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Saturday, July 20, 2013

Mea Culpa -- to a Point

Last night, after I scraped my ego off the floor and tried to block out the ad hominem comments, I went back and reviewed the testimony of neighbor and eyewitness John Good, initial police reports on George Zimmerman's demeanor and responses to questioning at the scene, Rachel Jeantel's testimony, etc. 

I admit to being caught up in the emotion of the post-verdict moment, to wanting the facts to be other than they were, to being distracted by the sloppiness and ethically-questionable handling of the case by Angela Corey's office and -- perhaps most importantly -- by my years of defending young men of color who are regularly screwed by a system of justice that is deeply flawed. 

I understand why the jury acquitted, I respect their decision, and *contrary to my earlier post* I would have been troubled -- based on the evidence presented -- if George Zimmerman had been convicted of the charges brought against him. 

In other words, I was wrong. 

Yet, the vicious tone of some of the comments, both here and elsewhere, saddens me. No, I am not "deranged." No, I am not lacking in "rational thought." I am sorry you were "appalled," "shocked," "horrified" or "disturbed" by my perspective. I am not sorry, however, to have shared what I repeatedly described as my "visceral" response to the verdict. I doubt I am the only law professor or public defender to have these reactions, and I don't regret initiating the discussion. In fact, from a pedagogical point of view, the thread and this postscript would provide a valuable teaching moment for law students to reflect upon. 

Posted by Tamar Birckhead on July 20, 2013 at 09:20 AM | Permalink

Comments

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Your comments today and yesterday only prove that you are in fact a thinking rational person who is not afraid to think aloud and consider all points of view. I think you may have apologized too soon. I think emotion is no less valid than intellect and I suspect that like me and President Obama too, apparently, you will go back and forth in your own mind regarding the correctness of everything about this tragic case. Racism is so terribly complex and so deeply ingrained in our society that even a well-meaning, self appointed, neighborhood watch "savior" can unknowingly act in accordance with whatever impulses are manifested by its occurrence. We, in America especially, only pretend to understand racism. Just because we are not afraid to mention the word every now and again doesn't mean we have the slightest understanding of racism. Indeed, the only thing we --those of us who have been followed, profiled, suspected, because of our skin color -- is how we feel. Until we can make intellectual sense of that which we know in our hearts, that which we feel to be wrong all we can do is express our outrage, sometimes yelling and sometimes quietly. I will not dismiss what I know to be true only because it is too difficult to express that valid rage in in a way that assuages the guilt of those who have had the luxury of never being subjected to racism. Even this comment unsatisfactorily expresses my reaction to both views (today's and yesterday's), but I know that racism played a huge role in the outcome of the case even as I am perfectly willing to stipulate that all the actors, even Zimmerman, did not set out to act with the explicit intention of a white hooded member of the local town council.

Posted by: Darryll Jones | Jul 20, 2013 11:24:13 AM

Well said.

Posted by: Patrick S. O'Donnell | Jul 20, 2013 1:50:55 PM

Whether or not Prof. Birckhead is deranged or illogical, it seems indisputable that she posted an article on a topic which she apparently knew (and, probably knew she knew) almost nothing about.

We have a commenter (if I am not wrong, Prof. Jones of FAMU) now affirmatively rejecting any duty to think rationally when the results don't comport with his emotions.

This is, indeed, a valuable lesson for law students.

Posted by: TLA1L | Jul 20, 2013 2:42:35 PM

I think we are viewing this through the prism of a failed prosecution for second degree murder, and an added on charge of manslaughter -- a theory that was never developed by the prosecution. Of course we will never know, but had the prosecution constructed a different (effective) narrative around the events of that tragic evening, this conversation would be different. The notion that there could only have been one answer --acquittal-- and anything else would have been "appalling" or "deranged" would not have such currency for reasonable people.

DJ, your comment is very affecting. I have long believed it true, but have had my belief reinforced by these events, that will not "overcome". Being a non-white minority in a culture still too influenced by the doctrine of white supremacy will not permit it. The most we can do, with white allies, is to continue to struggle.

Posted by: AGR | Jul 20, 2013 2:55:00 PM

Yes, well said. Two important parts of scholarly discourse (well, really, *any* polite discourse) that are sadly lacking on the web are (1) civility and (2) admissions of mistake about any but trivial matters. I guess I might add a third: the idea that citation is valuable and should be done if convenient, even tho it's not relevant here.

On (1), it really would be a service to society if bloggers bounced back uncivil comments with the educational form message: "Your comment was uncivil. Please rephrase and resubmit."

Posted by: Eric Rasmusen | Jul 20, 2013 2:59:18 PM

"I think emotion is no less valid than intellect"

This is why we can't have nice things.


To our hostess, I must say that you were in fact deranged as evidenced by your radical change in position upon further analysis. However, there is no shame in that as we all tend to be deranged by default. The measure of one's ability to reason is to occasionally overcome that derangement, which you have apparently managed to do. Kudos for that.

