Wednesday, August 13, 2014

Trial and Error: The Trayvon Martin-George Zimmerman Controversy and the Pitfalls of Politicizing Criminal Cases

     When George Zimmerman was acquitted of murdering Trayvon Martin one year ago, I took to Facebook to point out the weakness of the evidence of Zimmerman’s guilt and to marvel at laypeople’s rush to judge the case with little or no knowledge of the facts. I further admonished my Facebook friends to “Stop pretending that you know exactly what happened that night, folks. You don’t.” One relative of mine chided me for pooh-poohing the emotionally charged popular reactions to the verdict: “Just let people have their emotional reactions and don’t fall into that trap of lecturing people on not having all the information nor understanding the legal workings of this and similar cases.” I thoroughly disagreed; the time to debunk widespread misconceptions is ASAP, before those attitudes harden. Nonetheless, I knew well the ad hominem bile to which I would have exposed myself by commenting on the case publicly at that time. So I mostly kept my overall views on the subject to myself until the paroxysm of outrage over the case’s outcome subsided. Now, the verdict’s first anniversary, seems as fitting a time for me to emerge from the bunker as any.

In a nutshell: due to the weakness of the evidence that George Zimmerman’s fatal shooting of Trayvon Martin was not justified by self-defense, Zimmerman’s acquittal was more warranted than a conviction would have been. Unfortunately, America clearly still has not learned the main lesson of racially charged criminal cases past: the folly of judging any criminal defendant in the court of public opinion without—or in spite of—credible evidence.

A year after the verdict, only the book-ends of the Zimmerman-Martin confrontation are clear. The critical middle part of the story—between Zimmerman’s tailing of Trayvon and his shooting of the youth—was never clear enough to dispel all reasonable doubt about Zimmerman’s guilt. According to Zimmerman, at some point during the alteration, Trayvon punched him in the face, knocking him to the ground, and then repeatedly banged his head into the sidewalk. Zimmerman claimed that his gun became exposed and Trayvon began reaching for it, whereupon Zimmerman grabbed the gun and shot Trayvon in the chest. If this version of the confrontation is true, then it arguably was objectively reasonable for Zimmerman to think that he was in imminent danger of death or serious bodily harm. It is this legal standard that governs the lawful use of deadly force in self-defense.

The prosecution never did manage to rebut this account of the altercation convincingly. Even if Zimmerman did follow Trayvon because of his race as the prosecution sought to prove, Trayvon may still have physically attacked Zimmerman, and thus the latter may still have fired in self-defense. Trayvon’s mother identified the voice of a person screaming for help in the background of a 911 call as her son’s, but of course the defense was able to produce several friends and relatives of Zimmerman’s to testify that the voice was his. An FBI voice-analysis expert, Hirotaka Nakasone, testified that he could not determine who was calling for help on the tape, and that such recordings tend to be highly unreliable in any case.

Other witnesses didn’t get a clear view of the incident through the rain or the darkness and thus couldn’t conclusively identify Trayvon as the person pinned to the ground during any part of the scuffle. Expert witness Dr. Vincent Dimaio, a forensic pathologist, testified that Trayvon’s gunshot wound supported the claim that he was on top of Zimmerman when he was shot. Apparently Trayvon’s top was hanging away from his chest when the shot was fired, which suggests that he probably was bent over Zimmerman at that moment. Moreover, arguably the case’s most controversial witness, medical examiner Dr. Shiping Bao, testified that the knees of Trayvon’s pants were stained, and a police officer testified that Zimmerman’s back was wet and had pieces of grass on it. These claims, too, were consistent with Trayvon’s having knocked Zimmerman down and kneeled over him to pummel him.

Dr. Dimaio also testified that Zimmerman’s injuries were consistent with his having been struck from above and having had the back of his head banged into concrete. Dimaio stated further that such an attack can cause serious head trauma, even without leaving visible superficial wounds. Although medical examiner Dr. Valerie Rao testified—based on footage and photographs of Zimmerman’s injuries—that she thought the wounds were “insignificant” and “non-life threatening,” the jury was left to wonder which expert was more to be trusted. One thing is certain: heads wounds from simple fistfights can be fatal, as some recent incidents show.

According to Anthony Gorgone, a crime lab analyst with the Florida government, the investigation failed to turn up any of Zimmerman’s blood or DNA on Trayvon’s hands or under his fingernails. Yet the prosecution left it unclear whether it was possible for Trayvon to attack Zimmerman without getting the latter’s blood or DNA on his hands. Without in-depth analysis of this issue and others, the jurors, lacking expertise in such matters, couldn’t conclude definitively that Trayvon didn’t attack Zimmerman. The cuts and bruises on Zimmerman’s face and head were real, whereas Trayvon appeared to have suffered no injuries other than the fatal gunshot wound to his chest—and broken skin on his knuckles, which also suggests that Trayvon did indeed inflict some “whoop ass” on Zimmerman. (Those are the words of Trayvon’s irrepressible friend Rachel Jeantel, who was on the phone with him shortly before the shooting and who publicly conceded after the trial that she thought Trayvon might have thrown the first punch.) The available evidence, though hazy, weighed more heavily in favor of Zimmerman’s self-defense argument than in favor of the prosecution’s case.

