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Tuesday, July 16, 2013

A Not Quite Post-Script on Zimmerman, etc.

Interesting exchange I though I'd share.  I just rec'd an email from a stranger (to me):

Prof Markel,
You write here -  - that "I fear that if the races had been turned around, we might have a different verdict."

Why, given the evidence presented, the law, the jury instructions, etc., do you have this fear? Is there a scintilla of evidence that the jury, in its deliberations, was influenced by considerations of race in any way?

My answer:
Thanks for writing (respectfully!).
My sense is that there likely were some subtle racial dynamics as to what prompted GZ's suspicions. I doubt that if TM had been white, GZ would have bothered to call. If GZ had been black and shot a TM who were white, I could see the possibility of conviction going up, even if the same evidence were there. I regret that's the world in which I harbor that concern.

Still, in this case, I think it would be a serious injustice to alter the verdict just because of the risk that injustice elsewhere could erupt. My point, modestly, was that one can't fix other injustices by doing an injustice in this case.

My correspondent wrote back:

Thanks for your quick -- and equally respectful -- response.

1) Re: GZ being suspicious if TM had been white: This is a bedrock assumption -- I don't think there's much evidence on the issue one way or the other -- which I don't share, but let's assume it anyway.

2)  The jury seemed to be meticulous (14 hours of deliberation, etc.).  According to the juror interviewed on CNN, at first, 3 jurors wanted to convict GZ "of something."  But, based on the evidence presented and the "options we were given," acquittal was the only decision, in the end. I very much doubt that this jury would have acted any differently had TM been white/GZ been black.  Also bear in mind that white guilt, as well as white racism, can play a role.  But this is just my opinion.

At this point, it seems, we are in the realm of speculation and sociology, so I don't have much more to add than my first response. But I thought it was an interesting exchange, and I'm sure some of our readers would have more vigorous responses and reactions.

Update: I have since learned (h/t to Adler on FB and Bernstein below) that I may have been leaping to judgments re: my speculation about Zimmerman's reticence to call in suspicious non-blacks. He has a history of calling in a range of people, including fellow Hispanics, and he's also made calls, from what I understand, designed to ensure the wellbeing of young black children. I'm grateful for the information--obviously, I can't verify it myself, but if it's true, the information seems relevant about what kinds of speculations are warranted in race-switching scenarios.

Posted by Administrators on July 16, 2013 at 11:37 PM in Criminal Law, Culture, Current Affairs, Dan Markel | Permalink


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FYI, this post (http://www.thefacultylounge.org/2013/07/what-do-zimmermans-calls-to-police-show-about-his-view-of-black-men-.html) was partly inspired by the OP and comments on it.

Posted by: Michelle Meyer | Jul 19, 2013 4:42:17 PM

The cases discussed by Mr. Rasmusen are interesting, but none of them really call to mind what occurred in the Zimmerman case as such.

The race question is something notable, including the continual talk of an "all white" jury, given a Hispanic woman as on it. At some point, that gets to be sort of lazy.

Posted by: Joe | Jul 18, 2013 3:13:28 PM

It's worth noting that if Zimmerman were my age(54), he would have been categorized as "colored" by the state of Virginia (1/8 was way more than enough) and would have attended the colored school, not the white one. Also, his parents would have both been imprisoned for the felony of miscegenation.

Posted by: Eric Rasmusen | Jul 18, 2013 2:55:55 PM

At http://rasmusen.dreamhosters.com/b/2013/07/would-zimmerman-have-been-acquitted-if-he-were-black-sure-look-at-examples/ I've listed a few black kills nonblack self-defense cases, which helps think about the racial dynamics, e.g.

http://www.news-press.com/article/20100916/CRIME/9160375/Fort-Myers-killing-suspect-likely-off-hook (Black man shoots out of his window and kills a hispanic teenager. Charges dropped. )

Posted by: Eric Rasmusen | Jul 18, 2013 2:31:52 PM

That's a good catch, Michelle. I didn't really think about it when I wrote that GZ was white. So I can't say that I described him that way for any particular (conscious) reason. If I had to sort out why I (semi-concsiously?!) described him as white, I guess it may have to do with the media narrative, which has been to downplay GZ's hispanic roots.

