Law and Legend: How The Zimmerman Case Was Lost By The Prosecution

zimmermantrayon-martin-picture1Below 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

180 thoughts on “Law and Legend: How The Zimmerman Case Was Lost By The Prosecution”

  1. Seems like DavidM has made a fetish out of The Gun. He obviously has no faith in the police to preserve the peace

    1. RTC wrote: “Seems like DavidM has made a fetish out of The Gun. He obviously has no faith in the police to preserve the peace.”

      The gun is not a fetish, but a tool for defending not only oneself, but one’s family. When I was single, I never owned a gun because I believe that I had the right to decide not to defend myself. My thinking was that I would rather be killed than kill someone else. Owning a gun would increase my chances of getting into a situation like George Zimmerman did. After I married and had children, I came to realize that I had a duty and obligation to defend my family from harm. I do not have any faith that the police will do it. In fact, I would say that anybody who trusts the police to keep them safe is a fool. Police almost always show up after the crime and harm has been done, to investigate and punish the ones who did it. Rarely do they ever prevent crime.

      I wish it would have been legal for Trayvon Martin to own and carry a gun. Unfortunately, our overly strict gun laws make that more difficult. In my parent’s generation, 12 year old boys carried their rifles to school for target practice during PE. Now we make schools defenseless gun free zones resulting in tragedies like the Newtown massacre. Hopefully we will wake up and get the balance right about guns.

  2. If you’re carrying a gun, you are constantly aware of it. It makes a bulge, and weighs quite a bit.
    No one who’s packing heat forgets about it, for an instant.
    Do not ask me how I know this.
    Ralph thinks I’ve never fired a gun, and I hate to shatter yet another of his illusions.

  3. David Not sure why your comment isn’t here, but in my email but you wrote “I do not think there is anything wrong with Zimmerman approaching Martin and just standing around, making his presence known. Sometimes this is a way to stop crime, by just letting the criminals know you are there and watching them. It might be dangerous to do that, but it is a legal tactic that many people have used successfully to prevent crime.”
    Your presumption evidently is that Trayvon Martin was a criminal.
    No. He was not. In this country you have to act in a criminal way before being branded a criminal. Martin did nothing criminal to arouse suspicion other then being in what Zimmerman apparently felt was the wrong place and the wrong time.

  4. B.S. DavidM,
    No sober, responsible gun owner forgets that they’re carrying a gun, particularly police and military personnel, but since you assert that it happens all the time, you’re making the case for not allowing gun owners to carry them around.

  5. “And put your hand out to me
    Cause I’m the one who’s gonna make you burn
    I’m gonna take you down
    Down down down
    So don’t you fool around
    I’m gonna pull it pull it
    Pull the trigger
    Shoot to thrill play to kill”

  6. Leejcaroll,

    WOW! Speechless! And I thought racism was a thing of the past (sarcasm).

  7. Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.
    Frederick Douglass

  8. More from Florida. It gets hard not to assume racism after a wile:

    Man arrested for having a stroke while Black, left to die on jail floor.

    Just when I thought Florida could not possibly surprise me with anything as awful as the Trayvon Martin travesty of justice; I come across this story that left me speechless. This poor man appears to have been arrested for having a stroke while being Black. I would warn you not to watch the video if you are sensitive to triggers. More below the fold…

    I also wonder at the title of the article. The use of the word “inmate” to try and minimize the awfulness of what really happened? He was a man having a stroke and he was arrested and left to die on the floor of a jail cell because the officers assumed he was just a trouble maker instead of someone having a medical emergency; Not a goddamned “inmate”. Why did the arresting officers not recognize obvious stroke symptoms? Why was he arrested instead of given medical care at the scene of the accident? And in Florida? Accidents caused by medical emergencies are not that uncommon down here with the millions of retirees driving around.

    Allen Daniel Hicks Sr., 51, was found stopped in his car on the side of Interstate 275 by a sheriff’s deputy and a Florida Highway Patrol trooper the morning of May 11, 2012. Passers-by had called 911 after they saw Hicks’ Chevy Cavalier swerving west into a guardrail, records of the incident show.
    Speaking incoherently and unable to move his left arm, Hicks was arrested on a charge of obstructing a law enforcement officer when he did not respond to commands to exit his car. Just after noon, he was booked into the Orient Road Jail.