Posted by: mike | Jul 20, 2013 3:01:10 PM

Tamar, congrats for your openness and honesty.

Posted by: [email protected] | Jul 20, 2013 3:08:55 PM

I read this post before reading your earlier one and the comments there. Based on your description here, I would have expected that you were treated unfairly in the comments. But when I read them, with maybe one or two exception, all of the comments were rational and respectful responses to an extraordinarily offensive post.

While you say that yours was simply a "visceral" reaction to the verdict, it was written several days after the verdict was announced. Indeed, as you said, it was written after much had already been said and, apparently, after some reflection on your part about whether you had something to add to the discussion.

And, I'm not sure what it means (or why it's relevant) to say that you had this feeling "as a mother" rather than as a law professor. Indeed, as you say elsewhere, you don't, in fact, "separate out" those different roles. More to the point, a person who actually thinks that juries should convict people of murder in the absence of proof beyond a reasonable doubt--which you apparently do not actually think--is not fit to teach criminal law (particularly in a clinical setting), regardless of whether she thinks this as a law professor, a mother, a blogger, a truck driver, or a ballerina.

Having said something that was wrong and received some pointed but civil criticism, you now acknowledge your mistake. Good for you for doing so. Nobody likes admitting they were wrong and not many people do it.

But rather than really take responsibility for your words, you wrongly attempt to shift the focus to the reaction to your comments, which were certainly not "vicious." (At least not in the comments section to this blog, I admit I did not read any reactions elsewhere in the blogosphere).

Posted by: JJB | Jul 20, 2013 3:29:21 PM

Darryl, you say "self-appointed." Wasn't that a term that the prosecution was forbidden to use at trial because they had no evidence for it? What is the evidence upon which you base the claim of "self-appointed."

Posted by: trial observer | Jul 20, 2013 3:33:02 PM

Trolls say mean things if you tie your shoe. It is an indication of exactly nothing except the troll's own viciousness.

Posted by: Bruce Boyden | Jul 20, 2013 3:41:00 PM

Everyone was caught up in the moment when the verdict was given. Now people have had time to think it over and give more rational responses.

Posted by: James Braxton | Jul 20, 2013 5:31:26 PM

I don't want my previous comment to detract from the fact that I think it is very admirable of you to say that you were wrong previously. For what it's worth from an anonymous internet commentator.

But I think it highlights the fact that many highly informed and intelligent people (like you) have reacted similarly to a verdict that seems to have been not only a defensible result but the only defensible result based on the evidence. This seems quite literally deranged. It seems like many, many people are simply ignoring the reality of the situation.

I certainly understand some of the reasons people are unable to see the facts. It is a true tragedy that Trayvon Martin is dead. I can't imagine the pain his family, friends and community feel over the senseless killing of their son, friend, and neighbor. He did not deserve to die, irrespective of whether he started the altercation or had the upper hand at Zimmerman shot him. And his death raises many emotions based on peoples' personal experiences, experiences that I have largely not shared.

But that does not change the fact that the verdict was the correct one based on the evidence. And it is disturbing to see otherwise well-meaning, rational, and intelligent people say they are "deeply disturbed" by a verdict that they, in fact, believe was the legally proper one.

Posted by: JJB | Jul 20, 2013 8:53:59 PM

Your honesty, and willingness to admit error, is refreshing. But you seem to be sensitive to the adjectives commenters used to respond to your post. But you used similar adjectives about the trial, calling it "troubling" "smells bad," and that you were "disappointed." You also intimated that the prosecution may have thrown the case. Given that context, the responses seem like fair give and take.

Posted by: lurkinglawprof | Jul 20, 2013 9:13:51 PM

Tamar,

"Based on the evidence presented." Does that mean you still think the case was winnable, absent the egregious prosecutorial botching of it?

Posted by: Kevin Jon Heller | Jul 20, 2013 9:50:27 PM

Per the 9.13 comment, words like "appalling" don't seem quite the same as "troubling." Nor, does "disappointed" sound quite like "shocked."

Posted by: Joe | Jul 21, 2013 12:54:07 AM

Tamar, I am so sorry that people were so brutal. Under no circumstances did you deserve that treatment. I enjoy reading your thoughtful reflections and hope you will keep posting - just don't read the comments (I don't).

Posted by: Lisa McElroy | Jul 21, 2013 7:52:16 AM

Joe, other than one comment that used the word "deranged," I don't think anyone said anything about Tamar that approaches suggesting that prosecutors intentionally through a case, or that a person for whom guilt hasn't been proven should nevertheless be locked in jail for 20 years. If you make such inflammatory statements, being upset that someone says they are shocked, horrified, etc., by your statements is hardly cricket.

Posted by: lurkinglawprof | Jul 21, 2013 11:03:20 AM

"my years of defending young men of color who are regularly screwed by a system of justice that is deeply flawed." If Zimmerman had been convicted, you would have had another young man of color screwed by a flawed system, ie Zimmerman.

