Race to the Bottom: Why the George Zimmerman Verdict Was the Right One

“Atticus told me to delete the adjectives and I’d have the facts.”

Scout Finch in Harper Lee’s “To Kill A Mockingbird”

“It's always difficult to keep personal prejudice out of a thing like this. And wherever you run into it, prejudice always obscures the truth.”

Juror No. 8 in Reginald Rose’s “Twelve Angry Men”

“No person shall be… deprived of life, liberty, or property, without due process of law.”

U.S. Const. amend. V

As absolutely everybody knows, George Zimmerman was acquitted of the murder (and manslaughter) of Trayvon Martin July 13, 2013.

And… that’s about the only thing on which we agree. After that, our opinions—and indeed the very facts on which we’re basing those opinions—diverge wildly and widely.

It’s funny: While I almost never get caught up in these heavily-covered trials and can’t, for example, tell you anything at all about Caylee Anthony, I believe that the George Zimmerman trial has changed the way I think.

I’ve been fascinated—and frustrated—with the epidemic misstatement of the facts and the misinterpretation of the law (including my own, until I look it up and find that I am often dead-wrong about what I think I know). Frankly, it makes me question whether I’ve based any of my deeply-held political opinions on fact—or on someone else’s (maybe shaky) interpretation of the facts.

As I’ve watched various friends and family members (and myself!) age, I’ve noticed that we either get more “sure” of ourselves or less so. For me, the more I learn, the less I know. That’s unsettling, but I think that’s the way it’s supposed to be. Otherwise, you end up rigid, bitter, and a caricature—“Kids today!” and “Get off my lawn!”

Due to both the intense media coverage and the incendiary subject matter, everyone has been discussing the case, which picks at two of our most divisive political topics (guns and race). Mix in the typically shameful way that we treat young black men in our criminal justice system, and add that a teenager is dead, it’s no wonder we’ve all felt a deeply personal reaction to the verdict.

Among my circle of Facebook and real-world friends, anyway, the divide is pretty wide, and I’m a little disturbed to find myself on the “wrong” side here—maybe for the first time. There’s no middle ground, apparently. What’s worse, your opinion says something about who you are as a person.

What my oversensitive ears are hearing is this: If you’re not willing to concede that George Zimmerman is a vigilante racist who stalked an innocent child and shot him through the heart for no other reason than because he was black, then you’re on the side of the racist-apologist gun-nuts. On the other hand, if you’re not ready to label George Zimmerman a blameless, holy creature, then you’re a likely Communist who goes for pedicures with Al Sharpton every other Saturday.

Much of this appears to come from our eagerness to make this case, this one single case, represent what is wrong—or right—with America. We’re trying to make this case fit our beliefs about whichever hot-button political issue we champion. As a result, I’ve heard that it’s now “open season on black teenagers in America!” and conversely “don’t act like a criminal and you won’t be treated like one!” Sigh.

How can this be? How can we all have the same facts but come up with opposite conclusions? The problem, I think, is that we don’t all have the same facts AND we’re not all correctly applying the law to the facts.

Rather than add to all of the noise, I hope to clarify some things. Further, as you’ve probably guessed, I want to explain my (apparently) radical viewpoint that justice was served. I don’t meant this: “Well, given the evidence, the jury did the best it could, but they weren’t able to make it stick.” Instead, I mean: While it is a terrible shame that Trayvon Martin is dead, George Zimmerman should not have been held criminally responsible for his death.

Here’s why:

What are we trying to prove?

To discuss any case meaningfully, we’ve got to lay the foundation: burden of proof, statutory elements, and standard of proof.

In general, in any type of case, the party who brings the suit is required to provide sufficient evidence to convince the trier of fact to abandon the default position.

In a criminal case in the U.S., this means that the prosecution, the People, the state (the party bringing the suit) must provide sufficient evidence (must prove that the defendant committed every element of a crime beyond a reasonable doubt) to convince the jury to abandon the default position (that the defendant is innocent).

To ensure that we’re not depriving a criminal defendant of his Fifth and Fourteenth Amendment rights to life and liberty without due process of law, we require ourselves, the People, to find him guilty of the crime to the highest standard (beyond a reasonable doubt, which means not to an absolute certainty, but that no reasonable person could come to a different conclusion given the evidence). Otherwise, we will not allow ourselves to send him to prison.

George Zimmerman was charged with second-degree murder, which in Florida is “the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design….” § 782.04(2), Fla. Stat. (Supp. 2012).

Even though Zimmerman was not originally charged with manslaughter, the judge allowed the State to add manslaughter as an option for the jury. This is technically legal, but it gave the prosecution quite an advantage over the defense. For reasons that are too complicated to discuss here, Florida is less friendly than other states are to this “if you can’t prove murder, then try manslaughter” option. This move was controversial, and it should have been, as it put the defense at quite a disadvantage AND it was contrary to the prosecution’s theory of the case. Still, the judge allowed it over the defense’s vigorous objections, so it went to the jury.

In Florida, manslaughter is: “The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification….” § 782.07(1), Fla. Stat. (Supp. 2012).