    Hicks did not receive a medical screening, but was put in a cell where he lay facedown on the floor or tried to crawl using the one working side of his body. On the night of May 12, soaked in his own urine, his brain choked of blood, he was at last taken to Tampa General Hospital and diagnosed with an ischemic stroke. He slipped into a coma and died within three months.
    This is simply outrageous! There are two systems in this country and until such time as this is addressed we cannot move forward as a society. To continue to pretend that we are somehow a “post racial” society is non-productive and absurd. I’m sure there will be people right here on this site that will somehow try and excuse the behavior or pretend it would have happened had he been a White guy. The same people that just can’t understand why Black folks are bit angry at the treatment they receive in our “post racial” society.
    Lunsford noted that he “did not detect the odor of any alcoholic beverages” on Hicks and that he was “behaving in an erratic state … when asked for his driver’s license he picked up the lid to the center console and dropped it closed.” Hicks continued to claw at the console until Guzman reached inside it for him and retrieved his wallet.
    Lunsford and Guzman became worried when Hicks did not obey commands to show his hands and exit the car. Seeing that Hicks’ left hand was drooping into the side pocket of the driver’s door, the officers pulled their handguns.

    Hicks still acted befuddled, saying to Lunsford, “that’s a 9-millimeter semiautomatic gun that you have,” the report states. After ascertaining Hicks was unarmed, Lunsford and Guzman pulled him out of the car through the passenger door and handcuffed him.
    Florida is rapidly becoming a third world police state whose blood lust and fever for slave labor has made it dangerous to be poor or Black or female or anything other than old and White and male. I wish I had an answer but until such time as we start a conversation I don’t see one coming anytime soon. But yeah, just an “inmate” so nothing to see here, move along. Victimized first by law enforcement, medical staff and finally by the newspaper after death. What have we become? .
    Originally posted to Kristina40 on Mon Jul 15, 2013 at 11:45 AM PDT.

    Also republished by Police Accountability Group and RaceGender DiscrimiNATION.

  9. Op-Ed Columnist
    The Whole System Failed
    Published: July 15, 2013

    In a way, the not-guilty verdict in the trial of George Zimmerman for his killing of Trayvon Martin was more powerful than a guilty verdict could ever have been. It was the perfect wrenching coda to a story that illustrates just how utterly and completely our system of justice — both moral and legal — failed Martin and his family.
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    This is not to dispute the jury’s finding — one can intellectually rationalize the decision — as much as it is to howl at the moon, to yearn for a brighter reality for the politics around dark bodies, to raise a voice and say, this case is a rallying call, not a death dirge.

    The system began to fail Martin long before that night.

    The system failed him when Florida’s self-defense laws were written, allowing an aggressor to claim self-defense in the middle of an altercation — and to use deadly force in that defense — with no culpability for his role in the events that led to that point.

    The system failed him because of the disproportionate force that he and the neighborhood watchman could legally bring to the altercation — Zimmerman could legally carry a concealed firearm, while Martin, who was only 17, could not.

    The system failed him when the neighborhood watchman grafted on stereotypes the moment he saw him, ascribing motive and behavior and intent and criminal history to a boy who was just walking home.

    The system failed him when the bullet ripped though his chest, and the man who shot him said he mounted him and stretched his arms out wide, preventing him from even clutching the spot that hurt.

    The system failed him in those moments just after he was shot when he was surely aware that he was about to die, but before life’s light fully passed from his body — and no one came to comfort him or try to save him.

    The system failed him when the slapdash Sanford police did a horrible job of collecting and preserving evidence.

    The system failed him when those officers apparently didn’t even value his dead body enough to adequately canvass the complex to make sure that no one was missing a teen.

    The system failed him when he was labeled a John Doe and his lifeless body spent the night alone and unclaimed.

    The system failed him when the man who the police found standing over the body of a dead teenager, a man who admitted to shooting him and still had the weapon, was taken in for questioning and then allowed to walk out of the precinct without an arrest or even a charge, to go home after taking a life and take to his bed.

    The system failed him when it took more than 40 days and an outpouring of national outrage to get an arrest.

    The system failed him when a strangely homogenous jury — who may well have been Zimmerman’s peers but were certainly not the peers of the teenager, who was in effect being tried in absentia — was seated.

    The system failed him when the prosecution put on a case for the Martin family that many court-watchers found wanting.

    The system failed him when the discussion about bias became so reductive as to be either-or rather than about situational fluidity and the possibility of varying responses to varying levels of perceived threat.