Posted by: lurkinglawprof | Jul 21, 2013 11:06:23 AM

Darryl -- thanks so much for your eloquent comment. I am grateful that you contributed to the dialogue.

AGR: I also appreciate your continued willingness to enter the fray here and for your insights (particularly this: "Of course we will never know, but had the prosecution constructed a different (effective) narrative around the events of that tragic evening, this conversation would be different. The notion that there could only have been one answer --acquittal-- and anything else would have been "appalling" or "deranged" would not have such currency for reasonable people.")

Eric, Bruce, James, Lisa -- thanks for your support.

Kevin: please see AGR's comment above.

Posted by: Tamar Birckhead | Jul 21, 2013 11:39:40 AM

It may be that many of the reactions to the verdict are more properly directed to the state of the law. After all, it seems that what happened here was that a poorly trained and effectively unsupervised quasi-vigilante, armed with a concealed weapon, decided to tail a young man of color based on the flimsiest of suspicions. A police dispatcher advised Zimmerman to stop following Martin, but Zimmerman chose to disregard that advice, perhaps emboldened by the knowledge that he was armed. When Zimmerman's unsanctioned surveillance of Martin produced a confrontation, it quickly turned deadly, as is frequently the case when firearms are present. All this was apparently legal under Florida law, which entitles most individuals to obtain a permit authorizing them to carry concealed firearms without anything approaching the kind of rigorous training and supervision required of police, permits these untrained individuals to engage in this type of unwarranted surveillance of others, and imposes no obligation on such individuals to attempt to retreat or otherwise avoid the need to use deadly force. It seems obvious to me that what we need is laws in Florida that reduce the likelihood of this kind of fatal confrontation, rather than complaining about the way that this particular case was tried.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 21, 2013 12:21:23 PM

lurkinglawprof, the "twenty year" reference was not in the original comment I responded to. I specifically dealt with adjective use and comparing the two, there is a different in tone.

"You also intimated that the prosecution may have thrown the case."

I did not respond to this part of your comment. My reply was to the different nature of the adjectives -- words like "appalling" and so forth. As to the prosecution, in fact, that was something several people wondered about, noting "intimating" is something of a hedge word. It is a tad naive really to be "appalled" at the suggestion that the prosecution might at times not go all out to prosecute.

Posted by: Joe | Jul 21, 2013 12:30:12 PM


A few days ago several of you were using the Constitution as a coaster under your sweating glasses of chilled chardonnay, even though you’re in a line of work that calls on you to defend it even when, especially when, it protects unpopular acts and unpopular people.
Prof. Birckhead admitted she was wrong, albeit with a hedge in her headline – “Up to a point.” How, then, are you any different from what you accuse Zimmerman of being? You say he rushed to judgment, then you did the same.
I invite you to learn about this case and a lot more at Jeralyn Merritt’s blog, talkleft.com, which is a liberal’s take on politics and justice. She was one of the lead lawyers defending Timothy McVeigh. That indicates that she views Constitution as sacred, and she believes it is harmed by the kind of uninformed and ill-informed, emotional venting that has been taking place on this blog.
Merritt, with a bit of crowd sourcing, went over every bit of testimony and evidence and put it in cool-headed context. She does, however, offer opinion and analysis: she believes the Florida justice system was commandeered by some lawyers and PR people (who have potential financial gain) working with the Martin family to force a prosecution that already had been declined for the very same reasons a jury ultimately found in reaching its verdict.
The kind of thinking, the kind of talk, that took place here by the legal profession’s intelligentsia, criminal law’s cognoscenti, is the same kind that over many years led to innocent black men being lynched. When a white woman was raped, or claimed to have been, often the nearest and most convenient black man was strung up to protect her honor. How does that differ from Prof. Birckhead’s initial desire, which can’t be put back in the toothpaste tube, that Zimmerman should have been found guilty because she feels it, as the mother of a teenager, even if it means re-tooling the prosecution to find another way to skin the cat. (BTW, I can assure you that when your teen reaches his or her late 20s, you would freak out just as much if you believed they were being prosecuted for something you were certain they didn’t do. I expect Zimmerman’s mother felt that way.)
None of us can know what happened that night. Some of what has been argued here is based on nothing more than surmise. I understand the concern. So did the ACLU. Its executive director issued a news release on July 14 saying the DOJ should “thoroughly examine whether the Martin shooting was a federal civil rights violation or hate crime.”
Ah, but four days later the ACLU wrote a letter to AG Holder, saying that even though the Supreme Court permits such a prosecution, the ACLU believes it would be double jeopardy to do so for “charges arising from the same transaction. A jury found Zimmerman not guilty, and that should be the end of the criminal case.”
It seems the ACLU had a “Birckhead moment.” That is a good thing……but for the fact that it should not have been necessary.
I’ll offer my hunch, or surmise: After Holder got that second letter from the ACLU he told Obama about it, and reminded the boss that the FBI and others had already looked into Zimmerman and found nothing, and further digging likely won’t turn up anything more. But if we dig too much, he might have added, we could possibly find a violation of Zimmerman’s rights.
So the day after that, Obama got out in front of the issue and delivered his great, off-the-cuff speech. He knows he can’t deliver what you and the Martins’ lawyers and PR people and Sharpton and thousands of people in the streets are now expecting. So he gave you that inspiring speech, which has the additional effect of distracting from and helping to blunt the inevitable realization for one and all that the feds are not going to get Zimmerman.
Unwittingly, you are weakening the movement underway to put an end systemic problems with race in our justice system. Jeralyn Merritt says that, and tells us to “Leave George Zimmerman out of this.”
As a liberal myself, and after following Merritt’s work on this case, I have been taken aback recently by the ill-informed declarations and exhortations from leaders and pundits and others for whom I have great respect. I’m re-calculating on some of them a bit now, because they did what you have done: led a lynch mob.
Shame on you. The Constitution, African-Americans, all of us deserve better.

