Friday, July 26, 2013

Richard Epstein: Justice for Trayvon Martin?


Our country has had its fair share of racist travesties, but the George Zimmerman verdict is not one of them. 

As the country well knows, in a Seminole County courthouse on July 13, 2013, a six-woman Florida jury acquitted George Zimmerman of charges of both second-degree murder and manslaughter for the killing of an unarmed 16-year-old Trayvon Martin. Ordinarily, a jury verdict signals an end to public controversy on a particular case. But not in this case. The post-trial events have turned a powerful lens on modern American society. That lens reveals a deep distrust of the operation of our criminal justice system by millions of Americans who think that Zimmerman’s acquittal amounted to a travesty of justice.

The United States has had its fair share of travesties, but the Florida verdict is not one of them. For starters, why should Zimmerman have been prosecuted at all? A timeline compiled in April 2012, shortly after the tragic events, reveals conflicting accounts of who attacked whom and why. To be sure, there are some serious inconsistencies in Zimmerman’s various accounts, but none that suggest he was the initial aggressor in the case.

Taking the evidence as a whole, it is not clear who approached whom first or who initiated the use of force. It was clear, however, that one person was on top of the other when Zimmerman shot Martin, but the identity of that person remains unclear. An imperfect eye-witness account pointed to Trayvon being on top of Zimmerman, beating his head into the concrete, which would account for the bloody scrapes on the back of Zimmerman’s head. If Martin had lived and Zimmerman died, charges of homicide—perhaps of second-degree murder—might have been brought against Martin.

The Record Speaks

The public outcry against the verdict does not rest on a close examination of the evidence, but on an assumption of racism—namely, that black individuals have been and are being subject to all sorts of petty harassments that encourage other people to disrespect their rights.

For instance, there is certainly good reason to believe that many of New York’s stop and frisk incidents are an overreaction to unfortunate stereotypes that result in police sweeps that contribute little or nothing to crime reduction. But such arguments are beside the point here and should never be allowed into evidence to influence the jury’s decision. At trial, the basic inquiry doesn’t relate to general sociological trends, but to the sequence of events in this particular case.

But this point of view never entered into the political equation. After some delay, public outcry forced the trial, in which the lead prosecutors came off second best against a determined team of defense lawyers. This trial was no ramshackle affair, as the jury heard from over 50 witnesses and sifted through thousands of pieces of evidence before reaching its verdict the second day after the trial was over. That relative speed suggests that the jury found the case easy to decide, as did many criminal law experts who commented on the case afterwards.

The jury’s task was, of course, to evaluate whether the prosecution had proved all elements of the case beyond a reasonable doubt. There was no question as to who shot whom, but the prosecution simply could not sustain the heavy burden of proof that it carried to disprove the claim of self-defense, for none of the evidence presented could close the evident holes in its case.

Indeed, the short statements after the trial by Florida prosecutors Bernie de la Rionda and Angela Corey only confirmed just how weak the prosecution’s case was. They implied that Zimmerman was racist and that he had engaged in a form of racial profiling. But there was no evidence to support such claims. It is standard practice to use race in dealing with past incidents in order to minimize the risk of wrongful arrest. Nor was there any evidence to suggest that Zimmerman was playing the role of wannabe-heroic cop the evening Martin died. The defense lawyer Mark O’Mara was right to stress that the prosecution cannot ask the jury to fill in the dots to make a coherent story. The case was rightly decided. Indeed in my view it should never have been brought as a criminal case at all.

The Overheated Public Reaction

If what went on in the courtroom served justice well, the same cannot be said of the public protests both before and after the trial. In this instance, the criticism started at the top with two influential and powerful statements by President Obama. After Martin’s death, he opined in March 2012 that “If I had a son, he’d look like Trayvon.” In the aftermath to the trial, he picked up on the same theme when he stated in a short unannounced White House session, “Trayvon Martin could have been me 35 years ago.”

Without question, these moving tributes to Martin have had a huge public impact on how to think about the case. On the positive side, portions of his more recent statement contained commendable notes of moderation when he reminded all Americans that the jury had “spoken” and its verdict had to be respected. He was undoubtedly correct to note as well that all too many African Americans have been subject to petty humiliations when doing something as simple as walking down the street.

