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.