For these reasons, the jury was not to be faulted for coming back with “not guilty” verdicts on both charges in this case. Florida law required the jury to convict Zimmerman only if the prosecution proved, beyond a reasonable doubt, that he shot Trayvon with a “depraved mind” and if the defense failed to prove that it was objectively reasonable for Zimmerman to believe that he had to use deadly force in order to protect himself from death or great bodily harm. The evidence presented at trial arguably raised that reasonable doubt and supported Zimmerman’s affirmative defense; accordingly, the acquittal was a fair judgment for the jury to render.

Nothing that I’ve written here amounts to a personal defense of George Zimmerman. The man always struck me as somewhat slow-witted, and rather creepy at that—a man who likely suffers from delusions of crimefighting grandeur and possibly harbors racist prejudices as well. (This assessment of his character is borne out by a list of his run-ins with the law, both before and after his shooting of Trayvon.) I have no doubt about the folly of his decision to follow Trayvon in the first place, and I agree that he thus bears the lion’s share of the moral responsibility for this tragedy. It is quite plausible that Trayvon’s race played some (perhaps subconscious) role in Zimmerman’s decision to tail him.

None of the above factors, however, made Zimmerman legally guilty. Following a “suspicious” individual around one’s neighborhood—however unwise it may be, and whatever bigoted motives one may have for doing so—is not a crime. The police dispatcher advised Zimmerman not to shadow Trayvon because it was foolhardy and imprudent, not because it was illegal—and he actually did not forbid him to tail the boy, but only told him, “We don’t need you to do that.” Nor did the evidence presented at trial prove that Zimmerman initiated physical violence against Trayvon; if anything, it suggested the opposite. We cannot rule out the possibility that Trayvon attacked Zimmerman in a way that made it reasonable for the latter to think he was in imminent danger of death or severe bodily harm. For those reasons, acquittal was probably the appropriate verdict.

This conclusion in no way denies that the justice system frequently treats minorities unjustly, or that the self-defense laws of Florida and many other states may cry out for reform. Yet on this last matter, too, misconceptions abound. The Sunshine State’s much-maligned “Stand Your Ground” law was widely blamed for either Trayvon’s death, or Zimmerman’s acquittal, or both. That blame was misdirected; the essence of a Stand Your Ground law is that a person under attack no longer has a legal duty to retreat before using deadly force in self-defense. Zimmerman’s story, however, had him pinned to the ground on his back and being battered by an irate Trayvon immediately before he fired the fatal shot. Even in non-Stand Your Ground states, a person under attack has a duty to retreat only where it can be done safely and practically, an option that was foreclosed to Zimmerman under these circumstances. Therefore, both the erstwhile duty to retreat and its nemesis, Stand Your Ground, were moot in this case—which would certainly explain why Zimmerman’s lawyers didn’t cite Florida’s Stand Your Ground law in his defense.

What is not moot in the sad story of Martin and Zimmerman is the public reaction to it. Too many observers posited from the beginning—with little or no firm evidentiary basis—that Trayvon was totally blameless and that George Zimmerman was as guilty as sin. Too many people reacted to the verdict by fulminating that the justice system had failed; that the verdict was the product of institutionalized racism; that American law regards black lives as cheap; that racists now have a veritable license to kill young black men. Such sentiments made this case the latest in a long, loathsome line of racial confrontations in which many African-Americans reflexively took the side of the Black disputants, only for the evidence to reveal in the end that things weren’t so simple.

In 1987, an African-American teenager from upstate New York, Tawana Brawley, claimed that a group of white men, including a police officer and a local prosecutor, had kidnapped, assaulted and raped her. The Reverend Al Sharpton made his bones as America’s racial-rabble-rouser-in-chief while “representing” Brawley by hurling a string of libelous charges against the men she accused. In the end, a grand jury investigation concluded that the entire affair had been a hoax—concocted, according to Brawley’s ex-boyfriend, to protect her from punishment by her stepfather for running away from home.

A generation later, in 2006, an African-American exotic dancer, Crystal Mangum, accused three members of Duke University’s lacrosse team of racially slurring, beating and gang-raping her at a team party. In response, the prosecuting D.A., Mike Nifong, committed a slew of ethical violations for which he ultimately had to be disbarred. The media predictably sensationalized the case, students protested at Duke and on college campuses nationwide, and academics excoriated the athletes without ever laying eyes on a shred of evidence. Even the Duke administration abandoned its own students to have their reputations dragged through the mud. Eventually, however, it emerged that Ms. Mangum—a deeply troubled and mentally ill woman who has a history of making false rape accusations and who was recently convicted of murdering her boyfriend—had fabricated the story wholesale.