    The system failed him when everyone in the courtroom raised racial bias in roundabout ways, but almost never directly — for example, when the defense held up a picture of a shirtless Martin and told the jurors that this was the person Zimmerman encountered the night he shot him. But in fact it was not the way Zimmerman had seen Martin. Consciously or subconsciously, the defense played on an old racial trope: asking the all-female jury — mostly white — to fear the image of the glistening black buck, as Zimmerman had.

    This case is not about an extraordinary death of an extraordinary person. Unfortunately, in America, people are lost to gun violence every day. Many of them look like Martin and have parents who presumably grieve for them. This case is about extraordinary inequality in the presumption of innocence and the application of justice: why was Martin deemed suspicious and why was his killer allowed to go home?

    Sometimes people just need a focal point. Sometimes that focal point becomes a breaking point.

    The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight. It is pervasive in policing policies — like stop-and-frisk, and in this case neighborhood watch — regardless of the collateral damage done to the majority of innocents. It’s like burning down a house to rid it of mice.

    As a parent, particularly a parent of black teenage boys, I am left with the question, “Now, what do I tell my boys?”

    We used to say not to run in public because that might be seen as suspicious, like they’d stolen something. But according to Zimmerman, Martin drew his suspicion at least in part because he was walking too slowly.

    So what do I tell my boys now? At what precise pace should a black man walk to avoid suspicion?

    And can they ever stop walking away, or running away, and simply stand their ground? Can they become righteously indignant without being fatally wounded?

    Is there anyplace safe enough, or any cargo innocent enough, for a black man in this country? Martin was where he was supposed to be — in a gated community — carrying candy and a canned drink.

    The whole system failed Martin. What prevents it from failing my children, or yours?

    I feel that I must tell my boys that, but I can’t. It’s stuck in my throat. It’s an impossibly heartbreaking conversation to have. So, I sit and watch in silence, and occasionally mouth the word, “breathe,” because I keep forgetting to.

  10. Davidm,

    In deciding whether Trayvon Martin was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing Trayvon Martin need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, Trayvon Martin must have actually believed that the danger was real.

    From Martin’s point of view:
    1) Some guy in a truck had stopped to eyeball him down at the NW corner of the community – where he had entered using the informal pedestrian route (that even Frank Taffe says is the route used by everyone)
    2) Same guy is waiting in his truck and is eyeballing him when he walks past the clubhouse
    3) Truck follows him into Twin Trees
    4) He gets of the street and onto the central footpath area where he feels he’s safe from guys in trucks
    5) He had been talking to a girl on the phone. Now that he doesn’t have to worry about trucks he can concentrate on the girl. He would rather not have this conversation at hime because little boy there has big ears.
    6) Guy appears on foot
    7) Martin freezes where he is
    8) Guy finds him
    9) Martin asks him why he is following him
    10) Guy doesn’t explain
    11) Guy’s hand goes for his waistband.

    HANNITY: Yes. You said he started from almost the beginning in that 911 call, you said he came towards you, and he seemed to reach for something in his waistband. Did you think that was a gun?
    ZIMMERMAN: I thought he was just trying to intimidate me.
    HANNITY: To make you think that there is a gun?
    ZIMMERMAN: A weapon.

    The danger facing Trayvon Martin need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, Trayvon Martin must have actually believed that the danger was real.

  11. Davidm,

    I didn’t assert that Zimmerman represented irresponsible gun ownership. I aserted incredibly forgetful gun ownership.

    The reason I raised this was what I quoted at the beginning of my comment. This was ( and this time with emphasis of the key section):
    “In Zimmerman’s case, I think he would feel a greater degree of responsibility by carrying, and if he only retrieved his weapon at the point when he believed he was about to be killed, as he claims, that illustrates responsible gun ownership.”

    Your suggestion appeared to be that Zimmernam refrained from using the gun until the last moment and therefore exhibited responsible gun ownership – and of the highest standard.
    Unfortunately for this proposal, Zimmerman says that he was only reminded of the gun when he felt Martin going for it.
    This says absolutely nothing about responsible gun ownership.

    When I carry a cell phone, I generally do not think about it.
    I do think about it the instant the need to think about it arises. This process has never failed in my experience.
    You say that you have a little pocket knife always on your keychain to open boxes or cut fruit or whatever. Quite understandably, you forget it’s there.
    However, rather like me invariably remembering my cell phone the instant a need to use one arises, you very probably remember your little pocket knife if you need to “open boxes or cut fruit or whatever”.

    I think if you carried a gun, you would very probably remember that you were carrying it should a situation arise in which a gun might be needed.