Posted by: SayWhatNow | Jul 21, 2013 1:04:08 PM

"Prof. Birckhead admitted she was wrong, albeit with a hedge in her headline – “Up to a point.” How, then, are you any different from what you accuse Zimmerman of being? You say he rushed to judgment, then you did the same."

Answer: Prof. Birckhead didn't kill anyone.

Posted by: Jack Chin | Jul 21, 2013 1:17:06 PM

I'd say nice try, Jack, but your comment doesn't merit that. She didn't kill anyone? Is that the best you've got?
She wanted a man put in prison for a long time, maybe for the rest of his life, in a situation in which it has not and likely cannot be proved guilty beyond a reasonable doubt -- but in which she had passionate, visceral feelings.
Now if you care to split hairs, for some people life in prison is worse than death. And, btw, Zimmerman may end up dead at the hands of a mob, or an individual acting for one. Some of what I've read here is part and parcel of a mob mentality. So if you want to play with logic, connect the dots in this response.

Posted by: SayWhatNow | Jul 21, 2013 1:32:20 PM

There's a big difference between talking and doing. There should be much more freedom for the former than the latter. Zimmerman's critics outlined their reasons, right or wrong, but at least those in the blogosphere, took no action, so they are not like Zimmerman in the least. In fact, they are the opposite of Zimmerman. Note that I am not saying Zimmerman was guilty, or could or should have been convicted or charged.

Posted by: Jack Chin | Jul 21, 2013 1:58:03 PM

Sorry if I wrote at greater length than you care to read. One of my main points is that people who should know better, and who are leaders in thought, have been trading on their professional bona fides to espouse personal feelings that are not supported by the facts we can know. They are expressing personal biases under the guise, intended or not, of professional disinterest.That filters out and down with more direct impact than, say, the flutter of a butterfly’s wings on one hemisphere has on wind patterns in another. What if, like other law professors have, she had been invited onto a TV talk fest and said what she wrote here? It is this kind of “talking” that can lead others to “doing.” Though not likely, it is not impossible that what appears on this blog could find its way into the mainstream of discourse. So there's not a "big difference" in the two. In the creation of a mob, it is a difference without a distinction.

Posted by: SawWhatNow | Jul 21, 2013 3:28:39 PM

"In fact, from a pedagogical point of view, the thread and this postscript would provide a valuable teaching moment for law students to reflect upon." Yes. The lesson is think before you speak, and think longer and harder before you write something on a public blog.

Posted by: JA | Jul 21, 2013 4:19:42 PM

Tamar Birchead's first responsibility was to Reason, to rationality, to fairness, to stepping back and saying "whoa. there an awful lot of emotion here, times to step back and check the facts, emotion is no means of judging fact or truth"
Tamar Brichead was incapable of doing that and still seems incapable of responding in anything other than a defensive manner. It's not hard to guess that Tamar Birchead is really unhappy to realize she's wrong.
As such, quite simply her judgment, impartiality, fairness are wanting, even lousy. There's no defense for someone who should know better. In a real sense she showed us a lack of decency by being part of the lynch mob. Mea culpas after the fact don't absolve her. She didn't want to know the facts/

Posted by: Leaada47 | Jul 21, 2013 5:23:09 PM

I’m sorry to continue what seem to be a quickly degrading thread, but the post by Larry Rosenthal, Chapman law school, shortly before my original post, still stands in its naked, abject ignorance. Prof. Birckhead willingly went to the woodshed when she realized she’d made a huge mistake. How about you, Larry? I expect you won't go to the record, much less the woodshed -- at least willingly.
Let’s not bother with your flowery talk about an “unsupervised quasi-vigilante” and his “flimsiest of suspicions” and the rest of your literary flight. Let’s look at your most basic leap, the one on which you base your post: that Zimmerman “chose to disregard” the dispatcher’s advice to stop following Martin.
If you dare look behind your assumption you will find the facts and evidence don't support it, so you bit on an urban myth. What has happened to the primary mission of legal education, removing the mush-element from our thinking? Please ask Mr. Google for Jeffrey Toobin’s Cliff Notes on the dispatcher's utterances at The New Yorker online, or check in with the old journalist Bob Somersby at The Daily Howler. (That would be my professional area, btw.)
It is just your kind of foolishness, under the banner of “Larry Rosenthal, Chapman University School of Law” that I’m talking about in my posts here. You got tenure yet, Larry? You need it if this is what you’re about; otherwise, you'd best study up for being an insurance adjuster. Get back to us on the needs for Florida law when you have reasonable command of the case at hand.
Are there any grownups teaching law these days?

