Below is today’s column on the Zimmerman trial, which is a close follow-up to the web column from the night of the acquittal. As expected, it appears that we have lost a few regulars upset with my opinion of the case. I am always sorry to lose people on our blog. However, this has never been an echo-chamber blog that maintains a party line or ideological view. While we remain fervently pro-free speech and civil liberties at this blog, we often disagree about the outcome of trials or the merits of cases or policies. We try to maintain a site where civil but passionate disagreements and debate can occur. As an academic and a legal commentator and columnist, I have always tried to be fair and call these cases as I see them regardless of how unpopular those views may be. At the same time, I have enjoyed reading the opposing views of others on this blog who often make fast and lethal work of my opinions. I realize that the killing of Trayvon Martin is loaded with social and racial meaning. Yet, this site is dedicated to tolerance and diversity of views in discussing the legal and policy issues of our times. I hope that those who stated that they would leave the site will return and rejoin our discussion. This is a blog that values differing opinions and free thought. This is a chorus not a solo performance and it is the variety of voices and views that makes this blog so unique.
Here is today’s print column:
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.
With the verdict, the Zimmerman case entered the realm of legal mythology — a tale told by different groups in radically different ways for different purposes. Fax machines were activated with solicitations and sound bites programmed for this moment.
Criminal cases often make for easy and dangerous vehicles for social expression. They allow longstanding 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. Zimmerman and Martin became proxies in our unresolved national debate over race.
Many have condemned this jury and some even called for the six jurors to be killed or demanded that they “kill themselves.” The fact is that this jury had little choice given the case presented by the prosecutors. This is why I predicted full acquittal before the case even went to the jury.
Before the case is lost forever to the artistic license of social commentary, it is worth considering what the jurors were given, or not given.
State attorney’s misstep
The problem began at the start. Many of us 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 interviewed a key witness at the Martin home in the presence of the family — a highly irregular practice.
The decision to push the second-degree murder charge (while satisfying many in the public) was legally and tactically unwise. The facts simply did not support a claim beyond a reasonable doubt that Zimmerman acted with intent and a “depraved mind, hatred, malice, evil intent or ill will.” Had Corey charged manslaughter, the case might have turned out differently.
The prosecutors then made that bad decision of charges worse by overplaying their evidence to overcome the testimony of their own witnesses.
For example, the prosecution inexplicably decided to lead the case with testimony of Martin’s friend Rachel Jeantel. Jeantel was a disaster, admitting to lying previously under oath and giving conflicted testimony. She also stated that just as Zimmerman was accused of calling Martin a derogatory name, Martin called Zimmerman a “cracker.”
The prosecution’s zeal for conviction seemed to blind it to the actual strengths and weakness of the case. It also led to allegations of withholding key evidence from the defense to deny its use at trial, though Judge Debra Nelson seemed to struggle to ignore the alleged misconduct.
Some questions unanswered
Ultimately, 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 judgment or guesses on verdicts.
While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. 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 Martin was on top of Zimmerman and said they believed that Zimmerman was the man calling for help. Zimmerman had injuries. Not serious injuries but injuries from the struggle. Does that mean that he was clearly the victim? No. It does create added doubt on the use of lethal force.
A juror could not simply assume Zimmerman was the aggressor. 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.
Even for manslaughter, the jury was told that Zimmerman was justified in the use of force if he feared “great bodily harm.” That brought the jury back to the question of how the fight unfolded.
The acquittal does not even mean that the jurors liked Zimmerman or his actions. It does not even mean 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 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.
July 15, 2013
Bruce E. Woych 1, July 15, 2013 at 4:07 pm
…
It started as and has become a rallying point of dissent and disillusioned intolerance…but for reasons that are not altogether coherent. There is a certain cognitive dissonance going on throughout this case from the start. This is not truly about justice for one family and the grand community of a Nation in grief, this is about vengeance and revenge and guilty conformity and elective dissent against reactionary force by “reactionary” forces… all for relief. And it is all one grand distortion that has no true center. It is all one confirmation bias that seeks to coerce an irrational sense of Unity in a country that is systemically divided…and in denial. It is about a country that is heart broken and divided, but still longs for a unification and an authentic American Freedom that has been denied us all; and the Martin Family has the direct burden in real time while the rest of us are simply acting out.
=======================
Well said.
FORT WORTH — A security guard who authorities say was being assaulted shot and killed his attacker Sunday morning at the Fort Worth Intermodal Transportation Center, police and officials said Sunday.
