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. @davidm2575 – Newtown CT massacre was NOT a good example of the need to arm up school faculty. I guess you never drilled down into the details. Adam Lanza was armed to the teeth with semi and automatic weapons with plenty of mags. He broke into the school at a fully locked door. He started firing at targets of opportunity as his training from other people had taught him. When he shot the kids he always made sure to fire a second shot to the head.

    In your scenario this mostly female faculty would have to be highly trained to respond in-kind instantly, firing from cover, trying not to have any collateral damage to the kids from friendly-fire, AND try to hit Adam in the head as he was FULLY covered in Kevlar! Failing that Adam get’s really pissed-off and puts his AR-15 to full and sprays the ENTIRE school.

    Some of these disasters are not normal gun-play. No one can explain how his mother, who was a gun nut too, had access to so much fire power and equipment. And after he shot his mother in the face while she slept, everyone is scratching their collective heads and saying: “Where the f*** did he get this stuff from and why so much angst?” And the whole time he was reported as having a blank look on his face almost like the gun nut in Aurora Colorado cinema (i.e. found not-guilty) and other places in USA recently.

    Seriously, arming up schools is NOT the solution. Your idea is just another problem waiting to go wrong.

  2. Owning a gun would increase my chances of getting into a situation like George Zimmerman did

    I think the major factor in Zimmerman getting into that situation was extreme stupidity.

  3. On the bright side, in the Trayvonites the Democrats finally have some people to match the Birthers blow for blow in mindless blather and faulty legal analysis. It was getting pretty grim when conservatives were the only ones saddled with highly mutated nincompoops. Whew!

    Squeeky Fromm
    Girl Repoter

  4. Blouise 1, July 16, 2013 at 3:07 pm


    Me thinks she’s beating a hasty retreat into her little cocoon.

    I was shocked to hear that 3 jurors (out of 6) said they wanted to drop kick GZ into hell (i.e. jail)! 16 hours later they got beat down by the alpha-female. They cried a bit. Poured out some of a 40-oz on the floor to their homie Trayvon (gangsta’ style), then passed their fair & balanced verdict. (/sarcasm)

    What hits me even more (which is really revealing of something I suspected) Frank Taaffe KNEW about the 1st dissenting juror’s feeling before the rest of the world! Howz’ dat’?

    Then it hit me that GZ’s gun-teacher and best buddy works for DHS as an air federal marshal (Mark Osterman). That means that Mark and Frank must have drove down to Miami to pick up some really cool divorce-style gadgets that would make Q (Desmond Llywellyn) drool… (if he were alive that is – LOL)

    Probably an Argo AA79106 illuminating from the Lake Monroe marina (their boat). The courthouse is right next to the lake. Mark probably signed one out from DHS in Orlando and was illegally using it on the jurors and Angela Corey too. People need to know who they are dealing with in the Judge Zimmerman cabal.

    You can bet Judge Z is pulling MAJOR favors from his old buddies in DoJ trying to derail the federal case. Why is O’meara so confident that Ibison has nothing on his client for a year now? What’s his source? How does he know?

  5. sonofthunderboanerges,

    Me thinks she’s beating a hasty retreat into her little cocoon.

  6. Elaine,

    Regarding her book deal … no surprise there. I suspect that like Zimmerman, she thought she was going to be a hero and then … wham … reality smacked her in the face.

  7. KINESICS 101 (i.e. Body Language)
    @Blouise – Juror #B37 said all that while clutching her purse with a death-grip and crossing her legs because the sound man holding the boom mike over her head was a young African-American (aka Black) man. When he had to leave due to a emergency phone call (and replaced by a Caucasian – aka White – sound woman) she put her purse on the floor and uncrossed her legs and arms.

    I know I know! I’m F.O.S.! Mostly true but “what-if” huh?

  8. @Jon L – Didn’t look too hard dadja’?

    2012 Florida Statutes / Title XLVI / CRIMES / Chapter 784 / 784.048 “Stalking”

    “stalking” Verb
    1. Pursue or approach stealthily: “a cat stalking a bird”.
    2. Harass or persecute (someone) with unwanted and obsessive attention: “the fan stalked the actor”.

