OK

At the risk throwing one more diary on to the pile, I do wish to offer some brief thoughts on the George Zimmerman verdict, hoping that my perspective as a liberal criminal defense attorney will add something to the discussion.  As a preface, let me make clear that I am in no way an apologist for Zimmerman.  Although I think an acquittal was the only proper verdict based on the evidence presented, I think that a wrongful death civil suit is highly appropriate, and I think he acted shamefully and wrongfully in getting out of his car with a weapon that night.  

With that said, follow me below the fold.

First, the idea that a criminal trial is generally meant to provide "justice" -- either to society at large or to the victim -- is frought with peril.  Just as one man's art is another man's junk, so too is one man's "justice" another man's "travesty."  A criminal trial should be about one thing, and one thing only: allow a jury to determine whether the prosecution has proved beyond a reasonable doubt a set of facts that constitute the offense (or offenses) charged.  The severe and idiosyncratic consequences of a criminal trial -- one particular defendant being branded a felon and sent to prison for a substantial period of time -- are too great to allow a criminal jury to consider anything else.  The best way to ensure wrongful convictions is to allow criminal cases to become about anything more than the application of admissible evidence to specific legal instructions.  

Second, had Trayvon Martin not punched and/or inflicted physical injuries on Zimmerman, there is every reason to believe that the prosecution would easily have convicted Zimmerman (although one could also argue that Zimmerman never would have fired his weapon in the first place).  This is not to say that Martin acted "illegally" by (apparently) not choosing to make all attempts to flee Zimmerman before physically touching him.  But, under the law, whether Martin had a legal right to defend himself from a perceived threat is not conclusive of whether Zimmerman retained a legal right to use deadly force in return.  Under the law, the merely "following" of someone is not considered the type of provocation that vitiates the follower's right to self defense if a physical altercation ensues.

Third, had the prosecution proven that Zimmerman had brandished his weapon in a threatening manner prior to being struck by Martin, there is every reason to believe that the prosecution would easily have convicted Zimmerman.  This is because Zimmerman would have, at that point, been engaged in an unlawful activity (assault with a deadly weapon) and, as a result, lost his right to self defense in an ensuing altercation.  But the prosecution did not prove beyond a reasonable doubt that, prior to being struck by Martin, Zimmerman had done anything more than follow Martin, which is not itself against the law.

Fourth, the prosecution both overcharged the case and "over-promised" to the jury.  Although I don't think overcharging and over-promising was what caused the acquittal, it certainly didn't help the prosecution.  By overcharging the case, the prosecution was essentially forced to caricature Zimmerman as a seething racist who, in the words of John Guy's closing, "wanted to" kill Martin.  The prosecution never had enough facts to back up those claims, costing it all important credibility with the jurors, who it must be remembered sat through a second-degree murder trial and only at the end were told that they could consider manslaughter as well.  The prosecution's over-promising likewise cost the prosecution credibility.  In particular, the prosecutors' constant reference to Martin as a "child" was a terrible strategic error, because a jury is never going to consider a 6'2" 17-year old a "child."  By using this type of rhetoric as a crutch, the prosecutors likely signaled to the jurors that they didn't have faith in the actual facts.

When I look at the evidence that was presented at trial, the jury probably had a very easy time acquitting Zimmerman, regardless of whether the jurors liked or despised him.  At a minimum, there was a reasonable doubt about whether, before Zimmerman drew his weapon, Martin had punched Zimmerman one or more times in the face, had Zimmerman pinned to the ground, and was doing more than simply attempting to restrain Zimmerman.  Under the law, that is the end of the matter.

So where does that leave us?  It leaves us essentially back to the same place we were in March 2012.  Namely, we should still be asking at least two questions: (1) Why did this happen, and (2) how can we prevent this from happening again (or more often)?  Convicting Zimmerman, despite there not being sufficient facts to do so under the law, does not answer the first question and would have been, at best, a poor answer to the second.

Why did this happen?  I think it is a cop out to say it happened because Zimmerman is a racist.  That a 6'2" male (whether black or white, and regardless of age) wearing slouched jeans and a hoodie can arouse suspicion while walking on the sidewalk of a "gated residential community" at 8 p.m. is not the result of one man's racism.  It is far more complicated than that.  I seriously doubt that Zimmerman sees a "suspect" or "gang member" every time he sees a black teenager wearing slouched jeans and a hoodie.  I seriously doubt, for example, that Zimmerman would have made a non-emergency 911 call and followed Martin had Martin been walking on the sidewalk of the main road from the convenience store.  The uncomfortable truth, quite frankly, is that Martin was walking on the sidewalk of a "gated community," and we have settled our metropolitan and suburban areas in such a racially segregated way that a black teenager like Martin may well look "out of place" in a certain neighborhood (i.e., potentially a would-be criminal) merely by being present there.  In other words, Zimmerman's wrongful assumptions about Martin did not necessarily owe to some idiosyncratic racism (conscious or unconscious), but rather may have owed to deeper sociological patterns of segregation way beyond Zimmerman's control.

How can we prevent this from happening again?  There are several possibilities.  One is to make it illegal to possess a firearm outside of one's home (there is no evidence that Zimmerman would have possessed a gun had it not been lawful for him to do so).  Another legal change would be to make it illegal for a civilian to "follow" another individual, either absolutely or without something like "probable cause," which would foreclose someone like Zimmerman from ever asserting a self defense claim.  We should be very up-front about the consequences of this sort of legal change, however: If that were the law, then Zimmerman would have been guilty of manslaughter even had Martin turned out to be a violent felon who was looking to burglarize a home in the neighborhood.  Such a change in the law would also generally deter civilians from engaging in surveillance activities that may in fact prevent and deter crimes from occurring.  Yet another legal change would be to make it illegal to use deadly force except in cases whe the defendant had a reasonable fear of death (rather than mere serious bodily injury), a standard that Zimmerman might not have been able to meet in the eyes of the jurors. We can also make sociological changes that would make it less likely that the Zimmermans of the world will have suspicions aroused in circumstances where it is unlikely that their suspicions will turn out to be correct.  This goes beyond educating people on race and includes changing how the way we settle our suburban communities (e.g., more integration, less "gated communities," etc.).  Finally, another deeply uncomfortable truth is that we need to educate people that, if you feel that somone (other than a police officer) is following you, the best answer is to always run like hell.  

EMAIL TO A FRIEND X
Your Email has been sent.