Posted by: Luis E. Chiesa | Jul 18, 2013 10:58:52 AM

Pretty much exactly my thoughts. My one question for you, Luis: "Even if the jury inappropriately gave GZ’s account more weight than they should have simply because he’s white and the victim was black..." Is there some reason you're describing GZ as white instead of Hispanic?

Posted by: Michelle Meyer | Jul 18, 2013 10:24:05 AM

Some additional ruminations … One of my summer projects is writing a substantive criminal law casebook (I know…how un-scholarly of me, right?). I usually write it from home while I have the tv turned on in the background. During the last several weeks the TV was always tuned to the Zimmerman trial. I found it fascinating for many reasons. So fascinating that I decided to tweet about an aspect of the trial almost on a daily basis.

For example, after Jonathan Good (the neighbor who witnessed part of the scuffle) testified that TM was on top of GZ, I tweeted something along the lines of “reasonable doubt in GZ case growing stronger”. I also became somewhat obsessed with the obsession over whether GZ acted out of “ill-will, spite, or hatred”, which struck me (and still does) as totally irrelevant when defendant acts with intent to kill (that is, the “ill will” rhetoric should be relevant for depraved heart murder, but not for intent to kill murder…Florida law seems hopelessly confusing in this regard). In sum, I was engrossed by the trial and all of the issues it raised.

After following it closely, I tweeted what I thought the outcome should be. Not guilty. Why? As I put it, “I have no doubt that there was reasonable doubt” about self-defense. The prosecution simply failed to demonstrate what happened that night. There were too many holes in their theory to convict a man and put him in jail for several decades. I thought that convicting GZ would have been legally wrong, in the sense that the burden was clearly not met by the prosecution. And as a result, I thought that it would have been an injustice to convict him.

Then came the claims about how the verdict was unjust and frustrating and how it revealed all sorts of racial disparities in America. This was to be expected, of course. What really struck a chord with me, however, was reading Ekow’s piece in the NY Times. In addition to being a good friend, Ekow is one of the most thoughtful scholars I know. As usual, Ekow’s piece was well written, well informed and illuminating. I recommend the op-ed to anyone interested in the GZ case and in race and the criminal justice system. (you can find it here http://www.nytimes.com/2013/07/16/opinion/the-truth-about-trayvon.html?src=me&ref=general&_r=0 )

I agree with most of it. I think Ekow is right that there’s a good case to be made that reasonable doubt doesn’t mean the same thing when the defendant is black than when he is white. I also agree that the GZ case was infused with race every step of the way. I believe the initial refusal to arrest would not have taken place had the suspect-victim races been reversed. I also believe that GZ zeroed in on TM – at least in part – because of his race and what he was wearing. And I obviously agree that prisons are disproportionally (and unjustly) crowded by minorities in general and African-Americans in particular. I’m also in agreement that the SCOTUS should overrule Whren and closely scrutinize stops that may be the product of racial profiling. In sum, I agree with Ekow’s main point that the criminal justice system should stop proclaiming itself neutral to the racial disparities it so obviously creates and that legal doctrines should be modified to expressly take into account the racial dynamics that pervade our system of criminal law.

What I find more difficult to understand, however, is why Ekow (and other legal scholars) find the VERDICT in the GZ case “frustrating”. Even if reasonable doubt is not a “value free clinical term” as Ekow puts it, the only outcome that was compatible with the meaning of reasonable doubt was an acquittal. As a matter of fact, even after duly taking race into account, there WAS reasonable doubt in this case. And, even after duly taking race into account, the correct verdict was an acquittal. And this is not because I think that GZ didn’t act unlawfully. I actually think that it’s more likely than not that – at a minimum – he used excessive force or (at a minimum once more) culpably created the conditions of his own defense. I just find it difficult to see how anyone who watched the trial can say with a straight face that the prosecution disproved self-defense beyond a reasonable doubt. They simply didn’t, even when race is taken into account. And this judgment doesn’t change regardless of why the jury acquitted. Even if the jury inappropriately gave GZ’s account more weight than they should have simply because he’s white and the victim was black (I think that juror B37 may actually be guilty of this), that doesn’t change the correctness of the outcome. It would be the proverbial right deed for the wrong reason, but it would still be right.