But to make his remarks credible—if he is to make remarks on the subject at all—he would have had to state whether the jury verdict was correct, which is most imprudent so long as the case is subject to a federal investigation. He could not meet that concrete challenge by offering a general background history of the state of race relations in the United States. Given his official duties, it would have been best for him to remain silent.

It turns out that silence on his part would have been especially appropriate, because the Florida verdict does not necessarily spell the end of this case. The moment the verdict came in, the NAACP, in cooperation with Moveon.org, mounted a campaign to open a second front against Zimmerman by insisting that the federal government initiate its own criminal prosecution against Zimmerman. The campaign has secured over 1,000,000 signatures by people who harbor no doubt about what the correct verdict should have been.

In this regard, it should be stressed that the constitutional protection against double jeopardy does not offer Zimmerman any protection, given that the first prosecution took place within the state system while the second would take place within the federal system. As I have written earlier, the narrow judicial construction of double jeopardy allows two successive prosecutions even within the same federal system, at the risk of enormous abuse of prosecutorial discretion—something all too evident here. To see why, it is necessary to read the remarks of Benjamin Todd Jealous, President and CEO of the NAACP:
It is clear George Zimmerman’s bias played a major role in the events that led to the death of Trayvon Martin. A cousin called the police days after the murder and said, ‘I think he did this because of race.’ He had previously called the police dozens of times, disproportionately about young men of color who he thought were suspect. George Zimmerman himself stated on the night of the attack, ‘These punks always get away with this.’ The law says you must be able to show that race was a factor and that bodily harm was done. We believe there is enough evidence to satisfy this standard.
The supposed indictment begins by relying on useless evidence by Zimmerman’s cousin—statements inadmissible as hearsay in every court in the land. Zimmerman’s previous phone calls to the police are again utterly irrelevant to the events of that fatal evening, and the reference to “punks” does not mention race and, in any event, is appropriate to describe individuals who get away with burglary; preventing them is why Zimmerman joined the neighborhood watch in the first instance. Nor has the federal government’s investigation to date, which has included exhaustive interviews with friends and family, turned up any evidence that Zimmerman harbored general racial bias that could have led to him to attack Martin. In order to make this into a federal case, some specific element of racial animus has to be injected into the mix, for which not a shred of evidence has been found.

In Attorney General Holder’s address to the NAACP’s annual convention in Orlando on July 16, he told his cheering audience that even though the Florida jury had “spoken,” the Department of Justice has “an open investigation” into the case, and noted that “while that inquiry is ongoing, I can promise that the Department of Justice will consider all available information before determining what action to take.”

As is so often the case, Holder is way off base. Like the President, he should not imply loyalty to one side before a committed audience until his independent investigation has run its course. It’s possible that Holder was simply trying to quiet the crowd while waiting to close the investigation without a trial. Still, the correct public posture is for Holder and the President to stay out of partisan politics so long as this case is under criminal investigation for some civil rights violation. Thankfully, we no longer live in a time in which the total breakdown of state law systems requires a federal backstop to ensure that a fair trial takes place.

In any event, based on the substantial evidence aired both before the Florida jury and in the public square, it is clear that a second criminal prosecution is inappropriate. Martin’s family of course still retains the option of a civil suit, at which Zimmerman could be put on the stand.

Aristotle’s Wisdom for Today

It is useful to contrast the weak government case against Zimmerman with the events recounted in Ryan Coogler’s 2013 movie Fruitvale Station, which is based on real events. The movie starts with a grainy home video that shows BART police officers manhandling 22-year old Oscar Grant and his friend, who are coming back from a New Year’s Eve party. No rational person could doubt that the police officers used excessive and deadly force against Grant, who was in handcuffs. The movie portrays Grant as a high-spirited young man with an infectious smile who was just getting his life together. But suppose that this account were totally false. Under standard criminal law principles, it would not lessen the severity of the misconduct of the BART police even if he were an absolute thug.