Posted by: SayWhatNow | Jul 21, 2013 9:18:26 PM

Perhaps I should add a few words in light of SayWhatNow's comment. It is true that I have drawn what I regard as a reasonable inference that Zimmerman did not heed the dispatcher's efforts to dissuade him from following Martin. It is also true that others might not choose to draw that inference. To the extent that my earlier comment does not make clear that it rests on an inference, SayWhatNow properly takes me to task. My comment, however, endeavored to focus on the state of the law rather than the particulars of the Zimmerman trial. In that respect, the important point is that under Florida law, even if, as I infer, Zimmerman chose to disregard an admonition from the dispatcher, his conduct still would have been lawful. This is among the reasons that I regard the interaction between Florida's concealed-carry law, the limited scope of its stalking statute, and its expansive self-defense laws, as creating a legal regime that is unacceptably likely, in my view, to produce violent confrontations involving the use of deadly force.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 22, 2013 12:22:55 AM

I thought I'd add another, non-anonymous, post to the thread. I think I agree with Prof. Rosenthal on this one in terms of the logic of the case and the law, and with Prof. Birkhead in terms of the emotion of it. In this case, the law is 'a ass,' in that it appears to permit individuals to act as vigilantes. The law does not punish Zimmerman for his killing of an unarmed person who posed him no threat when Zimmerman first directed his attention towards Martin. What is disappointing is that Zimmerman does not have to take, nor (if his brother's reaction is any guide to his) seems inclined to take moral responsibility for what is, whichever way you cut it, a horrible act: the killing of an innocent, and a minor at that.

Many of us are left to wonder whether what drew Zimmerman's suspicions to Martin in the first place were race: and it appears that Zimmerman may have profiled Martin. If so, Zimmerman engaged in at best a reckless act (following and engaging Martin) for morally obnoxious reasons (racism). If he did not act for morally obnoxious reasons, he nonetheless acted morally recklessly. He ought to be on the hook for his moral recklessness; that he is not in fact legally on the hook does not make him morally less reckless, and worthy of criticism.

For what it's worth, some emotional reactions (anger at the—admittedly perceived—lack of regret, a sense of injustice at the death of Martin by a self-appointed avenger) are rational, in the sense of being a proportionate response to reasons. I respect and congratulate Prof. Birkhead for attempting to make rational sense of this rationally justified emotional response. It is an essential part of working out how properly to respond to the Zimmerman case and to the law that governs it. And I also think that blog posts are an appropriate venue for thinking about this. And I don't happen to think that prawfsblawg, whatever its other merits, is a blog that students should read for edification about the finer points of law. But that does not mean that posts like Prof. Birkhead's or Prof. Rosenthal's (or Prof. Chin's and so on) are less worthy of interest and respect. So well done to Prof. Birkhead for being willing to think aloud in public; well done to the Profs and others who have been willing to add their names and identities to the posts, and long live criticism of the ideas and not the person (the contrary has been identified as a failure of rational argument for two millenia now).

Posted by: Eric Miller | Jul 22, 2013 11:26:52 AM

1. I think Prof Birkhead's willingness to reexamine the evidence and then post about her change in mind is admirable and should be applauded, not because of this case specifically, but because it was the right thing to do and it is behavior not shown often enough in our society, one that exists across the political spectrum. I do not have any of the reservations expressed in some of the other comments about the professor's prior post.

2. I was not going to comment at all until seeing Professor Miller's comment. I did not pay much attention to this case when it first erupted last year but had the opportunity to listen and/or read much of the trial testimony which prompted me to go back and look at the earlier coverage of the case.

I agree with Miller that "some emotional reactions are rational". Here's mine; I was shocked at the absolute lack of evidence to support the charge brought against GZ (perhaps, if Fl law allows, an involuntary manslaughter charge might have been justified) and shocked at the lack of evidence regarding any racial animus.

My emotion is directed at the race hucksters and their associates in the media who saw the evidence shift away from their initial narrative:
- a white racist vigilante living in an exclusive gated community who hunted down a black teen and was now going to use an NRA-inspired law (SYG) to defend himself.
To
- a self identified Hispanic, registered Democrat and Obama supporter, who protested the beating of a black homeless man by the son of the white police chief, living in a multi-racial crime-ridden lower middle class community and where his neighbors testified that regardless of race, GZ helped them. (And deceptively edited tapes to make GZ appear a racist and inacurate, but still repeated claims, that GZ only mentioned the race of black suspects, do not constitute facts - in fact, the only evidence of profiling was TM's mistaken characterization of GZ as a "crazy ass cracker")-

But they still refuse to change their narrative. They carry on like nothing has changed (they are the bizarro Prof Birkheads if you will). Their selfish pursuit of an agenda to encourage racial divisiveness and hatred is a disgrace and an outrage and deserves to be condemned. The deliberate and continued spreading of a false narrative makes it even harder to address racial issues in our society but, then again, that may be their agenda.

