The Verdict and the Law

This is a post that I have no desire to write. But the reaction to the acquittal of George Zimmerman for shooting Trayvon Martin is, to my mind, completely understandable, and I confess to a good deal of frustration about the response to it by some of my fellow lawyers, whose reactions seem at best blinkered and disconnected. The breaking point for me was this exchange involving Jonathan Turley, whom I usually admire:

JUDY WOODRUFF: Let me try to broaden this out.

Jelani Cobb, does this verdict speak in any way to the ability of minorities in this country to get a fair trial?

JELANI COBB: Well, I think this verdict doesn't tell us anything about race and the justice system that we didn't already know.

And what's disturbing about this is, you know, regarding Professor Swain's previous comment, is we have said that the amount of crime in African-American communities somehow or another works against someone, that's endorsing the very logic of racism.

Like, no amount of white crime would allow us to simply make a blanket prima facie assumption that a white person is a criminal.

And so each individual is supposed to be regarded on their own merits. I thought that is what was key to the Constitution and its guarantee of individual rights.

And so in endorsing this kind of profiling, this kind of blanket profiling, the only thing that we will be guaranteed of is more incidents like Trayvon Martin's tragic death in the future.

JUDY WOODRUFF: Jonathan Turley, you're shaking your head here.

JONATHAN TURLEY: No. Where I disagree is, is that once again, we seem to be detached from what the evidence was.

This jury at the end of this process knew nothing more of what happened at that fateful night than at the beginning of the trial. There were no witnesses to tip the balance. Essentially, the situation was in equipoise. You had two narratives that had support from different witnesses.

The jury is not there to make a guess and it's certainly not there to make social judgment calls. They didn't have enough to convict. And I know people are frustrated by that. But the system worked. This was a fair trial.

JELANI COBB: May I please respond?

JUDY WOODRUFF: Yes, go ahead.

JELANI COBB: Well, so this wasn't a situation of equipoise, because the fact of the matter is, whatever the conflict was, it was precipitated by Mr. Zimmerman.

The police -- the dispatcher told him not to get out of his vehicle. He proceeded to get out of his vehicle. This is a person who followed someone by car and on foot. And if there was a conflict, if there had been a physical conflict that evolved out of that, it would have been because Mr. Martin felt threatened, which is a justifiable, reasonable presumption.

If anyone is walking down a dark street at night in the rain and someone has followed them in a car and on foot, you might presume that you are actually at risk.

And so if Trayvon Martin struck him first, if Trayvon Martin struck him numerous times, this would be the action of somebody who reasonably feared for his life.

JUDY WOODRUFF: We're going to let Jonathan Turley respond. And then I have a final question for all of you.

JONATHAN TURLEY: Sure. Mr. Cobb, where I disagree with you -- and we can't say that the jury believed Zimmerman or even liked Zimmerman in this decision. They simply didn't have enough to convict Zimmerman.

But the actions you described were legal. He's allowed to get out of his car. He's allowed to follow someone. He's even allowed to be armed.

And I think that people are investing so much in the case that they don't recognize that these were lawful acts, and you have to presume things in this case that a jury's not supposed to presume when there's a presumption of innocence.

(My italics)

This is the kind of abstract logic-chopping nonsense that gives our profession a bad name. The notion that because a series of acts is, when broken out of context and viewed discretely, each individually lawful, the sum of the actions taken together is not sufficient to instill fear of bodily harm in the prey would create a stalker and an abuser's charter. Think about it: it's a dark, rainy night, in a desolate location. An adult in a car follows a kid in the dark. The kid tries to avoid him. The adult gets out of the car and continues the pursuit. Even if Trayvon Martin didn't know Zimmerman was armed, he had every right to fear for his life.

If that's your son, your nephew, your godson--anybody you actually care about, as opposed to an abstraction in a law school exam--do you really believe that kid doesn't have any reason to fear for his safety? Because that's the conversation between Cobb and Turley--Cobb is saying that Trayvon Martin had a right to self-defense, and that the aggressor, Zimmerman, put him in fear of serious bodily injury or death. Turley is responding that Martin's fear doesn't count until Zimmerman performs an independently unlawful act.

