least some of them said the screams were from a child. Is this sexism on your part? That you only hear what the one male witness had to say and you were deaf to the four women witnesses, as well as Rachel J?
” Zimmerman had injuries. Not serious injuries but injuries to his head from the struggle.”
Self-serving statements from gz that they were from the struggle.
“There is also no evidence as to who threw the first punch or committed the first physical act in the struggle. ”
Again, you’re ignoring the ear witness testimony of Rachel Jeantel.
While I expected the 5 mothers to not want their children profiled, stalked and attacked as Trayvon was, I forgot about white privilege. 4 mothers were white. It is more likely that they identified with the cop wanna be who was out there protecting the neighborhood from Black teens walking home.
gz’s bigoted friend Frank Taffe, a supposed sequestered witness, was on Nancy Gracy every night. When the jury sent out the request for more information re: manslaughter, Taffe said that they were at 5-1 for acquittal. Other information indicates that it was the Black/Hispanic mother of 8 who was the holdout.
Okay, ccrider, although I wouldn’t characterize Prof. Turley’s version of the discussion of the Zimmerman trial “infotainment” by any stretch, what issues would you prefer be addressed on this forum? You have the floor, and are welcome to make suggestions.
Sling, what is your video and lengthy discussion attempting to establish? That the gun’s recoil is what caused Zimmerman’s facial injuries? If so, that’s not a plausible scenario at all. I have fired both 9mm and 38mm guns, and have done so one-handed and my accuracy is dead-on for a relatively short-range target. The recoil is there, of course, but it’s relatively small in impact, and would certainly not account for Zimmerman’s facial injuries in any event.
Staying on that gun….
Here’s a video that I use on my own mini-blog.
Kel-tec PF-9 Recoil Demonstration & Failure to Eject
http://www.youtube.com/watch?&v=98U1c5tJzqg
I was interested in the nature of the recoil action – as when Zimmerman fired, his grip would have been very considerably less secure than the two-handed arms-braced and stretched grip that you see in the video.
He would have been holding it one-handed right in front of his face – with his elbow on the ground sharply bent, and then his wrist sharply bent to get the shot directly flat through Martin’s chest.
The gun is very light – one of the lightest 9mms – only 18 ounces in fully-loaded 7+1 configuration – as Zimmerman had it.
The lighter the gun, the more it tries to behave like the bullet in the “equal and opposite reaction”.
It’s got a hell of a kick. Watch the video. It shows the considerable kick and the two guys show the effect on their hands.
Zimmerman had the worst and weakest possible grip on the gun. I had a theory that the recoil action would have driven his hand back onto his nose.
I was interested when MOM started to try to get his animation entered as *evidence*.
There was a big fuss about the technology involved. There was a volley of questions about where and when he had testified using this software in cases similar.
The guy spoke of how he works with bullet trajectories to reconstruct …yadda-yadda.
I thought “Looks like the trajectory in this guy’s model won’t be damaging to Zimmerman if MOM’s doing this.”
Ha! He wasn’t and had no intention of doing so. Which might be thought of as strange as it might scientifically confirm the actual posture that he was claiming.
There was to be no gun or use of trajectories in the animation. There were no measurements of the limbs used. Why? “That’s not what the purpose of the animation is.”
For all the guy’s experience with reconstructing crime scenes and trajectories – for all his motion-capture suits – the animation was going to be the actions of actors posing as instructed by MOM and with their movements captured digitally.
In short it was an attempt at gigantic fraud. It was argument attempting to masquerade as scientific evidence.
It would have been far easier and as valid to simply video actors acting out MOM’s arguments. But….. the problem was that a proper ‘argument’ would have been done in the same level of darkness – resulting in a black movie.
The digitised animation wilfully set out to fool the jury.
They raised the light level – giving the entirely false impressions that the eyewitnesses would have seen what is shown in the animation.
They played the 911 recording beside it – for no other purpose than to fool the jury into accepting the thing as ‘real’/more credible.
The song and dance about the guys’s experience in reconsrtucting crime scenes by incredibly complex and clever means would be intended to blind the jury with science. None of that cleverness would in fact be used.
It would be interesting to get that guy or another to use his software to reconstuct the actual positions as indicated by the trajectory and the powder. It would have to be done with accurately measured body components for both of them.
Where precisely in relation to Zimmerman’s face would that gun have had to be positioned? What then of the significant recoil action we see in the video above – when the grip would have been so weak as well as being on the end of two very weakened pivot points?
For some strange reason, the animation was not going to show such things – even though the software was designed to do exactly that.
I find it depressing that a commentator with the knowledge and skills of Prof. Turley would stoop to covering what is essentially an infotainment story.
With all of the other societal and earth threatening issues facing us, it’s really amazing that he and the commenters here would join in the ‘watch the birdie over here and not the corruption over there’ game.
Shame on the lot of you.
Nick, you’re right. The meaning of the decision “not guilty” has been described countless times by lawyers, both real and fictional ones in novels, movies, and TV, and yet many people still get it wrong, including media commentators. Many continue to erroneously think “not guilty” is equivalent to ‘innocent.”
The jury, for example, could have been 85% sure that Zimmerman were guilty–which would be far from a conclusion that Zimmerman were innocent–yet rendered a not guilty verdict, because 85% would still not have met the threshold of “beyond a reasonable doubt” required by law to render a guilty verdict.
Pharmel.
That’s because the police had no legal authority to hold the pistol and they were required to give it back to him.
Darren Smith 1, July 14, 2013 at 3:51 am
I agree with Professor Turley’s interpretations here. As far as the federal civil rights prosecution goes, I do not believe there is probable cause to support an arrest. That doesn’t unfortunately guarantee this administration would not instigate such a prosecution.
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The DOJ today said it has reactivated the federal investigation now that an acquittal took place.
They had it on hold while the state prosecution proceeded.
I woke up late today and heard that Z got acquitted. Then I just read that the Justice Dept is investigating the case for bigotry. About time. Zimmerman is half Jewish and half Hispanic. He was prosecuted for his two minority ethnic status. Those Itals in that State always go after Hispanics, particularly if they are not Cuban. Z would have to n letters on the end of his name if he was not Jewish. That is the American way. What was the vote by the jury anyway? I slept until just an hour ago and have not heard much on tv.
Marv:
please keep commenting on other issues as well.
marv:
I am not a leftist.
Personally, I see black Americans doing well everywhere I look and dont think they need my sympathy or help, they seem to be doing pretty well without it.
Your sentiments are understood though.