Of course, racially motivated white-on-black violence is not purely a thing of the past; indeed, a slew of similar cases garnered attention in the aftermath of the Zimmerman verdict. In Milwaukee, Wisconsin in July 2013, a 76-year-old Caucasian man, John Spooner, was found guilty of first-degree intentional homicide for shooting and killing a 13-year-old African-American boy, Darius Simmons, whom he suspected of breaking into his house and stealing his shotgun. (The trial court ultimately rejected Spooner’s plea of innocence by reason of mental disease or defect.) In November 2013 in Dearborn Heights, Michigan, homeowner Theodore Wafer shotgunned 19-year-old Renisha McBride to death on the porch of his home after she crashed her car on the outskirts of Detroit. (The case is currently in the pre-trial phase.) In Florida in December 2012, a 46-year-old Caucasian man, Michael Dunn, shot and killed Jordan Davis, another 17-year-old African-American, at a gas station after demanding that the youth and his friends turn down their “thug music”. Dunn’s lawyer—unlike George Zimmerman’s—actually cited Florida’s Stand Your Ground law in his client’s defense. That case, however, had a more unexpected outcome: The jury convicted Dunn on three counts of attempted second-degree murder but was inexplicably hung on the charge of first-degree murder. (Fortunately, the D.A.’s office announced that they would seek a retrial of Dunn on the murder charge, and it now appears that said retrial will take place in September.)

If all the facts alleged by the prosecution in those cases are true, these men would be far better candidates for public flagellation than George Zimmerman ever was. For reasons made obvious by video footage of the shooting of Darius Simmons, self-defense was not even an issue in John Spooner’s trial. Renisha McBride’s killer claims that he was afraid someone was breaking into his house, but it is hard to see how he reasonably feared death or great bodily harm given that he had to open his front door to blast her. While Michael Dunn argued self-defense, Florida’s Stand Your Ground law was of little help to him, and with good reason. With or without a duty to retreat, self-defense law requires that a person reasonably believe that his/her life or bodily safety is in imminent danger before using deadly force. Given the reported facts in Dunn’s case, his belief was anything but reasonable. He claimed that the youths threatened him and brandished a shotgun, but no weapon was found in or near their car, and whatever verbal threats they may have leveled at him didn’t endanger his life. The evidence in Michael Dunn’s trial militated heavily against his self-defense claim—unlike the facts in the Zimmerman case.

I fully understand why the Zimmerman verdict was so hard to swallow for African-Americans who have become bitterly accustomed to being railroaded by their country’s justice system. President Obama was absolutely right when he remarked, “[W]hen you think about why, in the African-American community at least, there’s a lot of pain around what happened here, I think it’s important to recognize that the African-American community is looking at this issue through a set of experiences and a history that…doesn’t go away.” There is precisely nothing wrong with acknowledging those feelings and experiences, and there was plenty that is wrong with ignoring or dismissing them.

Nonetheless, lambasting a justice system that actually functioned just as it is meant to function never was an appropriate response to the outcome of Florida v. Zimmerman. The right reaction in this and other such cases is to reserve judgment until courts of law vet the evidence. That approach does not mean cavalierly dismissing every allegation of criminal bigotry. If juries acquit defendants in the face of compelling evidence of guilt, then it is legitimate for informed observers to point out those jurors’ error. In other cases, however, the evidence is either highly exculpatory or simply too unclear or flimsy to establish guilt. Defendants in such cases should be acquitted, and the uninformed masses should admit that they are not qualified to judge what happened. I and many other observers stayed off of the outrage bandwagon in the Zimmerman case not because we are unwilling to hold homicidal bigots to account, but because legal guilt must be judged based on solid evidence. For all of their flaws, courts of law are far better equipped to evaluate that evidence than the court of public opinion is.

Injustice in the American justice system is a reality, and African-Americans disproportionately fall victim to it. That fact, however, does not mean that the system failed this time. Nor does it justify the rush to judgment in this case—one not entirely unlike the mass hysteria that followed the infamous beating and rape of the Central Park jogger in 1989. That sensational reaction ultimately sent four young Black men and one young Latino to jail for more than a decade for a crime they did not commit. It is fundamentally the same kind of injustice to which the people wrongly accused in the Tawana Brawley and Duke lacrosse cases fell victim: the public vilification of criminal defendants by uninformed mobs. The soberer heads among us must remain vigilant, on the lookout for these public-opinion stampedes and ready to resist them whenever they rear their heads. In the meantime, all we can do is keep an eye on the wastrel George Zimmerman, lest his delusional self-regard make him a continuing threat to public safety—and continue to pray for the soul of a young man who met his Maker too soon.


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