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Thursday, July 04, 2013

A Zimmerman Acquittal: Michael Jackson, not Rodney King

After the killing of Trayvon Martin, I was disturbed that George Zimmerman was not arrested, and was glad that charges were brought and would be resolved in court.  I was wrong; I did not understand how weak the evidence was.   As the trial has progressed, no one, not one witness, testified to facts strongly indicating a felonious killing.  Instead, the prosecution evidence has been about Zimmerman's personality, character, and education, ambiguous statements of eye- and ear-witnesses, inconclusive forensic evidence, and a focus on trivial differences between various voluntary statements that Zimmerman made.  The state has not quite rested yet, and maybe they've saved the good evidence for last.  But in a jurisdiction where self defense must be disproved beyond a reasonable doubt, so far I have not seen enough evidence to warrant a conviction for anything.

One category of prosecution evidence is insinuations that Zimmerman was profiling, to suggest that Zimmerman might have been the aggressor.  

But if all of us have implicit bias, in and of itself, the fact that Zimmerman noticed the race of another person is not particularly probative.  And the testimony showed that on the night he was killed, Trayvon Martin used racial terms to describe Zimmerman, the more polite of which was "creepy ass cracker." Prosecutors should not be allowed to use one-way arguments which, when applicable to a defendant, are evidence of guilt, but if applicable to someone on the prosecution side, suddenly become irrelevant.  If thin evidence of racial atttitudes suggests that the person with those attitudes was an aggressor, then this category of evidence is a wash at best because it suggests that both were aggressors. 

The prosecution has also focused on the discrepancies among the several voluntary statements that Zimmerman made to the police.  But discrepancies are normal when someone recounts events which occurred under stress. (Recall the famous cross-examination by Max Steuer in the Triangle Shirtwaist prosecution where a prosecution witness used virtually the same language to tell the story again and again, suggesting it had been memorized and the jury acquitted.)  Does anyone doubt that the prosecutors in this case--every experienced trial prosecutor--has sent many people to prison by assuring the jury that prosecution witnesses were reliable in spite of testimonial inconsistencies far more profound than these?

Do not misunderstand my point.  It may be that in fact George Zimmerman killed Trayvon Martin in cold blood with no justification.  But unfortunately, trials cannot magically discover actual historical truth when there is no solid evidence or reliable witnesses.  No person of any race deserves to be convicted of a serious crime solely because a terrible thing happened, and there's something about the defendant that the jury does not like. People of color are disproportionately caught up in the system.  If defendants can be convicted based on effective impeachment and insinuations about motive in the absence of meaningful evidence that they actually committed crime, that would be terrible for people of color.  Therefore, in my view, if Zimmerman is acquitted, it will not indicate, like the Rodney King travesty, that people of color are reated unjustly.  Instead, it will be a sign that even in high pressure cases involving terrible crimes, juries can acquit when there is a reasonable doubt. 

Posted by Jack Chin on July 4, 2013 at 12:17 PM | Permalink


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In reply to: Members of the public who have been paying attention to the evidence and law will conclude that meritless charges were pursued because of racial politics. Racism and racial discord will be the big winner.

I think it goes beyond that. I felt that Zimmerman should have been charged, but the racial factor never played any part in that stance. For me it was more a case of the law's inherent bias against the one person who can no longer speak in his own defense and I hope that the law is changed to take this into account. For example, in the future where a person shoots and kills an unarmed person and claims 'self-defense' it should be mandated that the shooter be immediately detained regardless of the situation. The 'detainment' (not arrest) would include a complete evidence-gathering examination of the individual to test for any drug or alcohol use as well as the extent of any injuries suffered The detainee would not be able to decline this examination; and, a refusal would be cause for arrest, in the same way that a suspected drunk driver would be arrested for failure to agree to a mandated breath test. In my view, since the person invoking self-defense has in effect destroyed evidence (by the killing of the only primary eye witness) he cannot then decline to provide any evidence that might serve to undermine his claim.