The defense of self-defense

Even if the State proves each element of the statute (and the defense doesn’t successfully refute this), the defense can raise a defense that means: “Even if I did it, I should be excused because….” These are known as “affirmative defenses” (“yes, I did it”), and self-defense is one of them.

Nearly everyone is confused about “Stand Your Ground” laws and whether they played a part in the defense. It’s no wonder people are confused, because it’s complicated.

It’s true that Florida has a “Stand Your Ground” law, and that the essence of this law was explained to the jury in the jury instructions—as it should have been, because it is the current self-defense law in Florida. It is also true that the question of whether George Zimmerman could use deadly force with no duty to retreat is a moot one: If the jury believed that Trayvon Martin was on top of George Zimmerman and was getting the better of him in the fight, then George Zimmerman had no duty to retreat because it was not possible for him to retreat.

This is crucial: For this reason, it does not matter whether George Zimmerman approached Trayvon Martin first. (This is not really disputed.) It also does not matter whether George Zimmerman is overly-suspicious of black teenagers. (The evidence does not show that he was. If you believe that he is a racist, I would ask for you to review the testimony and other evidence again. Also, read the non-emergency and 911 call logs from Zimmerman’s prior calls as a neighborhood watch coordinator. Listen to the non-emergency call that he made that night. Review Rachel Jeantel’s testimony, too. Question whether any evidence shows that Zimmerman “stalked” or even continued to follow Trayvon Martin after the dispatcher said, “We don’t need for you to do that, sir.” Despite what you’ve heard, I think you’ll be surprised.)

At any rate, this is why I chafe at the claims that Florida is somehow different and that this wouldn’t have happened in some other states or that it is “open season on black teenagers!” If someone has you pinned down and is punching you—and you fear death or great bodily harm (as any reasonable person would), you are allowed to use deadly force to defend yourself—in every state, at any time.

Like it or not, the evidence presented at trial supported George Zimmerman’s claim that this is what happened—the prosecution did not present much if any credible evidence to support any other version of events. In my opinion, the evidence that was withheld from the jury tended to be more favorable to George Zimmerman’s version.

The arguments I’ve heard against Zimmerman—that he was a racist vigilante who started the fight, pursued Trayvon Martin, and shot him for no good reason—do not stand up to (admittedly, scant) eyewitness testimony, call logs, the ballistics expert, and other evidence. There was no “getting off on legal technicalities,” and Zimmerman didn’t walk free because the prosecution was incompetent. There was not enough evidence to convict him—and it was probably because the prosecution’s theory of the case was not consistent with the facts.

So why does “Stand Your Ground” matter?

At common law, a person who was being attacked and feared death or great bodily harm could not use deadly force to defend himself if he was able to get away. In other words, before he could use deadly force, he had a “duty to retreat.” In general, a person didn’t have the same duty to retreat if he was in his home—because traditionally, your home is your castle AND if you’re already at home, you can’t very well retreat any further than that.

Several states (20 or more at last count) have expanded this in their self-defense statutes—the so-called “Stand Your Ground” laws. Generally speaking, under these laws, a person who is attacked and fears death or great bodily harm can use deadly force to defend himself and has NO duty to retreat—not only in his home, but anywhere where he has a legal right to be.

In Florida, the law reads:

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” § 776.013(3), Fla. Stat. (Supp. 2012).

Based on this statute and the case law that interprets it, Zimmerman’s claim that he acted in self-defense would be accepted unless the jury had a reasonable doubt that he did not act in self-defense. See Murray v. State, 937 So.2d 277, 279 (Fla. 4th Dist. 2006) and Montijo v. State, 61 So.3d 424 (Fla. 5th Dist. 2011).

Apparently, this holds true UNLESS, as another part of the Florida statute has it, you’re the initial aggressor, in which case you’ve still got a duty to retreat before you can use deadly force: “The justification described in the preceding sections of this chapter is not available to a person who… Initially provokes the use of force against himself… unless… he… has exhausted every reasonable means to escape such danger….” § 776.041(2)(a), Fla. Stat. (Supp. 2012).

Oh, well, there you go, right? Zimmerman was the initial aggressor, wasn’t he? Didn’t he approach Trayvon Martin first?

Well, “initial aggressor” takes more than that. The case law that I read (and I read a lot) suggests that it requires the “initial aggressor” to actually attack the other person or to otherwise have “dirty hands”—to be breaking some law. I have heard some arguments that Zimmerman was stalking Martin or otherwise frightened him, and therefore he was the aggressor. This does not appear to rise to the level of “initial aggressor,” though—certainly Zimmerman was not breaking any laws by asking Martin what he was doing there (if that is what he did).

Anyway, for reasons stated above, this hardly matters. The evidence showed that Zimmerman had no duty to retreat—because it was impossible for him to retreat.

That’s why “Stand Your Ground” is important here—yet it did not determine the outcome of the case.

If you want to argue that “Stand Your Ground” laws encourage vigilantism or that George Zimmerman should have stayed in the car even though he had the right to decide otherwise, you can. I’m arguing that those points are irrelevant to the case.