The identity of the man had not been released.
The guard, who works for Ruiz Protective Services, suffered multiple injuries and was taken to a local hospital. His condition was unavailable, but police said his injuries were not life-threatening.
Read more here: http://www.star-telegram.com/2013/07/14/5000461/fort-worth-guard-fatally-shoots.html#storylink=cpy
Where’s the outrage here….
bettykath, you say: “Whoopi Goldberg wondered if Zimmerman didn’t first spot Trayvon Martin because was a young black man. “I think in part,” defense attorney Mark O’Mara said.”
Did Whoppi also wonder if Martin would have pounced on top of Zimmerman and pummeled him if Zimmerman were a young black man?
http://tpmdc.talkingpointsmemo.com/2013/07/federal-zimmerman-prosecution-could-trigger-mother-of-all-conspiracy-theories.php
Bruce E. Woych 1, July 15, 2013 at 2:30 pm
…
Confirmation Bias, A Ubiquitous Phenomenon in Many Guises.
…
“Motivated Confirmation” is a subjective process of interpretation that lends itself to single minded perspectives that interpret and frame “evidence” in ways that favor an outcome. This is a more substantial category than a sampling bias, but ‘sampling bias’ can be demonstrated in the way people have pooled their data and selectively accepted the partials from witnesses (in this case) where no comprehensive single witness exists aside from the defendant.
As a teaching Professor, i would think these may be of some interest.
Regards: Bruce
==============================
Thanks Bruce.
You can be sure I will use it repeatedly.
I noted this:
(page one). I am interested in this for two reasons: one is that human “knowledge” is basically “faith” for religionists, and “trust” for secularists (The Pillars of Knowledge: Faith and Trust?).
That amounts to “who ya gonna call” –who do we trust enough to take their information into our minds and then consider it to be “our knowledge?”
The “confirmation bias” is a related dynamic.
As a general example, conservatives listen to certain folk while liberals listen to other folk.
Thus, the exercise for resisting confirmation bias is to develop a sound and robust discipline of Epistemology –which will reward us with less bias.
Our nation seems to have failed at that –but we don’t care (The Failure of Applied American Epistemology).
Thus, as the work you cited indicates, we lazily rely on our biases rather than working hard to build a less deluded reality.
“Imagine the public outcry if the Department of Justice — Eric Holder’s Department of Justice no less — were to take legal action against George Zimmerman, notwithstanding his acquittal this past weekend.
Zimmerman has perversely become a folk hero to some conservatives, many of whom also believe Holder wants to confiscate guns and is perhaps a Manchurian candidate operating DOJ on behalf of the New Black Panthers.
A federal Zimmerman prosecution would thus fuse two fringe views into one giant conspiracy theory. And it could happen.
“[W]e have an open investigation into the death of Trayvon Martin,” said a DOJ spokesperson a day after the verdict in Florida was announced. “The Department of Justice’s Criminal Section of the Civil Rights Division, the United States Attorney’s Office for the Middle District of Florida, and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial. Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction, and whether federal prosecution is appropriate in accordance with the Department’s policy governing successive federal prosecution following a state trial.”http://tpmdc.talkingpointsmemo.com/2013/07/federal-zimmerman-prosecution-could-trigger-mother-of-all-conspiracy-theories.php?ref=fpa
The situation is a trigger of sorts, but what is said and what is left unsaid is virtual mass consciousness spewing out and venting a rage. Is it possible to call this justice in any real sense? The politics are staged and postured for affect, the media is playing to the crowd; consensus is driven and hidden all at once and the baseline concerns of a country under disequilibrium is coming apart at the false seams of racial, ethnic, economic, democratic divides that are otherwise nullified as apolitical and anti-social under a spectrum of confirmation biases http://psy2.ucsd.edu/~mckenzie/nickersonConfirmationBias.pdf
The larger picture is a country that needs relief from hidden and deeply suppressed demons that are being exorcised and expressed through this appearance of an unacceptable and inexcusable tragic death…when the fact is that it is only the tip of the iceberg in this country and it is not along racial lines alone.