    In what world are “citizens” allowed to follow (aka stalk) people for questionable reasons? – Sheldon Cooper Big Bang Theory

  9. There has been much discussion regarding the stand-your-ground laws, but I have not found anything about laws dealing with following a person. Are there such laws – particularly in Florida?

  10. United States of Zimmerman

    By William Boardman,

    16 July 13

    A jury verdict is not the same as moral judgment

    The most important thing about the Zimmerman verdict is that it’s a clear demonstration of how the American legal system is only about law. It is not about justice. It is not even about the consequences of killing another person.

    The verdict demonstrates that, despite the protestations of the law that it is about justice, that’s only a pretense to cover the reality: that when the law produces justice, it’s a fluke, an accident, a surprise. The law is only about the law.

    And it’s no wonder, when you stop to think about who makes laws and why. Justice is one of the last things on the legislative mind, if it ever gets there at all.

    And so the Zimmerman verdict can be seen as a metaphor for the American way of life and death these days, a psychic rorschach blot of our culture, a measure of the zeitgeist in the United States of Zimmerman, the US of Z.

    In the distorting mirror of the Zimmerman verdict we glimpse all too much of who we are today as a nation – not what each of us is, nor what all of us are, but an inescapable collage of how exceptional we are in so many ways of which we should be ashamed. Here’s a sampling of those reflections.

    A Rough Guide to Life in the United States of Zimmerman: the US of Z

    In the US of Z the law allows people to hunt each other.

    In the US of Z you can be a self-appointed volunteer vigilante, and you have permission to decide a person is up to no good based solely on the color of his skin, and maybe the time of day and your own bigotry.

    In the US of Z you may racial profile to your heart’s content and the judge won’t let it be used against you in court.

    In the US of Z, you don’t have to feel remorse if you kill someone, even if that person did nothing wrong, even if you went out of your way to get to kill him. You can just believe it was God’s plan.

    In the US of Z, there is confusion about whether Trayvon Martin is another Medgar Evers or Emmett Till. He might have grown up to be a Medgar Evers. He died an Emmett Till.

    In the US of Z, the acquittal of someone who stalked and killed a young black man comes as no surprise. But it’s still surprising that Zimmerman’s defense attorney asserted, in all apparent seriousness, that in the same circumstances, Zimmerman would not even have been charged if he was black.

    In the US of Z, it is no surprise for a black man to go uncharged when he does not survive his arrest. That’s not what the defense attorney meant, because in the US of Z, it’s the killer Zimmerman who is somehow the victim.

    In this US of Z, there are white people who believe that black people don’t care about dead black boys except when whites kill them.

    Is It Ever Fair to Arrest a Judge’s Son?

    In this US of Z, people still think it’s unfair that Zimmerman was even arrested 44 days after the killing. They don’t believe that George Zimmerman’s father, Robert Zimmerman, a retired Virginia Supreme Court magistrate, reportedly talked the police out of arresting George the night he killed Trayvon.

    In the US of Z, the Zimmerman verdict no doubt gives some hope to Michael David Dunn, 45, a Florida white man who killed an unarmed black teenager in the back seat of a car for having the music too loud, shooting him at least eight times. Dunn has pleaded not guilty, saying he felt threatened and acted in self defense, and besides the law gives him the right to stand his ground.

    In the US of Z, having rap music too loud for the guy who drives up beside you in the parking lot is an even worse offense than walking home in the rain with Skittles and iced tea while black.

    In the US of Z, WWB – Walking While Black – is risky behavior that sensible people avoid. So is SITBSWB – Sitting in the Back Seat While Black.

    “Healing Dialogue” for the Zimmermans Starts with “Blacks Are Bad”

    In the US of Z, your older brother can go on TV (CNN) and trash talk your victim and pretend he’s starting a healing dialogue and the news people will just nod.

    In the US of Z your brother’s behavior doesn’t seem so odd because your father, the retired Virginia magistrate decided to publish an e-book right before your trial started, with the title: “Florida v. Zimmerman – Uncovering the Malicious Prosecution of My Son George.”

    In the US of Z, Judge Zimmerman makes clear, among other things, that in his view the “True Racists” in the US of Z are all African-American. And the judge names names, including: the Congressional Black Caucus, the NAACP, the Black Chamber of Commerce, the United Negro College Fund, and Trayvon Martin’s undertaker.

