trayvon_m001
Op-Ed

The George Zimmerman Trial: Virtues of an Acquittal

Richard Lempert

The bottom line is that a boy, on the cusp of manhood, is dead; his only crime: wearing a hoodie while going out to buy a can of soda. Everything that followed is a footnote. There is nothing to celebrate here. The man who killed him is acquitted, although he behaved badly, ignored what the police told him, and appears to have been motivated by racial stereotypes if not racial hatred. He may also, in fact, have committed murder in the second degree or manslaughter, but he will not serve time if he has. Yet his trial and the verdict are not without their virtues.    

Chief among them is that legal justice has been done. It is easy to construct scenarios consistent with a guilty George Zimmerman. We have only Zimmerman’s word that Trayvon Martin turned on him or ambushed him, yet he refused to tell this tale under oath. Zimmerman’s claim that Martin pounded his head violently and repeatedly against the pavement such that he feared for his life seems inconsistent with the few bumps and scrapes on his head and the absence of any trace of his DNA on Martin’s fingernails, hands or body. If Martin was pounding Zimmerman’s head, he wasn’t aggressive enough to prevent Zimmerman from retrieving his gun and precisely, or with great luck, aiming it directly at Martin’s heart. The defense’s strongest evidence, testimony that Martin was on top of Zimmerman as they struggled, tells little of moment, even if it is accurate. Consider. You turn to confront a man who has been following you and is closing in. You see him reaching for a gun. You lunge at him to stop him from getting it, and your weight pushes him to the ground with you on top. Your position on top as you struggle does not mean you are the aggressor.

But this is all speculation. People cannot and should not be convicted on speculation. The evidence proving George Zimmerman guilty of murder or manslaughter beyond a reasonable doubt wasn’t there, and it doesn’t matter that it wasn’t there because George Zimmerman never took the stand or because there were no eye witnesses or for any other reason. George Zimmerman was not proven guilty of either murder or manslaughter, and the jury, after some deliberation, reached the right result. If there is anything to celebrate about the trial, this is it. The system worked.

Some might argue, as Alan Dershowitz has, that the system did not work; that the case should not have been tried in the first place, and that George Zimmerman was punished by the process regardless of the outcome. Zimmerman certainly suffered from the process, as any acquitted criminal defendant does, and Dershowitz has a point, but I disagree. By the standards of cases prosecutors regularly bring, this is far from the worst in terms of evidential strength and the likelihood of conviction (Half the jury voted to convict on the first ballot). The state could not know how Martin’s girlfriend, their lead witness, would appear on the stand, nor the quality of Zimmerman’s defense. Moreover, the prosecution did not anticipate that on the eve of trial their potentially most persuasive evidence, the forensic testimony that it was Martin who was calling for help just before the shot was fired, would be barred by the judge. Although this decision too appears correct, prosecutors have often been allowed to present shaky forensic evidence.

If in retrospect the verdict acquitting Zimmerman was correct, the decision to try Zimmerman also had substantial virtues. The initial outrage when Florida’s stand your ground law was invoked to set Zimmerman free with no trial and minimal investigation was more than justified. Absolving Zimmerman of responsibility at that point would have meant that when a person killed another with ambiguous forensic evidence and no witnesses about, the killer’s story of what happened, coupled with consistent but minor and possibly self-inflicted injuries, would be enough to allow the killer to go free. The trial not only dampened outrage triggered by a half-hearted police investigation and a local prosecutor’s overly quick willingness to absolve Zimmerman, but the weaknesses in the evidence the state mustered have dampened outrage at seeing Zimmerman walk, even among those who still believe him guilty. The case no longer represents a Southern state’s refusal to take the killing of a black youth seriously, which is what it stood for when the news first broke. Even if there are some who do not accept the verdict, trying Zimmerman enhanced legitimacy.  

The trial also highlights a fundamental flaw in stand your ground laws. If there was not enough evidence to prove Zimmerman guilty beyond a reasonable doubt, there was also insufficient evidence to prove him innocent. That an unjustified homicide was not proved does not mean the homicide was justified. The case turned, as criminal cases often do, on the allocation of the burden of proof, an allocation that the defense emphasized in its closing argument. On the facts as we know them either Zimmerman or Martin could have been the first aggressor. Hence under Florida’s stand your ground law, it is possible that both Zimmerman and Martin could reasonably claim to have been standing their ground in that each honestly and reasonably felt his space and person was being invaded by the other in a way that constituted an attack.[1] If Zimmerman had a legal right to follow Martin as he walked home, Martin had a legal right to confront Zimmerman and to tell him to go away. If a fight ensued in which each party attacked the other, the law appears to authorize each to use force, including deadly force, to prevent the assault the other. Had Martin managed to seize Zimmerman’s gun in the struggle and shot him, Martin would have been the person seeking exoneration because he had stood his ground. It is hard to come up with any policy justification for a law which not only authorizes either of two fighters to use deadly violence but also encourages it by overturning prior law that imposed a duty to retreat if retreat was possible. To the extent “stand your ground” protects a deserved right of self-defense, the law of self-defense is, as we saw in Zimmerman’s trial, more than adequate.