Turley's willingness to decontextualize the events leading up to Martin's death is important because, looked at in context, with Zimmerman as the aggressor, as I believe is the proper analysis, the correctness of the verdict even under the self-defense-on-steroids provided by Florida law is far less clear. Under Florida's self-defense statute self-defense is limited in the case of an aggressor, who must show:

The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

(My emphasis.) Now, Zimmerman did not identify himself as a Neighborhood Watch volunteer, or take any steps to dispel Martin's entirely legitimate fear for his life. Nor do I find his self-serving statement that he was headed back to the car credible in light of his fired-up,"these assholes always get away" conversation with the dispatcher, whose instruction to not get out of the car and follow he had just minutes ago disobeyed. I find that so incredible--Zimmerman charges out of the car, ignoring instructions, cursing that this "fucking punk" (Zimmerman's words) is going to get away, and then immediately decides to turn back to the car.

The jury appears to have joined Turley in decontextualizing--and also in giving the defense the benefit of a "Stand Your Ground" defense that the defense did not in fact raise, if this interview with a juror is to be believed:

COOPER: Did you feel like you understood the instructions from the judge? Because they were very complex. I mean, reading them, they were tough to follow.
JUROR: Right. That was our problem. It was just so confusing what went with what and what we could apply to what. Because I mean, there was a couple of them in there that wanted to find him guilty of something. And after hours and hours and hours of deliberating over the law and reading did over and over and over again, we decided there’s just no way — no other place to go.
COOPER: Because of the two options you had, second degree murder or manslaughter, you felt neither applied?
JUROR: Right. Because of the heat of the moment and the Stand Your Ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
COOPER: Even though he got out of the car, followed Trayvon Martin that didn’t matter in the deliberations. What mattered was the final seconds, minutes when there was an altercation and whether or not in your mind the most important thing was whether or not George Zimmerman felt his life was in danger?
JUROR: That’s how we read the law. That’s how we got to the point of everybody being not guilty.

But even if you believe that the unsworn statement of Zimmerman and the other evidentiary issues are enough to eke out reasonable doubt and justify an acquittal--well, fair enough, but that doesn't make this case a ringing endorsement of the notion the the rule of law always leads to justice. Earlier in the NewsHour conversation with Turley and Cobb, the other two panelists had a telling discussion:

CHRISTINA SWARNS: You know, with -- I obviously agree. Young black men shouldn't be getting killed across this country.

But what happened in Florida to Trayvon Martin was that Mr. Zimmerman looked at him walking down the street with a bag of Skittles and a bottle of iced tea and determined that based on factors that he could see this young man was a criminal.

He warranted a call to the police, he warranted being followed, he warranted being followed -- Mr. Zimmerman getting out of his car and following him down the street on foot, notwithstanding the fact that the police department told him not to get out of the car, and notwithstanding the fact that everyone agrees that this young man was doing absolutely nothing wrong.

There was nothing criminal about what he was doing. There was nothing apparently criminal about what he was doing. The only thing ...

CHRISTINA SWARNS: ... about him was that he was black.

CAROL SWAIN: We know from other evidence that the school had apprehended him and found jewelry.

CHRISTINA SWARNS: Mr. Zimmerman knew none of that. Mr. Zimmerman didn't know a single thing about that. All he knew at that moment was that Mr. -- he didn't know anything about this child. This was a teenager walking down the street.

Again, the Zimmerman defender here is eager to impute to Zimmerman knowledge of some ground for suspicion that Zimmerman could not possibly have had, and that nobody claims he had. Somehow the fact that Trayvon Martin was not a perfect teen retroactively justifies his being profiled by Zimmerman--who just presumed from Martin's youth color and clothing that he was a criminal.

Turley is right to stress that the trial was a fair one, and comported with due process. Where he is terribly wrong, in my opinion, is to presume that a fair trial is not just a necessary but a sufficient guarantee of justice. This case in no way stands for that principle; quite the obverse, rather: that our justice system is profoundly flawed, and that human judgment is a very dicey business indeed.