Posted by: Robert | Jul 23, 2013 1:06:02 AM

Reasonable doubt is in the eye of the beholder. It is not an objective standard.

Posted by: Bert Golde | Jul 13, 2013 11:46:43 PM

It does look like TM beat GZ and place him in reasonable fear for his life (or so does the evidence objectively appear). What is so friggin unconfortable about this realization, however, is that this case is about TM's race. It may not be legally relevant, nor "proximate" cause of his death, but I think it's obviously a "but-for" cause, so to say.

Why? The State has surely proved (IMO) that GZ's pursuit of TM was completely unjustified and prejudiced, motivated by some undue zeal or fear about law and order. GZ's observation of TM's "suspiciousness" had to be racial ultimately. If it was a white kid, he would not have followed him, sad to say.

But though what GZ did was wrong and prejudiced, it wasn't illegal. And likely because this was wrong and prejudiced, it probably provoked TM into a disproportionate and passionate response, that spiraled out of hand, ultimatly placing GZ in a position where the evidence allows him to justifiably shoot.

This is a bitter pill to swallow, and way too nuanced for the sensationalist media. GZ would not have pursued TM if he was a different race; TM would not have responded the way he likely did if not for this obvious racial backdrop; yet ultimately, TM probably acted excessively, and GZ was probably justified under the law. Yet if GZ was not a prejudicied, law-and-order zealot, he would not have gotten into this mess. It's hard to fathom and harmonize this whole situation.

It looks like GZ should and will be acquitted, but the racial issue in this case is definitely present and will need to be talked about.

Posted by: KingHall2011 | Jul 9, 2013 9:04:53 PM

The bankruptcy of the state's case was obvious back when you publicly declared that the filing of charges was "a victory for the legal system."

Well, no. It’s been a huge loss for the legal system, as it always is when we base our decisions on public sentiment rather than evidence. When the convictions do not come, just about everyone will be disappointed. Members of the public who have been listening to the Jack Chin’s of the world will conclude that a righteous case was thwarted by racism. Members of the public who have been paying attention to the evidence and law will conclude that meritless charges were pursued because of racial politics. Racism and racial discord will be the big winner.

Posted by: GdG | Jul 8, 2013 12:17:26 PM

Hi AF, AGR and others,

I have responded to some of the comments about stalking here and elsewhere in this new post: http://prawfsblawg.blogs.com/prawfsblawg/2013/07/stalking-george-zimmerman-and-curry-v-state.html

David M and Mark, I suspect we are not disagreeing, but I think SYG (taking it to mean the reform statute as a whole) applies to the extent that it means that GZ did not have to retreat. The retreat rule for deadly force existed in prior FL law, so SYG is important. I would be shocked if GZ's lawyers did not request that the jury be instructed that no retreat in the face of deadly or non-deadly force was required.


Posted by: Jack Chin | Jul 8, 2013 2:48:15 AM

Mark is correct when he questions the relevance of the Stand Your Ground law; it is not part of this case. There are two possibilities: either

(1) Zimmerman is telling the truth and Martin attacked him without warning, in which case SYG would not apply -- the ordinary rules of self-defense would; or
(2) Zimmerman is lying about what happened, in which case SYG would also not apply.

The media hyped SYG from the beginning, not understanding how the law worked, but this is simply a traditional self-defense case.

Posted by: David M. Nieporent | Jul 8, 2013 2:05:59 AM

@John-- the situation n the link you provided is being compared to the Martin case, but there is little reason to do so. The facts are different. What we have here is someone who stalked a person against the expressed advice of the police, thus precipitating a confrontation, started to lose in the ensuing altercation, killed the object of his attention, and then claimed self-defense. That cannot be right.

Posted by: AGR | Jul 7, 2013 11:53:14 PM

"As the trial has progressed, no one, not one witness, testified to facts strongly indicating a felonious killing. . . . [I]n a jurisdiction where self defense must be disproved beyond a reasonable doubt, so far I have not seen enough evidence to warrant a conviction for anything."