The final voiceover in Fruitvale Station ends with a yet another plea for justice for Trayvon Martin. We don’t need this hasty generalization. As Aristotle said long ago in Book V of the Nicomachean Ethics: “For it makes no difference whether a good man has defrauded a bad man or a bad man a good one; . . . the law looks only to the distinctive character of the injury.” Good advice. We should postpone any larger discussion of race to another day.

Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.


11 comments:

Anonymous said...

The Media Lynching of George Zimmerman I

Evidence revealed in the Trayvon Martin murder trial totally blows away the MSM narrative that the white racist George Zimmerman cold-bloodedly profiled, hunted down and executed an angelic black boy.

For a full week last year after the tragedy, NBC "Nightly News" and "Today" ran audio tape of Zimmerman allegedly telling a 911 dispatcher, "This guy looks like he's up to no good. He looks black."

To an audience that didn't know better, that was damning evidence — a seemingly open-and-shut case of racial profiling. Only, it was a frame-up.

NBC producers doctored the recording to portray Zimmerman as a bigot. In the unedited 911 call, the dispatcher asks Zimmerman to describe Martin's skin colour. Yet NBC made it seem as if Zimmerman targeted him because he was black and edited the exchange to look like he believed blacks in general are up to no good.

Here’s what NBC broadcast on its Today show:

Zimmerman: This guy looks like he’s up to no good. He looks black.

Here’s what was on the real recording:

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.

NBC doctored the record to strengthen the popular narrative that Martin was followed and shot because he was black. It’s a narrative that has thousands of protesters out calling for Zimmerman’s scalp—some literally. The situation has clearly been inflamed by NBC’s misreporting. If there’s more violence NBC will rightfully share the blame.

So what does the network have to say? An error was made.

Here’s NBC’s only statement, in its entirety:

“During our investigation it became evident that there was an error made in the production process that we deeply regret. We will be taking the necessary steps to prevent this from happening in the future and apologize to our viewers.

A "seasoned" NBC News producer [whom NBC has refused to name] was responsible for deleting a segment of the 911 call to suggest that Zimmerman targeted Trayvon Martin out of racial animus, This producer and two others involved were later fired once this went public.

The network stated it regarded the producer's action as a very bad mistake but not deliberate. NBC has brought “news” to a new low. They just made it up. And apologize? Not exactly. You see, it was just “an error.”

Anonymous said...

The Media Lynching of George Zimmerman II

Other examples of biased media coverage included:

• ABC News originally claiming Zimmerman had no visible signs of injury based on a fuzzy police station video that later, when enhanced, clearly showed wounds to his head.

• The MSM ramping up the racial angle by referring to the brown skinned, half-Jewish, half-Hispanic, George Zimmerman as “white.” Had a Jewish neighbourhood watch patrolman shot a suspicious-looking Zimmerman during a similar altercation, no doubt the matter would have been reported as “White racist guns down Hispanic.” Zimmerman’s misfortune was that the other protagonist happened to be a member of an even more media-coddled minority group: a black man.

• CNN isolating part of a 911 call and speculating Zimmerman could be heard in the background calling Martin a “fucking coon,” when in fact he did no such thing. A CNN audio expert who later used software to enhance the call has determined that Martin actually said "fucking cold," referring to the unusual Florida weather that night.

• Networks broadcasting photos of an angelic-looking Martin as a pre-teen, ignoring social-media photos of a tall, tattooed 17-year-old smoking, shooting the middle finger and glowering gangsta-style at the camera with gold teeth.

Major media also ignored Martin's criminal history.

At the time of the shooting, he was visiting Zimmerman's townhouse complex in Sanford, Fla., from Miami, where he'd been suspended from school after officials found burglary tools and allegedly stolen jewellery in his backpack.

Previously, police had detained him for pot, firearms and defacing school property. He'd also allegedly been involved in various assaults.

Anonymous said...

The Media Lynching of George Zimmerman III

Everything Zimmerman and his family had said happened was backed up by courtroom evidence. Yet the media concocted a false narrative. In the trial, more than half the prosecution witnesses supported Zimmerman's account of legal self-defence against an aggressive and threatening Martin.