    In the US of Z, someone puts up a “Kill Zimmerman” page on Facebook that gets more than 7,000 “likes” in just a few hours, gets reported by an unknown number of people, and doesn’t get taken down right away.

    In the US of Z, perhaps counterintuitively till you think about it, the Zimmerman verdict, like the O.J. verdict, went to the money side.

    In the US of Z there is little appreciation of the dark irony that the Zimmerman verdict was delivered in Seminole County.

  11. Blouise,

    More from juror B37:

    Juror B37 says George Zimmerman feared for his life in his fatal encounter with Trayvon Martin
    Juror B37, one of the six jurors who acquitted George Zimmerman in the Trayvon Martin case, told CNN’s Anderson Cooper that she thinks Zimmerman meant well.
    By Stephen Rex Brown AND Daniel Beekman / NEW YORK DAILY NEWS

    But Juror B37 said in the CNN interview that she thinks Zimmerman would have “reacted the exact same way” had Trayvon been “Spanish, white, Asian.”

    But she made at least one statement on “Anderson Cooper 360” that could have been construed as racist.

    The host asked her about testimony that Trayvon used the phrase “creepy-ass cracker” to describe Zimmerman, 29, after the older man started to follow him.

    “I don’t think it’s really racial. I think it’s just the everyday life, the type of life that they live, and how they’re living, in the environment that they’re living in,” she told Cooper, using “they” to refer to black people, specifically Trayvon and a female friend of his who testified during the Zimmerman trial about being on the phone with him just before the fight.

  12. Blouise,

    I shouldn’t probably say this but serious hunters have a strict code when shooting….. And probably wouldn’t taste good between Krispy Kreme’s…..

  13. AY,

    I could suggest she get Paula Deen to write a forward for the book but since there was no tap dancing … 😉

  14. You’re probably right Blouise…. Provided 1) they have lots of pictures for those that still can’t read…. 2) in comic book form… With the little ballon captions…. And 3) no more than 5 pages total…..

  15. Juror No. B37, who insisted that race played no role whatsoever in the verdict. and the invisible Trayvon Martin who served a purpose in teaching poor George a lesson … chilling.

    I predict her book will be a best seller with the Stand Your White Ground crowd.

  16. More Evidence That It Never Was About Race
    By Charles P. Pierce

    I am taking heat in some quarters because of what people think was my less-than-nuanced view of the verdict handed down in the case of George Zimmerman, Crimebuster.

    (It should be noted that what I wrote was what the verdict had made possible, not what I thought was likely to happen, which was apparently too nuanced an un-nuanced view for some people to grasp. It also should be noted that one of the first things that actually happened was that the court gave back to Zimmerman the gun with which he’d shot Trayvon Martin for the crime of being in a neighborhood where, in the highly nuanced judgment of George Zimmerman, Crimebuster, Martin did not belong. I think we can all agree that Zimmerman at least needs further firearms training before we arm him again, no?)

    (As to your opening sentence, Mr. BooMan, please to be pissing off now. I wish I never had had to write a word about this case. I haven’t “enjoyed” a single moment of it. I wish George Zimmerman weren’t a trigger-happy yahoo. I wish this country weren’t insane about its firearms, and Florida not insane about arming every peckerwood wannabe in the state. I said from the start that nothing good would come of this case, and nothing has.)

    I am peculiarly accused of not understanding the full range of explanations as to how and why Trayvon Martin came to be dead, and how and why George Zimmerman, Crimebuster, came to make him that way. I am peculiarly accused of not understanding what the white people of Sanford think about the rash of burglaries in their town and how that made it inevitable that George Zimmerman, Crimebuster, was on the street that night, packing, looking for a f*cking punk to roust. I am peculiarly accused of being ignorant about black-on-black crime, and gun violence in our cities, as though that’s has anything to do with the events of February last. There was black-on-black crime in the 1950’s, when Emmett Till was murdered, and in the 1960’s, when Goodman, Schwerner, and Chaney were killed. There was black-on-black crime throughout the early years of the century — We got some really good blues songs out of it, you may have noticed — when black men were hanged, mutilated, and burned for sport. More than a few of these racist atrocities occurred because of a general belief in society that black people were prone to violence, and, often, the proof that was cited was the black-on-black crime levels of the particular time in history. What exactly is the point here?