I have heard this argument so many times and it drives me crazy. Are you suggesting that if you ignored Zimmerman's account of the events, the facts would not indicate a felonious killing? Surely that can't be the argument. The objective facts are that Zimmerman pursued the unarmed Martin, ended up getting in a fight with him in which he suffered only minor injuries, and then shot him. Those facts strongly indicate a felonious killing.

To be sure, Zimmerman has told a tale which, if believed, would constitute self defense. But why in the world should anyone believe anything he says? Of course he's going to say it was self defense. If the jury believes him, that is their right and prerogative. But the idea that they are somehow *required* to believe him -- or indeed to give his testimony any weight at all -- is just bizarre.

Posted by: AF | Jul 7, 2013 5:12:16 PM

Blakenator references the "stand your ground" law but I didn't think that was part of GZ's defense at trial.

Posted by: Mark | Jul 7, 2013 9:05:14 AM

AGR: There is no way a black man who was carrying a gun following a young white man because he did not think the young white man belonged in the neighborhood would not have been charged if he had ended up killing the young white man. No way.

“In a case that is being compared to the Trayvon Martin shooting, a black man who shot and killed an unarmed man outside an Arizona restaurant is claiming self defense.”


Posted by: john | Jul 6, 2013 9:30:43 PM


I think it depends on the meaning of provocation sufficient to eliminate self-defense. But your mutual self-defense scenario is entirely plausible, and I proposed it in my CNN commentary linked above. Tragic, of course, but this is the law that the people of the State of Florida have enacted.


Posted by: Jack Chin | Jul 6, 2013 5:28:58 PM

I have deliberately avoided watching the media spectacle, so I have not been infected by the clown show interpretations of some nuance by witnesses or lawyers. It just seems to me that the "stand your ground" law enables me to provoke you into some sort of action that "causes" me fear great enough to kill you. One theory I have not heard is maybe the Martin kid was afraid and the actions he took were self defense in his mind. That means both of them were "standing their ground," only one of them was armed. And one of them is dead.

Posted by: Blakenator | Jul 6, 2013 5:14:08 PM

Murders of black men are an epidemic in this country, and the issue should receive national attention. About 50% of murder victims each year are black men.

What makes this case different is the race of the perpetrator. 93% of black men are killed by other black men, but here we have a self-identified hispanic doing the killing. So maybe this is a "man bites dog" story; the public has been regrettably indifferent or numb to black-on-black violence, but the facts of this case are very unusual, in light of the typical circumstances surrounding the death of a black male.

Posted by: statistics | Jul 6, 2013 5:12:37 PM


The racial aspect of the case is symbolic; too often, it seems, unarmed black people are shot and killed under dubious circumstances. To some, this appears to be more of the same. So I understand that people concerned about racial discrimination are concerned about this case.

The problem, though, is that to me the facts here do not fit the pattern (other than, as Brad implies that the lenient carry and self-defense laws may be motivated by a racialized fear of crime), and even if it did, the case should be judged on its own merits, rather than punishing GZ to make a larger point. The idea that it is OK to punish people to make a larger point without too much attention to guilt or to whether punishment is warranted as a matter of policy has been a huge burden to people of color over the decades.


Posted by: Jack Chin | Jul 6, 2013 3:06:16 PM

Or it could indicate he actually didn't do anything wrong, folk seem to be forgetting this.

Posted by: Peter | Jul 6, 2013 1:45:25 PM

I am puzzled by many of the comments claiming there is a racial aspect of the case. GZ is one quarter black and considers himself to be Hispanic and Martin's family and lawyers have recently insisted this is not a case about race. I have no idea whether GZ is guilty or not but he deserves a fair trial just like anyone else.

Posted by: Mark | Jul 6, 2013 9:51:39 AM

And if he is acquitted, it will send the message that whites have the right to police blacks who wander into their territory because the streets do not really belong to blacks. I know that is already true, but this will reaffirm that reality.