The lead detective testified during cross examination that Zimmerman's statements about what happened that night corroborated evidence Zimmerman didn't even know about at the time. He said under oath Zimmerman was telling the truth that Martin jumped him, sucker-punched him, pinned him down on the ground, smashed his head repeatedly on the pavement, then went for Zimmerman’s gun (which only became visible during the attack) leading him to shoot Martin in self-defence.

Another detective testified Zimmerman's broken nose and busted-up head bled so badly in the interview room she had to provide him with tissues.

Detectives also corroborated what a key eyewitness, John Good, told the court — that he saw from his balcony the 6’ 3” Martin straddling the 5’ 8” Zimmerman on the sidewalk below and raining down punches on his face in a mixed martial arts-style "ground and pound."

The medical examiner, moreover, testified he found traces of marijuana in Martin's system, as well as abrasions on his knuckles consistent with his fists having been used in an assault of the type claimed by Zimmerman.

Sanford Det. Doris Singleton testified that Zimmerman showed no "ill will" toward Martin, echoing an earlier FBI probe finding no racial motive behind the shooting. Meanwhile, Martin called Zimmerman a "creepy-ass cracker" [derogatory term for a “poor white trash” white man] in a text message to a friend — a text the Washington Post edited down to "a creepy man.”

Contrary to MSM reports, this matter is not one in which Zimmerman’s defence needed to invoke Florida’s “stand-your-ground” laws, as the article on the link below makes clear:

http://townhall.com/columnists/jacobsullum/2013/06/26/george-zimmermans-excuse-n1627527/page/full

Ongoing MSM race-baiting has whipped up racial arsonists from Washington to Hollywood who have cited it as proof Zimmerman "executed" Martin out of racism. It's also led indirectly to unprovoked beatings of whites by blacks in Virginia, Illinois and Alabama, who said they were getting even "for Trayvon."

If deaths take place during the rioting that has occurred after the acquittal of Zimmerman — as the police chiefs of Sanford and Chicago and elsewhere fear will happen — the blood will be on the leftist MSM’s hands.

Anonymous said...

The Presidential Lynching of George Zimmerman I

Barack Obama recently held a press conference to sound off about the George Zimmerman trial. This was not the high-minded, deeply personal exploration of racial healing his media cheerleaders are painting it as, but a deeply divisive set of pronouncements from a leftist politician with a racial chip on his shoulder.

Obama told assembled journalists there was “a sense that if a white male teen was involved in the same kind of scenario that, from top to bottom, both the outcome and aftermath might have been different.”

What is he implying here? That a white teenager could have beaten the hell out of George Zimmerman without worrying about getting shot in self-defence? That a jury would have fallen over themselves to convict Zimmerman of murder or manslaughter for killing a white teenager?

After sending his “thoughts and prayers” to the Martin family (but not to the Zimmerman family, currently in hiding after receiving death threats, and probably in need of some thoughts and prayers too) Obama launched into a discussion of “context” that only makes sense if he believes George Zimmerman’s actions were racially motivated, despite all evidence to the contrary:

“But I did want to just talk a little bit about context and how people have responded to it and how people are feeling. You know, when Trayvon Martin was first shot, I said that this could have been my son. Another way of saying that is Trayvon Martin could have been me 35 years ago. And when you think about why, in the African- American community at least, there’s a lot of pain around what happened here, I think it’s important to recognize that the African- American community is looking at this issue through a set of experiences and a history that — that doesn’t go away.

“There are very few African-American men in this country who haven’t had the experience of being followed when they were shopping in a department store. That includes me.

“And there are very few African-American men who haven’t had the experience of walking across the street and hearing the locks click on the doors of cars. That happens to me, at least before I was a senator. There are very few African-Americans who haven’t had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often.

“And you know, I don’t want to exaggerate this, but those sets of experiences inform how the African-American community interprets what happened one night in Florida. And it’s inescapable for people to bring those experiences to bear.”

If “very few African-American men” have escaped those experiences, that’s not a function of their skin colour, but primarily due to how a substantial minority of young black men dress and conduct themselves.

If we’re going to have the frank discussion of racial issues Obama and Attorney-General Eric Holder keep talking about, perhaps we could talk about the difference between ugly racial prejudice and prudence based on experience. It’s not White America that needs an attitude adjustment, but young black men and the “Gangsta Rappa” subculture to which so many slavishly subscribe.