I think GZ made some bad choices that night (see my note on potential supportable charges above)and would like to see he and his brother express themselves differently. But the man has been pilloried for over a year as a racist murderer and it is apparently not going to let up so I will cut him some slack. And do not forget that the trial evidence actually indicates that it was TM who doubled back after GZ lost sight of him, who threw the first punch and was on top of GZ when the shot was fired - it was why the self-defense claim prevailed and why SYG was not a part of this case. A lot of bad choices were made that night.

Posted by: Mark | Jul 22, 2013 3:54:41 PM

Sorry for the erroneous spelling of Prof Birckhead's name.

Posted by: Mark | Jul 22, 2013 3:56:33 PM

If the facts were remotely close to the versions that Larry Rosenthal and Eric Miller now offer us, even a rookie prosecutor would have won the trial handily. But any prosecutor, even the most seasoned, who tried to use the Rosenthal/Miller version as a template in the real trial would have failed even more miserably than de la Rionda did.

That's what's so fascinating about all the threads here about the trial. Tamar revisted the evidence in light of a verdict that upset her and she has been open and even courageous about that re-examination. Other law professors have doubled-down on factual accounts that have never existed, as if you can win a verdict with any fanciful version of the facts that suits your personal emotions about larger social issues.

It's important to note that none of this needed to be new news. The facts we have today are the same ones that led the initial prosecutors not to charge and that led Angela Corey to deliberately avoid a grand jury and to submit a probable cause affidavit that was so skewed. That is why, contra Professor Chin, the charges were not a "victory" for the legal system. They were a failure of the system.

Posted by: John Steele | Jul 22, 2013 3:58:48 PM

Black parents' legitimate concern about the lives of our sons--whom we know are devalued in this society-- is not racial hucksterism.

Posted by: AGR | Jul 22, 2013 4:40:55 PM

Thanks to Eric Miller for introducing the thread of moral reasoning into the discussion. It's worth exercising the various forms of rationality with which we can approach thinking, especially when we're in a tight spot or faced with complexity for which one form of reasoning is inadequate. In addition to, say, legal reasoning, moral reasoning seems appropriate in trying to make sense of this case, its outcome -- and perhaps most particularly, of the killing of Trayvon Martin itself and dilemmas facing parents and children and those who love them in this country. Moral reasoning could take us a bold step beyond, or in parallel with, critical race/legal studies.

Posted by: Monica Eppinger | Jul 22, 2013 4:54:30 PM

Being "non-anonymous" does not make Eric Miller right. It does, in his mind, make him righteous. Whatever.

Eric Miller repeats a few of the usual, factually wrong assertions about the events of that evening. He is relying on "facts" he saw in the news or in punditry, not at trial, that were wrong and wrongly repeated, over and over, in news and punditry. The jury had the advantage of looking at all of the testimony and evidence and paying attention. (Not that doing the same is beyond capability and possibility for Prof. Miller. But that would be a bit of work, with no sugar-burst of validation for him upon completion of the task.)

The non-anonymous Prof. Miller is lazy on this, as is Larry Rosenthal, and as was Prof. Birckhead until she was shamed into looking and shocked by what she learned -- that she'd been wrong.


For example, Miller speaks of Zimmerman "killing of an unarmed person who posed him no threat when Zimmerman first directed his attention towards Martin." What does that prove, other than that Miller is trying some misdirection? It is later in the series of events that night that Zimmerman said Martin posed a threat to him, with testimony from eye- and ear- witnesses that was strong enough show that Zimmerman's version of events could be accurate. That means not just reasonable doubt; it could have happened, much as that hurts your comfort zone.


The next example is yet another common mistake, one I also held as gospel some months ago. He calls Zimmerman a "self-appointed avenger." Go look at the documents. The homeowners association voted to have Zimmerman as captain of their neighborhood watch. (A cop suggested he get a gun for his patrols when a loose pitbull roamed the neighborhood and Zimmerman had gotten some Mace -- pitbulls aren't deterred by it, the cop told him.) They'd had a rash of burglaries. Zimmerman put a stronger lock on the sliding door of a woman who had been at home and hid in a closet with her infant when two men entered her home and burglarized it. They were seen fleeing. Both were black. There is a difference between profiling and using one's common sense. Some other burglars had been spotted, and they were black. Home values in the neighborhood had dropped by more than 100% in a short few years when the economy went bad, and some trouble moved into the rental units. Some trouble also was coming through the gate from another area nearby. The homeowners were scared. And while this was a "gated community," they were not gilded.