Now, I’m fully aware that many African Americans (and Hispanics) are in jail because juries did not find reasonable doubt in circumstances that actually warranted a finding of reasonable doubt and, therefore, an acquittal. But it doesn’t follow that we should also convict people like GZ on the basis of a lower reasonable doubt standard because jails are full of people that have been convicted on that basis. Regardless of how unjust and racially biased our criminal justice system is, convicting a person with less proof than what the law requires simply because many others (mostly minorities) have been convicted on the basis of less proof than what the law demands strikes me as perverse. Two wrongs don’t make a right.

This doesn’t mean, of course, that the outcome of the GZ trial doesn’t reveal a lot about racial disparities in the criminal justice system. It does. It is important to question whether the outcome would have been the same had the defendant been white and the victim black. And I think that it may have been different. And that’s very, very disturbing. So the GZ acquittal should make us think deep and hard about these questions. In this macro sense, the verdict is frustrating. It’s frustrating because it may confirm that standards are applied differently depending on the race of the actors. I may be wrong, but I think that this is why Ekow is frustrated by the verdict. Nevertheless, in a very important sense the outcome was totally appropriate. If there is reasonable doubt, the defendant should be acquitted regardless of his race. If other defendants are convicted when there is reasonable doubt because of their race, that gives us reason to fight against such unjust convictions. It does not give us reason, however, to convict people like GZ.

Posted by: Luis E. Chiesa | Jul 18, 2013 10:13:29 AM

To me the more interesting racial hypothetical is what would have happened if the jury had been all black? Half black half white? Based on what appear to be stark differences in public opinion on this case among blacks and whites, it strikes me as likely that the outcome would have been different.

Posted by: AF | Jul 17, 2013 6:10:33 PM

Dan -- I'm interested to hear more about the castle doctrine. Its place as an exception to the general rule seems understandable to me, and as long as it's paired with a requirement that the force used be no more than reasonably necessary I don't think I would support abolishing it. Can you elaborate on your position?

Posted by: Griff | Jul 17, 2013 4:13:11 PM

Yes, Dan, I saw that right after I hit post.

"I object to Brando's statement that you're not entitled to have a view on race unless you study it for a living. That response is on the lines of "shut up, he explained," and it's not a constructive way for citizens to discuss openly this important issue."

You don't have to study it. But if you've never put in the work to understand something from an intellectual standpoint, shouldn't you at least acknowledge your ignorance?

I find that people are able to do that when, say, math is the subject of debate. But when race is the topic, people who haven't thought about race much or who haven't read relevant literature still enter the debate as though they are experts. They aren't. I'm fine with discussion. But if you discuss an issue that you're not well-versed in, I think it's reasonable to expect a person's words and opinions to match that lack of knowledge.

Posted by: Brando Simeo Starkey | Jul 17, 2013 4:12:29 PM

I object to Brando's statement that you're not entitled to have a view on race unless you study it for a living. That response is on the lines of "shut up, he explained," and it's not a constructive way for citizens to discuss openly this important issue.

Posted by: Litigator | Jul 17, 2013 3:17:50 PM

Btw, Brando, I mentioned in the post that the person who wrote me was a stranger to me, not a friend--never met or heard from him before so far as I know.

Ekow's second comment, btw, is well-taken. That's why I wrote that I think we're in the realm of speculation and suggestions and we're likely to find conflicting evidence that, from a legal perspective, won't get us too far once we're considering his case under a beyond a reasonable doubt standard. Needless to say, there is much work to be done on many fronts.

I'm not entirely facetious when I think we should move on and unite everybody behind the two following propositions: a universal duty to retreat as part of the necessity requirement (so no castle doctrine exception either) and sacking Angela Corey for her prosecutorial misconduct (failing to disclose possibly exculpatory information and then firing the whistleblower!). Who's in?

Posted by: Dan Markel | Jul 17, 2013 1:45:17 PM

Let me first note that my first post, written in haste, was both incorrect and even misleading. Read the wrong way, it even seems to imply that Zimmerman called the police about young, black men 150 times, which is clearly not true. (I wrote Dan asking for a chance to edit it but shall remember to be more deliberate before hitting return in future.)