Anonymous said...

The Presidential Lynching of George Zimmerman II

Obama failed to address these issues, preferring instead to highlight the “history of racial disparities in the application of our criminal laws,” and the “historical context” in which “black folks” interpret the disproportionate involvement of African-American young men in the criminal justice system, and the “very violent past in this country,” and the “broad brush” with which “a lot of African-American boys are painted.”

Obama’s collectivist world view really has very little to do with a situation in which a 17-year-old fitting the general description of malefactors in a particular neighbourhood in Florida was trailed and observed by a neighbourhood watch volunteer, then chose to respond by physically attacking the man.

Obama’s remarks about historical context and institutional racism are calculated to ramp up the alienation and anger of protesters. His explicit description of Trayvon Martin as a younger version of himself will anger them even more. Aside from their skin colour, there is little similarity between the lives of Trayvon Martin and the 17-year-old Barack Obama. By inserting himself into the discussion this way, Obama is fanning exactly the presumptions that as President, he should be hosing down.

One of the most important lessons to draw from the encounter between Martin and Zimmerman is, “Don’t confront and attack people because they behave in a manner you find insulting.” Obama has no interest in teaching this lesson, because he’s never been big on personal responsibility. In his world view, people are hapless driftwood carried here and there by a flood tide of impersonal social forces.

Obama's address drags Florida’s “Stand Your Ground” laws into the discussion, even though he admits they weren’t part of the Zimmerman case. He wants to make out that they are, suggesting that they make people like George Zimmerman overconfident and trigger-happy:

“Along the same lines, I think it would be useful for us to examine some state and local laws to see if it — if they are designed in such a way that they may encourage the kinds of altercations and confrontations and tragedies that we saw in the Florida case, rather than defuse potential altercations.

“I know that there’s been commentary about the fact that the stand your ground laws in Florida were not used as a defense in the case.

“On the other hand, if we’re sending a message as a society in our communities that someone who is armed potentially has the right to use those firearms even if there’s a way for them to exit from a situation, is that really going to be contributing to the kind of peace and security and order that we’d like to see?

“And for those who resist that idea that we should think about something like these “stand your ground” laws, I just ask people to consider if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman, who had followed him in a car, because he felt threatened?”

Anonymous said...

The Presidential Lynching of George Zimmerman III

It is entirely unclear what Obama was thinking when he uttered this nonsense. Trayvon Martin did “stand his ground.” He passed up on numerous opportunities to peacefully depart from his encounter with George Zimmerman, who was not interested in any sort of close-range confrontation. Trayvon Martin forced that confrontation to occur.

George Zimmerman did not approach Trayvon Martin with a drawn weapon. He was jumped by Martin, who sucker-punched him, pinned him down on the ground, smashed his head repeatedly on the pavement, then went for Zimmerman’s gun (which only became visible during the attack), leading him to shoot Martin in self-defence.

As the jury found after hearing the evidence, it was George Zimmerman who never had the opportunity to peacefully exit the situation due to Martin’s frenzied attack. This is exactly the type of incident in which a crime victim can legally use lethal force against his assailant.

The truly newsworthy part of Obama’s remarks was the point at which he begins the process of lowering expectations for that federal civil-rights trial the protesters are demanding:

“But beyond protests or vigils, the question is, are there some concrete things that we might be able to do? I know that Eric Holder is reviewing what happened down there, but I think it’s important for people to have some clear expectations here. Traditionally, these are issues of state and local government — the criminal code. And law enforcement has traditionally done it at the state and local levels, not at the federal levels.”

Translation: Since Florida criminal law has exonerated George Zimmerman, let’s have another crack [sic] at him under federal civil rights and hate crime legislation.

US Attorney General Eric Holder has now astonishingly announced the establishment of a national tip line to solicit reports of past racist behaviour by George Zimmerman, with a view to trumping up a federal hate crime suit against him.

The race-mongering Obama needs to instruct his similarly race-mongering Attorney-General to stop wasting time and taxpayer resources on pointless theatrics. Both need to get on with the important business of running a country.

Anonymous said...