Prof. Miller writes that "no matter how you cut it", this was "the killing of an innocent, a minor at that." Again, testimony and evidence indicated that, while Zimmerman initially followed Martin, it was Martin who (probably doubled back and) confronted Zimmerman.

On that "innocence" argument: There were some important reasons, Prof. Miller, why there was no parade of parents, friends, coaches and others to the witness stand to humanize Martin. Humanizing the victim is usually done in serious cases of criminal violence, unless it might prove problematic. We heard from only Ms. Jeantel, whom Martin had re-friended as a phone buddy just weeks before these events. We heard some very careful testimony from TM's mother, as if there was a shut door on the witness stand, one that the prosecutor would not open for probably good reason. You can't, here, use "innocence" in a vacuum.
While the jury couldn't know this, TM apparently had become, among other problematic activities, quite adept at fighting and was proud of it. You can look it up. That would be pertinent evidence here in any civil matters, to give some context to the innocence in a vacuum you offer.


Prof. Miller brings the concept of moral responsibility into this. I think that's commendable. While criminal law rightly is applied morality, a criminal trial should not be turned into a morality play, though that seems to be what Prof. Miller wants -- as long as he gets to write the script.

I believe it is arguable that, in his post here as a professor of criminal law, Miller is being both morally and ethically irresponsible. I'd give him the same advice I gave Larry Rosenthal: go look at the evidence and the documents, and get back to us. I commend you to Jeralyn Merritt's talkleft.com. She's a real criminal defense lawyer and has been around a lot of blocks more than a few times, and has a big place in her heart and mind for the Constitution.


Jeralyn nailed folks like Profs. Miller and Rosenthal et al. again today, saying that people "who are willing to throw the Constitution out the window because they don't like a particular defendant, or because of their moral or political objections to what they subjectively believe was going through his mind, or because they like a particular victim, can be called a lot of things. Progressive is not one of them."

Meanwhile, I'm thinking about designing a new course to teach: Critical Theory of Clay Feet.

Posted by: SayWhatNow | Jul 22, 2013 7:20:15 PM

A few comments:

1. I don't think there is any need to issue a "mea culpa", scrape your ego off the ground, or otherwise apologize. You said something that, on your further reflection, proved to be erroneous. Big whoop. Most of us (including me) do that all the time.

2. It's cool that you reflected on your position rather than, as most of us do, get really defensive, dig deeper into your original position, and then go on the attack.

3. BUT, I think it's rather unfair to describe the comments on the prior thread as "vicious." This comment thread unquestionably has some ridiculous ad hominems, but the majority of the comments on the other thread are fairly measured. On that thread, I used words like "appalled," "shocked," and so on, but I don't think using those words in response to an outrageous assertion reflects an ad hominem. If, while you were a PD, the prosecutor told you that he or she believed that your defendant should go to jail even though he didn't think your client was guilty BARD, I suspect you would be shocked, disgusted, outraged, and so on. Those feelings, I think, would not relate to a personal disgust regarding the prosecutor (i.e. an ad hominem), but would instead relate to the prosecutor's suggestion itself.

In other words, those of us who were appalled etc. at the suggestion that you were previously OK with Zimmerman going to jail, notwithstanding the absence of any decent proof of his guilt, were making a comment about the incompatibility of your statement with our views of due process and other criminal justice principles, not attacking you personally. (The comments on this post obviously have gone in a different direction.)

4. Speaking on a subject, on a professional blog, on a topic that is sure to engender significant disagreement (whatever position you take), takes some guts, and your prior post and this post reflect your careful engagement with the issues, for which you deserve credit. I think your posts and comments have advanced the discussion, and you wouldn't have generated more comments in two posts than 99% of prawfsbloggers generate in a month if you weren't someone worth responding to. And your post did not reflect any deliberate race-baiting like that done by Benjamin Jealous, but instead highlights the emotions raised by this case -- even someone who normally serves defendants feels conflicted about this case. Your sharing of these feelings forces those of us who believe this case was a slam-dunk to give serious thought to the broader issues that the public associates with this case. Although I'm greatly relieved that you reversed course, reading a PD make the remarks you made definitely encouraged me to think harder about the trial.

5. Those who slam Prof. Birckhead for being a bit defensive in this post should understand that it's a bit tough to see yourself getting slammed in print or online, and it's hard not to be a little defensive when that happens. Presumably, those slamming Prof. Birckhead already recognize that it's rather uncomfortable to know that people think poorly of you for your remarks, since they have chosen to hide behind the cloak of anonymity.

Posted by: andy | Jul 23, 2013 5:22:29 AM

Andy makes good points. As with TB's (or anyone's thread really) had I had time, I would have earlier monitored the threads a little more closely and deleted and banned the vitriolic anon comments. As regular readers know, if comments and commenters disappear, it's a safe bet that I'm the jerk who shut you down and out, not the author of the post.