It started as and has become a rallying point of dissent and disillusioned intolerance…but for reasons that are not altogether coherent. There is a certain cognitive dissonance going on throughout this case from the start. This is not truly about justice for one family and the grand community of a Nation in grief, this is about vengeance and revenge and guilty conformity and elective dissent against reactionary force by “reactionary” forces… all for relief. And it is all one grand distortion that has no true center. It is all one confirmation bias that seeks to coerce an irrational sense of Unity in a country that is systemically divided…and in denial. It is about a country that is heart broken and divided, but still longs for a unification and an authentic American Freedom that has been denied us all; and the Martin Family has the direct burden in real time while the rest of us are simply acting out.
davidm2575 1, July 15, 2013 at 3:37 pm
Swarthmore mom wrote: “one man only — had a firearm. … If I were a person of color in Florida, I would pick up a brick and start walking toward that courthouse in Sanford.”
Why not instead teach young black men values about the sanctity of life, about the rights or people and how physical violence crosses the line? Why not teach them in public schools about guns and teach gun safety and help them all earn the concealed weapons permit and teach them to carry their weapons at all times to protect themselves and those they love?
*****
Why not institute AP courses on how to handle and use guns. Crikey! Yes, let’s have all our young people running around with guns and concealed weapons permits. Sure…that will solve all our problems.
I have to wonder if Zimmerman would have been so bold as to follow Trayvon Martin had he not had a gun and feared the young man might have confronted him. I think Zimmerman’s gun gave him a feeling that he could handle that “young punk”…no matter what might have happened.
Stand your ground, as opposed to back your a** out of there.
I have found through experience that I am a follower of the “Back your a** out of there” theory of survival. I also have a tendency to note environment and circumstance that exists so that I do not unwittingly end up in dark dead end alleys. (euphemistically speaking).
I suppose a John Wayne with a gun could use the reverse of this logic, and find themselves in dark dead end alleys, and be forced to go all John Wayne on someones A**.
The stand your ground law with no obligation to retreat is insane.
How about an obligation to avoid?
Zimmerman had a chance to avoid AND he was encouraged to avoid, “We don’t need you to do that sir”
Zimmerman had a chance to retreat. There are two minutes of foggy unexplained time, with Z out of his vehicle “following” (stalking? searching?)
before any confrontation occurred. …
No sir, Mr John Wayne Rambo had his gun to keep him safe,
Mr JWR had his knowledge of SYG to back up any nasty possibilities of him using his gun.
Mr JWR had the law on his side, he had his prey, he had all the cards.
The cops were on the way, any reasonable person would have avoided and retreated. Mr. Z. Rambo Happenstance, rigged the deck dealt the cards and played the hand. Z was the instigator he IMO is guilty of manslaughter.
The jury spoke, my 2 cents are on the table, a whole lot of pennies are on the table today. Thank you for the Turley Blog Professor.
Dredd,
I really don’t think race was a factor until the news media saw an opportunity to raise it…. I’m still of the opinion that this was more about stand your ground laws than race….. But then again…. I’ve been wrong before….
David,
You really believe what you wrote? I think you need more services than this blawg can offer…..
Raff,
I agree with you on both statements..
David Simon made the statement. “David Simon (born 1960) is an American author, journalist, and a writer/producer of television series. He worked for the Baltimore Sun City Desk for twelve years (1982–95) and wrote Homicide: A Year on the Killing Streets (1991) and co-wrote The Corner: A Year in the Life of an Inner-City Neighborhood (1997) with Ed Burns. The former book was the basis for the NBC series Homicide: Life on the Street (1993–99), on which Simon served as a writer and producer. Simon adapted the latter book into the HBO mini-series The Corner (2000).
He is the creator of the HBO television series The Wire (2002-2008), for which he served as executive producer, head writer, and show runner for all five seasons. He adapted the non-fiction book Generation Kill into an HBO mini-series and served as the show runner for the project. He was selected as one of the 2010 MacArthur Fellows[3] and named an Utne Reader visionary in 2011.[4] Simon also co-created the HBO series Treme with Eric Overmyer, which began its third season in 2012.”
bettykath,
maybe another case of walking while black? A relative of driving while black?
The George Zimmerman case came to “The View” in a memorable give-and-take Monday.
Whoopi Goldberg wondered if Zimmerman didn’t first spot Trayvon Martin because was a young black man.
“I think in part,” defense attorney Mark O’Mara said.
David,
Swarthmore Mom was quoting someone who made that statement. Also, if Trayvon Martin had been armed we might have two young men dead. How does that help? More guns in more hands does not prevent crime and does not prevent thugs who think they are cops from taking the law into their own hands.
rafflaw wrote: ” if Trayvon Martin had been armed we might have two young men dead. How does that help?”