Posted by: AGR | Jul 5, 2013 9:04:44 PM


I do not disagree with your views about racism in general, but I disagree about the prescription. If we allow GZ to be convicted based on thin and ambiguous evidence, it will harm blacks and the poor much more in the long run.


Posted by: Jack Chin | Jul 5, 2013 8:49:06 PM

No, what it will indicate is that young black males have no right to defend themselves against aggressors who are not black. There is no way a black man who was carrying a gun following a young white man because he did not think the young white man belonged in the neighborhood would not have been charged if he had ended up killing the young white man. No way. Especially if the police had told the black vigilante not to keep following the young man. This is more evidence that the lives of blacks do not count as much as the lives of whites.

There was a recent study that showed that whites do not believe that blacks feel pain as much as whites feel pain, or experience fear in the same way. Earlier studies show that doctors give black cancer patients less pain medication than white patients, causing them to suffer more. These attitudes permeate our society, and infect the criminal justice system. This impedes justice for blacks as people harbor attitudes that they do not even recognize they have.

Posted by: AGR | Jul 5, 2013 8:40:17 PM

Jack --

I haven't watched the trial, so I couldn't say for certain, but it is my general impression that under the law as it stands the evidence is insufficient for a reasonable trier of fact to find Zimmerman guilty beyond a reasonable doubt.

I wouldn't agree that Florida law as it stands today, and the NRA campaigns that produced it, are untainted by racial animus and stereotyping.

Posted by: brad | Jul 5, 2013 4:38:56 PM


Your argument is reasonable, perhaps, but one which the states, thank to the NRA campaign, has rejected. Given that, would you agree that in a state like Florida where the legislature had determined that virtually every adult without a serious criminal record is welcome to get a permit to carry a concealed weapon, and that the burden of persuasion for self-defense is on the state, beyond a reasonable doubt, the evidence against Zimmerman is insufficient? (I see from your first post that you know the law here).


The police and original prosecutors declined to charge Zimmerman. The governor appointed a special prosecutor, who charged by information rather than taking the risk of presenting the case to the grand jury.


Posted by: Jack Chin | Jul 5, 2013 3:58:52 PM

Samantha --

If the burden were on the defense, at the very least the jury would be more likely to hear from the one guaranteed witness i.e. the defendant.

Furthermore, at least to me, the penological calculus changes when dealing with self defense versus innocent in the sense of 'wasn't there didn't having anything to do with it'. I'm not willing to see quite so many people go free to prevent one self defense claim from being wrongly rejected.

Posted by: brad | Jul 5, 2013 2:23:46 PM

The police originally were not going to charge Zimmerman but the, as a result of public pressure, the prosecution pushed ahead. Is the type of testimony presented by the police the result of a turf war between the polic and the prosecution?

Posted by: Mike Zimmer | Jul 5, 2013 1:45:07 PM

Re: Brad - if defendants had to prove to a preponderance of the evidence all the elements of self-defense in order to succeed then people who legitimately defended themselves would be convicted absent sympathetic witnesses or favorable forensic evidence that rarely exists as to all the elements. In a case where an altercation occurred between two people alone, and there is evidence that both parties used physical force but it cannot reveal who was the aggressor, you'd have a situation where someone who defended themselves in actuality would have no evidence to put forward that the decedent was the aggressor, whereas the prosecution would have ample evidence that the defendant committed an intentional homicide.

The problems of disproving self-defense are also problems of proving self-defense and shifting the burden of proof doesn't better equip juries to reach the truth it just changes the weighting in how the trial proceeds from one favoring defendants on that question to one favoring the state on that question.

Posted by: Samantha | Jul 5, 2013 11:54:04 AM

Perhaps what it really points to is the problematic nature of the modern burden of proof for the affirmative defense, particularly given gun laws that allow anyone to walk around with an arsenal.

Let the prosecution prove that there was a killing and that it was intentional. Then let the killer prove, by a preponderance of the evidence, that the killing was in some way justified if he wishes his conduct to be excused.

Posted by: brad | Jul 5, 2013 10:15:21 AM

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