    OK, let’s consult the expert opinion of one local citizen down Sanford way, so that I may be enlightened about the feelings of The Other Side. Take it away, Juror No. B37.

    “I think George Zimmerman is a man whose heart was in the right place, but just got displaced by the vandalism in the neighborhoods and wanting to catch these people so badly that he went above and beyond what he really should have done. But I think his heart was in the right place. It just went terribly wrong…”

    Such a shame when things go so terribly wrong that good-hearted people shoot down unarmed teenagers in the street. Whatever is the world coming to, anyway?

    When Cooper asked the juror if she would feel comfortable with Zimmerman being a neighborhood watch volunteer in her community, she said, “if he didn’t go too far.” She added, “I would feel comfortable having George (as a neighborhood watchman)…I think he’s learned a good lesson.”

    See, that’s why George Zimmerman made Trayvon Martin dead. He needed a “good lesson” in how to be a better Neighborhood Watchman and crimebuster. Trayvon Martin died as an object lesson because that is the proper function of a young black man in our society. And this, mind you, was a juror in the case of how Martin came to be dead. I understand this person very, very well, and I feel very comfortable in telling her to take her barely implicit racism and fk off.

  17. No need to fix the legal system. It’s already fixed.

    When a “law” is written by politicians owned by corporate interests such as the NRA and ALEC, its consequences, such as this kabuki theater trial in Florida, are predictable. Add in a corporate-owned, unaccountable-above-the-law SCOTUS majority in Citizens United and its legalizing of voter suppression and you have more evidence of the fix being in place.

    The Zimmerman legal team knew it had an easy win in its pocket when it took over the defense. A six person all white, all female jury; an inept by design or default prosecution; a law requiring a jury charge filled with Animal Farm legalese which makes the murder victim carry the burden of proof.

    The rule of law is fine as long as you’re one of the ruling class. In today’s corrupt-at-all-levels political system, academic discussions and legal theory are merely games that reflect a decaying plutocracy.

  18. Davidm,

    “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 ”

    What’s this “if” (you carried regularly) ?

    On Hannity: ZIMMERMAN: I carried it at all times except for when I went to work.

    He carried in a holster inside his waistband and behind his hip.
    It’s a small gun. 0.8″ thick and 5″ long overall. 18 ounces. It is said to be the smallest and lightest 9mm semi on the market. To an observer, it doesn’t make a significant bulge.
    This is why Martin could not have seen the gun there – even in daylight, and it was really, really dark.
    The small size and position behind the hip means that Martin could not have felt it.
    Short of Zimmerman actually drawing the gun or having it drawn to begin with, Martin can’t know about the gun.
    However….. I’ll spare you another repaste of Hannity and Zimmerman agreeing that hand going to waistband in such situations means a gun….. and then Zimmerman saying that after he put his hand to his waistband, then Martin punched him.

    Every day, Zimmerman gets up dresses.
    He picks up the holstered gun and tucks it under his waistband.
    Any time he takes a dump, he had to remove the gun and put it somewhere. He then can drop his trousers.
    Having done what he has to to, he does up his trousers again. He picks up the gun from wherever and tucks in under his waistband.
    I do not have any information on the frequency of his bowel movements.

    Speaking of movements, that gun has to pressed firmly against his hip bone. Otherwise his trousers will be falling down. Stand, sit, bend, etc.

    When he goes to work, he remembers that he is carrying a gun and removes it.
    When he gets out of work, he remembers that he is not carrying a gun and replaces it.

    When he undresses for bed, he removes the gun and places it somewhere….. where next morning he will repeat this whole gun-conciousness thing.

    During his days, he may well hear about, read about or watch news reports on TV that mention shootings. He has an interst in law enforvement issues. He might occasionally think about guns.

    “I would not even think about it when someone punched ”
    I am not asserting that you do not actually believe this.
    I accept your word that you have given the matter consideration and that you do believe this.

    O.H.S.W.E.E.T.H.O.L.Y.J.H.C.O.N.A.S.T.I.C.K !!!!

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