The trial may also have had important educational and deterrence functions.  Future George Zimmermans will most likely be more prone to listen to 911 operators who suggest they back off from following someone they regard as suspicious and wait for the police to arrive, and gun toters in altercations may be less likely to think stand your ground laws will protect them if they pull out their guns and fire. Trayvon Martin’s death may well mean that others will live, but no one who owes his life to Martin and to the decision to try Zimmerman will ever know.

“When it comes to race, however, the trial did little to advance conversation.”

When it comes to race, however, the trial did little to advance conversation. Both the prosecution and the defense tip-toed around the race issue, and some of their comments seemed to deny its existence. As a defense strategy this is understandable; acknowledging the possibility that Zimmerman was motivated by racial prejudice and racial stereotyping would have made the second degree murder charge more plausible and reduced the likelihood of juror identification with Zimmerman. The prosecution most likely had its own goals.  Chief among them, I expect, was to prevent the stoking of racial tensions and to minimize the likelihood of violent reactions to the verdict. These aims are understandable, but had the prosecution’s evidence been stronger the concern for extra-trial consequences might have cost them the verdict they sought.  As the audience, however, we should not ignore race.  It is unlikely that Martin would have been followed, much less killed, had he been white.  Zimmerman did not use the N word in talking about the boy he was following or unprompted refer to his race, but he made it clear that he profiled Martin as a useless punk.

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Some commentators have tried to defuse racial motivation claims by suggesting that it was Martin’s hoodie rather than his race that caught Zimmerman’s attention and led to his rant. If true, an interesting lesson about contemporary racism can be drawn. We should ask why wearing a hoodie aroused Zimmerman’s suspicion. I expect it is because Zimmerman and others associate hoodies with black youth and see them as the outfit of black gang members. In these imaginations it doesn’t matter that enough hooded sweatshirts have been sold to garb every black gang member hundreds of times over. If the apologists for Zimmerman are to be believed, the association of hoodies with race and violence is so strong even a white youth wearing one would be regarded with suspicion.  Often today, racial disadvantage works this way.  People unknowingly react to race in ways that disadvantage blacks. With no awareness of what they are doing, employers don’t call the woman with a “black name” on her resume for a job interview but interview a white with identical credentials, or they don’t hire a black man who was charged with possessing marihuana and acquitted, but they “give a second chance” to a white man who pled guilty to possession. Real estate agents encourage the white sounding voice on the phone to come look at a rental unit even though the apartment doesn’t have everything they seek, but they tell the black voice that their preferences mean the apartment is not suitable. Police in training shoot more quickly when a black figure makes a possibly hostile movement than when a white figure does the same. Only controlled tests or statistics reveal how race affects the behavior of some, but the same measures reveal that others behave consistently and without discrimination regardless of race. This means that outside of controlled tests, like “race audits,” one seldom knows whether race has played a role in a job hunt failure or the unexpected renting of an apartment a black couple was interested in.  When race effects are inconsistent and subtle and when both the discriminator and the victim have difficulty perceiving the role that race is playing in decisions, it is difficult to eradicate the systematic disadvantages that plague racial minorities. Yet unless society changes to eliminate the hidden vestiges of past racism, the price paid will include more dead Trayvon Martins.

George Zimmerman’s legal troubles are not entirely over. Some are pressuring the Justice Department to charge him with hate crime or other civil rights violations. This would be a mistake. Many would see federal charges as excessive and illegitimate, and some would attribute prosecution to the fact that the President and his Attorney General are black. But even if these perceptions would not exist, federal criminal law should not be invoked. There is always cause for unease when following an acquittal different laws are invoked to punish a person for the behavior evaluated in the first trial. If the evidence was insufficient to justify culpability, the government, even another government invoking different laws, should not get another bite at the apple. An exception for crimes of racial violence is justified when an acquittal appears to have been against the weight of the evidence and motivated by the biases of a local court and/or jury. That is not the case here. The Florida trial was fair, and the judge and jury seemed impartial. The evidence needed to convict was simply not there. Unless persuasive new evidence that Zimmerman committed a crime is uncovered (e.g., Zimmerman brags that he got away with murder) the federal government should let the matter drop.  The same is not necessarily true of Martin’s family. They could bring a civil suit, in which the burden of proof would be less than in a criminal case, and Zimmerman would have to testify. A suit by Martin’s parents has more to commend it, both in its prospects for success and for what it could do to flesh out the picture of what happened. But a civil jury too might find for Zimmerman, and if Zimmerman is likely to leave a civil suit with his image somewhat sullied, the same will be true of Trayvon Martin.  His parents would be wise to avoid the pain of a legally sanctioned assault on their dead son’s character. Best to leave what is in the past past and to concentrate on making things better in the future. The place to begin making things better is with the repeal of Florida’s stand your ground law.




[1] The law as applied to public spaces provides:  A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.