From an NZ perspective the fact that Zimmerman was allowed to carry a gun is a large portion of the problem.
If the US could get over its right to bear arms fascination this would not have happened.
Ray

Dave said...

To carry a gun or not, now that I'm classed as a 'senior citizen'I would if permitted think seriously about carrying a gun. Do we have confidence that the Police are proactive enough to prevent assaults from repeat offenders or our judicial system is secure enough that a lot of the real scum bags are out after pitifully small sentences. In Nevada where most people can carry a gun and the law is shoot if someone breaks into your property and threatens you, they have one of the lowest crime rates in America.

Anonymous said...

Talk about trial by media?
The published photo of Trayvon Martin shows a clean-cut innocent Negro boy-this is the only photo published.-5 years out of date!
The truth?-He was a 17-year old tattood kid, suspended from school, suspected of stealing, he was also well-known to the local police as involved in the drug scene.
If President Obama wants this kid as his own, his staff have misinformed him, as the U.S. news media have fooled the whole country!

Anonymous said...

Some people may remember a similar NZ self-defence shooting in which a frail 70+ year old white man with a heart condition confronted a large Maori burglar in his 40s who'd invaded his home in the middle of the night.

The old boy presented a pistol and told the burglar to clear out or face the consequences. The burglar then made at the homeowner with a crowbar he held in his hand, and was rightly shot and killed.

The police put the homeowner through the mill for about three months before making a decision not to prosecute.

Meanwhile, numerous media pundits pontificated about the matter, obscenely picking over (from the confort and safety of their airconditioned newsrooms) a life or death decision someone attacked in the dark had a split second to make.

Disgustingly, the police decision not to prosecute prompted race-baiting Maori academic, Dr Ranginui Walker, to remark "So now it's 'open season' on Maoris."

Like Trayvon, this matter
had absolutely SQUAT to do with race!

Auntie Podes said...

See "A Dagger at the Heart of Justice" (Google it.) And Mark Steyn on this beat-up.
"For those of us who thought we were well informed and weren't.....quite the reality check..
That old adage applies here: "there are two sides to every story."
We don't always get the truth from the media.
One of my favorite rants - the leftist liberal controlled media, television news, newspapers, magazines, radio; all continue to show 12 year old Trayvon; NOT 17 year old Trayvon. In reality "little Trayvon" at the time of his death stood almost 6'2" tall and weighed 175 muscular pounds. He had numerous run-ins with authorities (both at school and local police), had been stopped and almost arrested two days before his death for smacking a bus driver in the face, because the driver refused to let him ride for free.
He was released because the driver was told not to press charges by the bus company and to continue on his route. When "little Trayvon" was suspended at school it was not only because he tried to bring a little marijuana in with him, he was in possession of wedding rings and other jewelry, watches, etc. that he said he "found" along with a large screwdriver while on the way to school that day. The jewelry was turned over to the Police by the school. I am not trying to say this was a good shooting. I am not trying to say this kid deserved to die.
Not a single paper has printed RECENT photos of this kid, because it would not keep your interest in this case.

Not a single paper will admit that this kid was a marijuana dealer.
His friends on Facebook all say he had the "best plants". Not a single paper will show you any of his recent photos where he shows off a mouthful of gold teeth and all of his tattoos. Not a single newspaper will tell the news like it really is ...and NOT how they want you to think it is....
President Obama looked at the FIVE year old photo the media chose to show the Nation and said, "If I had a son....he would look like Trayvon.." So from that comment should I assume you did not bother to look for the facts in this shooting..
or should I assume you want a son who is a 17 year old drug dealing, gold toothed, tattooed thug whose name on one of his Facebook profiles was "Wild Nigga" who "finds" jewelry and burglary tools on the way to school? A fair and impartial news media in the [socialist] USA ? One that does not follow the preconceived leftist liberal agenda? One that is NOT looking to further divide this already fractured nation? I didn't compose this. I'm only passing it on.
Never trust the news media for WHOLE TRUTH and NOTHING BUT THE TRUTH.
The jury saw the REAL TRAYVO."

The press displayed a photo of sweet little Trayton Martin at the age of 12 - a far cry from the tattooed 17 year-old thug who was shot. WHY, one wonders?