Putting it all together

All of the above lengthy and complex legal analysis boils down to this:

The prosecution had the burden to convince the jury beyond a reasonable doubt that Zimmerman either 1) Killed Trayvon Martin because he had a “depraved mind”—so full of ill will as to be evil, corrupt, outrageously inhuman (second-degree murder) AND that he was not acting in self-defense OR 2) Was so negligent and careless of human life that he killed Trayvon Martin with no justification or provocation.

To me, and to the jury, the prosecution failed to do this.

Racism and common sense

Maybe it’s human nature, some evolutionary suspicion of “otherness”, but I believe that almost everyone is to some degree a racist, or a sexist, an ageist, a classist, etc. President Obama says that every African-American man has had the experience of being mistaken for a waiter, say, or noticing a woman clutch her purse when he walks past—and I don’t doubt it. This is shameful and damaging, but that’s not nearly as bad as it gets, e.g. “driving while black.” Even though I’m a woman and was raised not-so-wealthy in Southern Appalachia, I’ve got no idea what it’s like to automatically fall under police suspicion because of what I look like. Several parents of African-American children have reported that they feel compelled to give their sons “the talk”—how to act, where to keep your hands during a police stop so that the police don’t assume you’re reaching for a gun. This is horrifying.

George Zimmerman saw Trayvon Martin and believed that he was a suspicious person. Is this racist? I’m not so sure. The neighborhood was troubled by burglaries, and Zimmerman saw a person walking at night and called the report in—as he had been asked to do in his capacity as a neighborhood watch coordinator. (According to Zimmerman, Martin was walking slowly in the rain and looking at the houses, but there is no evidence of this other than Zimmerman’s word.) This does not seem like racism to me. Are we really saying that Zimmerman would have decided NOT to call in the report had Martin been white and yet was walking in the same place at the same time of night and behaving in the same way? Surely not.

We’ve also heard that Zimmerman (who is Hispanic in Florida and should know what prejudice feels like) mentored African-American kids and dated an African-American girl. I’m not sure we need to go that far, but I haven’t heard any evidence that convinces me that Zimmerman was a rank racist who “profiled” Martin because of race.

In fact, when I've asked people why they believe this, I've been given "facts" that bear little to no resemblance to the facts of the case.

It's also disturbing that NBC news apparently edited Zimmerman's call to make it sound as if he said: "This guy looks like he's up to no good. He looks black.” In fact, the conversation went like this:

Zimmerman: This guy looks like he's up to no good. Or he's on drugs or something. It's raining and he's just walking around, looking about.

Dispatcher: OK, and this guy - is he black, white or Hispanic?

Zimmerman: He looks black.

Why are we trying so hard to make it sound as if Zimmerman profiled Martin based on face--particularly when Zimmerman didn't appear to know what Martin's race WAS until after the fact?

Further, if he had wanted to “stalk” Martin and shoot him vigilante-style, it doesn’t make sense that he would summon the police first, does it?

As far as the racism inherent in the criminal justice system, many were outraged when the local district attorney failed to charge Zimmerman with a crime at first. Again, I’m skeptical that race played a part. Instead, I think the prosecutors were correct when they said initially that there was not enough evidence to convict Zimmerman.

Then, Florida governor Rick Scott removed local prosecutors and appointed a special prosecutor, who charged Zimmerman. In my opinion, this was in response to public and other outside forces—and I’m not comfortable with that. At any rate, Zimmerman was charged with murder—even though there was little evidence to support that charge and even though he had a compelling claim of self-defense. No grand jury necessary, even though the Fifth and Fourteenth Amendments call for one. Further, the “charge” of manslaughter was added later, even though that’s an odd move for a Florida judge—and it took away the defense’s ability to attack this in pretrial.

For these reasons, I don’t see how anyone can reasonably say that the system was biased in FAVOR of George Zimmerman.

While I won’t deny that the deck is often stacked against poor people or people of color, we appear to have bent over backwards to get George Zimmerman charged and tried.

Racism is a problem. Falsely accusing people of being a racist doesn’t solve the problem.

Justice was served

In a perfect world, and based on the ideals of our criminal justice system, the State cannot take away a person’s constitutional right to life, liberty, or property without due process of law. We ensure this by requiring the State to prove—beyond a reasonable doubt—that the defendant has violated every element of a criminal statute. Further, we require the trier of fact to weigh any defenses that the defendant may offer, and to apply the appropriate standard of proof to those claims. Then and only then, do we have the right to imprison a defendant.

We require this of ourselves even if we don’t like the defendant, or if we’re horrified that a teenager is dead, or if we are ashamed of our society’s racist past or of the racist and classist tendencies of our criminal justice system. We can’t right other wrongs on the back of THIS criminal defendant.

Is it sad that Trayvon Martin died? Horribly sad. Is our criminal justice system always fair? No! Is George Zimmerman a prudent man who used the very best judgment? Almost certainly not.

In this case, however, despite intense media coverage and pressure from the public and perhaps from the federal government, a properly-seated jury weighed the evidence and decided that the prosecution did not prove beyond a reasonable doubt that George Zimmerman committed murder or manslaughter.

We’ve got plenty of examples of cases in every state of the flaws in our criminal justice system.

This case is not one of them.