By Mike Appleton, Guest Blogger

“However, law is not color-blind.  Law, as the great Supreme Court Justice Oliver Wendell Holmes famously said, is about experience.  Culturally competent law practice requires that one understand societal realities and experiences and the legal implications they evoke.  To do otherwise is to engage in wishful thinking at best.”

– Wendell Griffen, “Lessons from Florida v. George,” wendellgriffen.blogspot.com (August 1, 2013)

The best man at my wedding in 1968 was, and is, a gay man.  We were roommates as freshmen and he became my best friend in college.  He has had a very successful career and has been in a committed relationship for many years.  We don’t see each other often, but we remain good friends to this day.  And if you had told me in 1968 that forty-five years later there would be preachers urging that homosexuals be confined behind electrified razor wire, or politicians lobbying for the death penalty for the “crime” of being gay, or pseudo-therapists insisting that sexual orientation is a “lifestyle” choice amenable to counseling, or seemingly rational people arguing against full legal equality for all human beings, I would have dismissed your opinion as absurd fantasy.  And I would have been wrong.

But I would likewise have rejected in 1968 any suggestion that almost fifty years thence racism would still permeate American society.  After all, most of the landmark victories in civil rights had occurred by that year.  The courts had issued decrees ending the legislated segregation that had successfully held a race in bondage for a hundred years following the abolition of slavery.  Martin Luther King had cajoled and shamed a nation into adopting laws prohibiting discrimination in education, employment, housing and public accommodations.  The right to vote, that most fundamental guarantee of participation in the life of the nation, had finally become real for millions of citizens.  Racial intolerance would be forever buried with the bodies of its then living adherents.  And I would again have been wrong.

The election of Barack Obama as President in 2008 was heralded by many as the dawning of a new age, the age of post-racial America.   In his 2004 speech at the Democratic National Convention, then Sen. Obama had declared,  “There is not a Black America and a White America and a Latino America and an Asian America-there’s the United States of America.”  Liberals wanted to believe that the election results had validated that speech.  The political right argued that the election of a black President meant that racial equality had become a reality and demanded an end to affirmative action and other programs deemed oppressive to whites.  The Supreme Court under John Roberts has been happy to oblige conservatives, steadily eroding the foundations of race-based preferences and, most recently, virtually emasculating the Voting Rights Act of 1965.

Contrary to the hopes of liberals and the beliefs of Justice Roberts, the notion of a post-racial America remains a dream.  If anything, the Obama presidency has brought into clear focus the extent to which racism remains a core feature of society.  We saw its ugliness in both election campaigns.  Throughout his time in office, the President has been castigated as a socialist, a Muslim (or Muslim sympathizer), a despot and an illegitimate pretender.  An Associated Press poll taken in October of 2012 found that anti-black attitudes had increased among whites from 51% to 56% between 2008 and 2012.  When he arrived in Orlando two days ago to speak to a Disabled American Veterans convention, the President was greeted by a number of protesters, some of them bearing signs reading “Kenyan Go Home.”

But for me the most telling reminder of the sad state of race relations in this country was the recently completed trial in the case of State of Florida v. George Zimmerman.  I know.  The demands of due process were satisfied.  The jury has spoken.  As a lawyer, that ought to be sufficient for me.  Anyone who has tried cases before a jury has had the experience of winning a losing case and losing a case that ought to have been won.  The system has been crafted over hundreds of years to enable decisions based upon relevant evidence of facts and reasoned principles of law.  We strive for the approximation of justice, because that is the best that we can do.

Yet the verdict in the Zimmerman trial is disturbing.  I cannot bring myself to accept the result as approximate justice.  And I am not alone. Recent polling by the Washington Post disclosed an even split of opinion among Americans on the verdict.  An overwhelming majority of black Americans disapproved of the jury’s conclusions, and only a slim majority of whites supported it.

The sides lined up long before the trial even began.  Blacks widely portrayed the death of Trayvon Martin as an act of cold-blooded murder. Supporters of Mr. Zimmerman in turn described Mr. Martin as a teenager out of control, a thug with a history of violent fantasies and an attitude prone to trouble.  The public was certain that the case was about race.  And despite the efforts of Mr. Zimmerman’s lawyers to eliminate race as an issue, it was in fact the unspoken them of the entire defense.  I say this because the legal justification for Mr. Martin’s death was predicated upon a series of assumptions that are fundamentally racist.  Consider the following themes:

1.  As a resident of the subdivision and a self-styled neighborhood watch captain, Mr. Zimmerman had a right to be present in the neighborhood that was superior to that of Mr. Martin.

2.  Because Mr. Martin was an outsider, Mr. Zimmerman had a right to question the legitimacy of the former’s actions.

3.  Mr. Martin had a duty to justify himself to Mr. Zimmerman.

None of these assumptions was seriously questioned in the course of the trial.  The defense created a foundation which wholly lacked any consideration of reciprocal duties.  The jury was told that Mr. Zimmerman had a right to follow Mr. Martin.  The jury was told that Mr. Martin had a responsibility to explain himself.  Why?  Mr. Martin had neither a legal nor moral obligation to account to Mr. Zimmerman for any reason.  Yet Mr. Zimmerman was somehow clothed with quasi-official status.

Moreover, Mr. Zimmerman created the conditions which directly led to Mr. Martin’s death.  First, he unilaterally determined that Mr. Martin was likely preparing to engage in criminal activity.  And the evidence for that conclusion?  Mr. Martin was black, was wearing a hoodie and was walking down the street after dark.  Second, Mr. Zimmerman continued to follow Mr. Martin after being told by a sheriff’s dispatcher that he should relent until the police arrived.  Does anyone seriously believe that a black 17 year-old walking down unfamiliar streets at night while being followed by an unknown person in a vehicle might not have reason to become alarmed?  Third, Mr. Zimmerman was armed, a blatant violation of the rules under which bona-fide neighborhood watch volunteers are supposed to operate. Mr. Zimmerman crossed the line from vigilance to vigilantism.  The fact that Mr. Martin may have initiated the physical altercation is both understandable and pathetically deficient as a justification for homicide.

The response to the verdict was also predictable.  The black community compared the case to Emmett Till, the black teenager viciously murdered in Mississippi in 1955.  Many whites shared the views of Ann Coulter, who routinely reminds us that a substantial investment in an elite education does not always produce beneficial results, and who concluded, “Trayvon committed the first (and only) crime that night by assaulting Zimmerman.”

The truth is that Mr. Zimmerman was in the best position to prevent the death of Trayvon Martin.  But he made a series of faulty assumptions based upon race.  As a result he became a predator who, when confronted by his prey, killed him.  Racism provided the occasion of Mr. Martin’s death; a dangerous extension of the law of self-defense provided the justification.

We legislate morality, but we cannot legislate moral thinking.  The elimination of statutory racism and the election of an African-American President are important milestones, but they are only steps in a long journey.  Trayvon Martin was not Emmett Till.  His death was not the result of institutionalized and state approved violence.  He was instead the victim of the racism of profiling, the racism of generalization and false assumptions.  It is racism once removed from the protection of the law.  But it is a racism which still kills.