    Suppose you were observing a suspicious person who might be up to no good and who might be on drugs or something. Supposing that this person began to walk right up at you with his hand in his waistband and something in his hand. Suppose that this person began to circle you.
    You are already having a phone conversation, so you would not have to remember that you have a phone. Indeed, you probably remembered that you had a phone the moment that you decided that you needed to make a phone call.
    You might perhaps remember that you had a little pocket knife which might possibly now serve a new purpose as a weapon.
    Alternatively, you might possibly remember that you were carrying a gun.

    1. SlingTrebuchet wrote: “I think if you carried a gun, you would very probably remember that you were carrying it should a situation arise in which a gun might be needed.”

      Excellent dialogue. I am following you precisely. Putting myself in that situation, I would not think about the gun until I felt my life was in danger. Remember that the gun is strictly for defense in a life threatening situation, not for offense. For example, if I regularly carried, I would not think about the gun when I was observing a suspicious person that I thought the police should check out. I would not even think about it when someone punched me. However, when I started thinking this guy is going to kill me, this is it, that is when I would start thinking about the gun the same way I would think about the pocket knife when I need to open a box.

      Let me be clear, though, about Zimmerman’s behavior. I do not condone the way he acted. I don’t like people calling the cops on someone who is just walking in the neighborhood. I would actually have to witness a crime being committed before I called police. I suspect, however, that the police may have instructed him as a community watch organizer to call in suspicious behavior. Having said that, I do not think there is anything wrong with Zimmerman approaching Martin and just standing around, making his presence known. Sometimes this is a way to stop crime, by just letting the criminals know you are there and watching them. It might be dangerous to do that, but it is a legal tactic that many people have used successfully to prevent crime.

  12. Elaine M.
    1, July 15, 2013 at 8:58 am

    here in Florida there are scary black kids…and scary black grownups too. There are also some incredibly bright, engaging, loving black kids and families who have amazing potential for the communities that too often shut them out. A racist will see them all in the same way. Personally, I think if I were to let my inner scaredy pants get the best of me, the SCARIEST people of all are the Old White Guard….down here in the ‘sweet’ south it’s all about tatoos and scary looks in my books….biker gangs and Madras clubs (thought they resolved a long time ago)…..the big Golf gang is the scariest of all….with so many monnied connections they don’t really have to do much to get what they want never mind need….and they can be mean….they perceive they are on ‘top’ so all the world that strives to make it’s lot better is perceived as a threat….yup, they are the scariest. And I’ve had a few conversations with a number of people of all different colors, clubs and creeds and everybody is frightened…for themselves, for their kids….now I think this was a bit about race but a bit more about power, as in ‘the abuse of’. Abuse of power by so many in the societal chainmail, especially the legal quarter, that I fear for our Nation, we have already seen the backsiding and anti-progress party playing dirty. I don’t think it’s the browning of America that is the biggest ‘threat’. There are as many terrified and terrorized whites and women and young men who once did not see the world through glasses fogged with violence who now see that blind spot with glaring and undeniable frequency. Race is becoming a less clever subterfuge ….

  13. davidm2575 wrote:

    “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.”


    I don’t understand that logic. Zimmerman must have had to take a course in gun safety then…right? Yet, Trayvon Martin is dead because he wasn’t taught values by his family?Martin thought violence was the solution to his problem? What was his problem? Some wannabe cop who was following him down a dark street because he presumed that he was up to no good. I’d say it was Zimmerman who should have had better sense than to follow/stalk the young man. Zimmerman most likely felt invincible because he was packing heat. Another example of “blame the victim.”

    BTW, I’d react badly if someone like Zimmerman was following me while I walked down a street.

  14. up-thread I said: “Florida has more active hate groups per capita than any other state in the

    California has 82, Texas has 62, and Florida has 59.”
    Actually, FL is second, GA first:

    state – population / #hate groups = (pop. per hate group)

    GA – 9,919,945 / 53 = (187,169)
    FL – 19,317,568 / 59 = (327,416)
    TX – 26,059,203 / 62= (420,310)
    CA – 38,041,430 / 82 = (463,920)

  15. Ralph…..

    Now you’re funny…. If you think this site is all about politically correctness…. You’re funny….. Now, mostly respectful of others opinions….. Yes…. But you are funny……

  16. davidm2575, you write clearly, logicially, and persuasively. However, that carries little weight around here. Political correctness is the paramount virtue on this blog, so you’ll have to feed raff some of that stuff. Otherwise, he’ll just zone you out.

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