What I do stand by and wish to reiterate is that the standard that without certainty, we cannot know that race played a role in this seems to bizarrely to apply to race in a way it applies to nothing else. Zimmerman called the police over 151 one times over the course of years. A remarkable number that by itself does not make him a bad person. He called for a wide, wide range of things. Cars he thought were suspicious or mis-parked. Open garage doors. Pot holes. Not being able to reach his sister on the phone. And very often, people he thought were suspicious. In short, Zimmerman was extremely prone to reporting anything he found suspicious.

As far as I have seen, and there may be things I have not seen, Zimmerman overwhelmingly (again, overwhelmingly) found young, black men suspicious. He also reported, on rare occasion, Hispanic men. To my knowledge, he never reported a white man, with the exception of once when that white man was with two other minorities.

Given that Zimmerman gave us something like an experimental set of things he finds suspicious, it is striking that in all the years, no white person ever raised his suspicion. No white boy ever ambled down the street on a cell phone. Maybe we will find that he reported one. I'm not sure it would change my core conclusion.

If your friend dated 7 blonds, and one brunette, you might comfortably say he has a type. Not that it is unimaginable that he would be attracted to someone else but that he has a type. Please do not rush to tell me these are different. I am well aware and topics of race are serious. But part of what shuts down these conversations is that too often the only options we collectively discuss is the virulent, evil racist or the perfectly race blind saint. This frustrates those of us who are well aware that there are many stages in between that infuse our reasoning and affect our lives. And one is further frustrated because no-one would say you cannot incontrovertibly prove your friend has a type. There is, to borrow from philosophy (Wittgenstein) an aspect blindness to our inability to point at race.

It is this history of phone calls, not the view that Zimmerman is an evil racist (along with a lifetime of having people read status, be it criminal or servant, into my skin color) that leads to seriously doubt that Zimmerman would have noticed a white Trayvon doing something as suspicious as walking down the street talking on the phone. (Or that the jury would have imagined the same young man as appropriately followed. Or not seen Zimmerman tracking him as an instigator... or... or... )

Posted by: Ekow N. Yankah | Jul 17, 2013 1:09:37 PM

Perhaps GZ's calls might be analyzed/compared with those of other volunteers for this gated community that I understand included residents of color to the extent of 24% of the community.

Posted by: Shag from Brookline | Jul 17, 2013 11:05:48 AM

"What we do know is that Zimmerman called the non-emergency number not just the handful that were admitted but over 150 times and in each of those phone calls the suspicious person he described was a black male."

This is false. First, just to clarify, in the vast majority of these calls he wasn't calling in suspicious people, I'm not sure that you meant to suggest otherwise. As for the falsity See, e.g., call on 6/27/2007 "2 Hispanics and 1 white male," and 6/24/2007, "Hispanic male wearing hat", 1/1/2010, "WM LSW BLK Button Downn Shirt" http://www.documentcloud.org/documents/327330-george-zimmerrman-911-call-history.html

Posted by: David Bernstein | Jul 17, 2013 8:26:38 AM

For what it is worth, I think many people have struggled with this question. But I do think the reply, we can never know is both much too easy and ask for a certainty that defeats conversations on this topic. What we do know is that Zimmerman called the non-emergency number not just the handful that were admitted but over 150 times and in each of those phone calls the suspicious person he described was a black male. I have written elsewhere that "reasonable doubt is not colorblind." http://www.nytimes.com/2013/07/16/opinion/the-truth-about-trayvon.html?src=me&ref=general I think there are few places where we would strive so hard to maintain our uncertainty as African-Americans consistently see in race relations.

Posted by: Ekow N. Yankah | Jul 17, 2013 7:17:27 AM

Is your friend well-versed on issues of race? One of the problems with discussing race in this country is that most people don't think/read about race but believe their opinions are nonetheless valuable. People are much less likely to be ignorant but discuss, say, biology.

I ask this because the following statement -- "I don't think there's much evidence on the issue one way or the other -- which I don't share, but let's assume it anyway" -- is so absurd as to be risible.

Posted by: Brando Simeo Starkey | Jul 17, 2013 12:57:26 AM

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