Not when you factor in that the law in Florida would require Trayvon Martin to take a course in gun safety before he is allowed to carry. Further factor in that a society which supports the rights of gun ownership also teaches responsibility; it teaches how violence and credible threats of violence cross the line into irresponsible and criminal behavior. We are losing young people like Trayvon Martin because we do not teach them values and because of the destruction of the family structure from a variety of sources. Trayvon Martin evidently thought violence was the solution to his problem of being bothered by somebody following him and watching him. Somehow he did not receive the message of how he should responsibly react in that situation. He reacted badly and so the situation turned out badly.
You might consider that Martin initially probably thought Zimmerman was unarmed. If carrying a gun was easier and affordable to everyone, there would be a presumption that both people are armed. This would lead to less violence, not more, because the parties know how easily the fight could become deadly if both are armed at the time the fight commences. If Zimmerman were allowed to open carry, where his weapon was readily visible, this also might have been enough to prevent Martin from fighting him. Not too many 17 year olds are going to start a fight with a man openly carrying a gun on his hip.
rafflaw, I agree. Peaceful protests are the answer and I am glad that there weren’t the violent protests that the white supremacists that posted here last week seemed to be hoping for.
Some folks think race was a factor. imposed by culture:
(The New American Way, by Evan Handler, emphasis added). A nation that has had from 27% to 80% of its presidents owning slaves (depending on the year), a hate crime about every hour, while incessantly chanting the mantra “it isn’t about race” is really out of touch with reality (a.k.a. suffering dementia).
Good background on the jury instructions Frank.
Blouise, very interesting statistics on the ALEC stand your ground law.
Swarthmore,
While I understand the gentleman’s anger in the piece you quoted, I cannot agree with his pick up a brick suggestion. These instances are just why having the entire population armed and dangerous is a recipe for disaster.
Sling, I’m sure the prosecution looked into engaging Dr, Henry Lee, but there would have been a number of problems with using him. First Dr. Lee is not a medical doctor and his qualifications would have been called into question. Then, there’s the Phil Spector murder trial, where Superior Court Judge said that he had concluded Dr. Lee hid or accidentally destroyed a piece of evidence from the scene of actress Lana Clarkson’s shooting. And, lastly, Dr. Lee would have been associated with the OJ Simpson case, in which the jury acquited Simpson based, in part, on his testimony, and the prosecution in the Zimmerman case did not want to confuse the jury into similarly acquiting Zimmerman.
Trayvon
13 Jul
“You can stand your ground if you’re white, and you can use a gun to do it. But if you stand your ground with your fists and you’re black, you’re dead.
In the state of Florida, the season on African-Americans now runs year round. Come one, come all. And bring a handgun. The legislators are fine with this blood on their hands. The governor, too. One man accosted another and when it became a fist fight, one man — and one man only — had a firearm. The rest is racial rationalization and dishonorable commentary.
If I were a person of color in Florida, I would pick up a brick and start walking toward that courthouse in Sanford. Those that do not, those that hold the pain and betrayal inside and somehow manage to resist violence — these citizens are testament to a stoic tolerance that is more than the rest of us deserve. I confess, their patience and patriotism is well beyond my own.
Behold, the lewd, pornographic embrace of two great American pathologies: Race and guns, both of which have conspired not only to take the life of a teenager, but to make that killing entirely permissible. I can’t look an African-American parent in the eye for thinking about what they must tell their sons about what can happen to them on the streets of their country. Tonight, anyone who truly understands what justice is and what it requires of a society is ashamed to call himself an American.” David Simon
Swarthmore mom wrote: “one man only — had a firearm. … If I were a person of color in Florida, I would pick up a brick and start walking toward that courthouse in Sanford.”
Why not instead teach young black men values about the sanctity of life, about the rights or people and how physical violence crosses the line? Why not teach them in public schools about guns and teach gun safety and help them all earn the concealed weapons permit and teach them to carry their weapons at all times to protect themselves and those they love?
The other option, which we pretty much do now, is we leave them ignorant about guns, so they learn through those who are part of the criminal element and acquire guns illegally and either don’t carry or carry illegally. Don’t you see how much better it would be to arm everyone and teach responsibility and proper human rights?
seamus says,.. “Ever since the major networks merged their news and entertainment divisions their primary goal has been to sensationalize the news. This has been going on for 2 decades now and people seem to forget that the public is not viewed as a vessel to be enlightened but merely a demographic to be marketed to the media buyers at add agencies.”
Well said, and worth repeating. :o)