Posted by: Dan Markel | Jul 23, 2013 11:46:23 AM

Which is worse, Andy, knowing the identity of a person making comments -- which stand or fall on their own -- or, a law professor no less, opining substantively without having considered the facts of a case that is now a landmark, for the wrong reasons, in our history? (In part because of their willing assent as validation to all of us who have gotten it wrong.)

I point again today to Jeralyn Merrit's talkleft.com, where she goes through details of the horrible history of racism in our "justice" system, such as laws and enforcement of them that created an alternative form of slavery that operated into the 1940s, e.g. prison systems letting modern day equivalents of plantations enjoy the free labor of black prisoners. Chilling to read.

She also links to a survey that is instructive about the Martin/Zimmerman "debate." I don't know whether she developed it. The source can't be determined. But she is, in effect, signing off on its accuracy by recommending it. It serves as a Cliffs Notes look at the misinformation and disinformation out there on this matter, including some that was applied in posts here by those teaching law students about our justice system:
http://www.dlas.org/questions-zimmerman-verdict/

Posted by: SayWhatNow | Jul 23, 2013 12:10:26 PM

SayWhatNow,

I share your outrage at all the misinformation being spewed out there. I just think Prof. Birckhead is a strange target for the vitriol, since unlike the many talking heads out there, she actually was willing to discuss the issues, look at the facts, and change her view.

The problem, it seems, are the idiots on TV and the various op-ed writers who keep saying things like "GZ followed and taunted TM and got away," or "TM was 100% blameless," or "the jury held that a black life is meaningless," and so on. These persons not only are fanning the flames, but are the ones who set the fire to begin with. Everyone is worse off for their despicable acts, and I take no issue with any criticism of them. I just don't understand why so many commenters on this post are piling on here, seeing that the author actually changed her mind. Direct the vitriol towards persons who unabashedly continue to say things like the jury established open hunting season on black children.

Posted by: andy | Jul 23, 2013 3:44:23 PM

TalkLeft and the misstatements outside of the trial do not change the fact that an effective prosecution on a different charge may have yielded a better result.

Posted by: AGR | Jul 23, 2013 5:19:33 PM

Let us stipulate to certain facts apparently proven at trial just so we can get to the essential question that most defenders conveniently ignore (even as you are expert at changing facts in class to get to a hidden issue). I stipulate that Trayvon, being in fear of an armed man following him, turned on his stalker. The American ethos supports that right, let's just be real. I stipulate that Trayvon was also kicking Zimmerman's ass and even that Trayvon struck the first blow. Would those who are satisfied with the trial's outcome, and whose good faith I willingly assume, entirely exonerate an armed Black man from criminal or, apparently even civil responsibility for stalking a white child if that white child, in fear of his safety, turned on the Black man who subsequently shot the white child?

Are any of the facts in the hypothetical unsupported by the known evidence? All those who defend the outcome know the objection but determine to ignore it. The objection is to the racially motivated stalking, which you know in your heart of hearts is what happened. It is to the objection that racial profiling leads to more interactions with the police, a higher chance of violence involving the profiled, a higher incidence of intrusion and finally a higher incidence of whatever other negative consequences come from all of the above. You want intellectual rigor, here it is. Your failure to address what you must know as the real issue is indicative of intellectual cowardice. So excuse me for labeling the messenger, its really nothing personal. But you are all a buncha cowards.

Posted by: Darryll Jones | Jul 23, 2013 7:08:27 PM

Oh, AGR, I feel for you in your newfound solitariness here. You have just managed to make this small room look big. (Just in case: that’s not a compliment.)

You say, blah blah blah “may have yielded a better result.”
What exactly is this “better result” you speak of? (That’s rhetorical, though I invite you to respond in great detail. See above: adherence to the law and Constitution has been our best bulwark against the racism in our justice system. Covering it with a tarp for a while so you can make some points just might lead to part of it never again being visible in the daylight -- so that when you have an authentic reason for invoking it, it's nowhere to be found.)

When you write that “TalkLeft and the misstatements outside of the trial do not change the fact that……” there could be a "better result", what you’re really saying, to those in this now probably more informed crowd than the one you first addressed, and in which you initially found succor, is that you are talking about “outside,” not of the trial etc., but “outside” of what you’re willing to read and to consider. As you see it, everything should be as you want it.

To the extent you get it your way in this, you are ultimately losing your way, and forcing that misadventure on the rest of us. That irony awaits you, I suppose. We go backwards rather than forward in what some of us hope is a march to an honest, fair and equal society in which blacks are not penalized in our justice system simply because of the color of their skin.

But, hey, if the prosecution had just done this or that, Zimmerman would now be somebody’s prostrate bitch in a prison cell, for the rest of his life. Whether he deserves it, or not. What matters is whether you feel good. Right?

Posted by: SayWhatNow | Jul 24, 2013 8:41:26 PM

Have the last word here, Mr/Ms SayWhatNow. Please...

Posted by: AGR | Jul 25, 2013 7:47:38 AM

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