Should Convictions Be Hard To Get?

Harlem Holds Vigil For Trayvon Martin

Wilkinson thinks so:

In Texas you can get away with shooting someone to death if they’re running away with your property. That’s insane, and it’s easy to see how a law like that rigs the system in favour of people with a lot of property—a class that remains disproportionately white and male. However, on the whole, our criminal-justice system is so frightfully racist because it’s too easy for prosecutors, not because it’s too hard. Of course, in a racist society, rules that help defendants are going to help the most privileged defendants the most, and that’s maddening. But that shouldn’t stop us from recognising that the least privileged, the most oppressed, the most discriminated against, are far and away most likely to stand accused. That’s why I suspect that a legal system making it harder for the likes of Mr Zimmerman to get away with it would be a system of even more outrageous racial inequity.

Cass Sunstein has a different view:

Reasonable doubt is far more difficult to meet than other legal standards, including “preponderance of the evidence” (used for most civil trials), “clear and convincing evidence” (used for deportation proceedings) and “substantial evidence” (used for administrative agency decisions). To be sure, any doubt must be “reasonable”; the law doesn’t require absolute certainty. But a good defense lawyer is often able to obtain an acquittal even if most jurors essentially agree with the prosecution’s account of the facts.

Among other things, the Zimmerman verdict shines a bright spotlight on the reasonable-doubt standard. Lord Blackstone famously said, “It is better that ten guilty persons escape than that one innocent suffer,” and most people think the reasonable-doubt standard reflects a judgment to that effect.

But that judgment isn’t self-evidently correct. If 10 guilty people escape punishment, then the deterrent effect of the criminal law will be significantly weakened, and wrongdoers will be set free to do more wrong, potentially putting innocent lives in jeopardy.

(Photo: Candida Feliz participates in a candle lit vigil for Trayvon Martin, the teenager who was shot and killed in Florida last year, on July 15, 2013 in New York City. By Andrew Burton/Getty Images.)

So “Stand Your Ground” Did Matter

Legally, it was irrelevant to the case, which hinged on basic self-defense. But listen to one of the jurors explain to Anderson Cooper how she came to her verdict:

COOPER: Because of the two options you had, second degree murder or manslaughter, you felt neither applied?

JUROR: Right. Because of the heat of the moment and the Stand Your Ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.

Geraldo got the jury dead to rights:

COOPER: It didn’t come up, the question of, did George Zimmerman profile Trayvon Martin because he was African-American?

JUROR: No, I think he just profiled him because he was the neighborhood watch, and he profiled anyone who came in acting strange. I think it was just circumstances happened that he saw Trayvon at the exact time that he thought he was suspicious.

The key to her was that Trayvon was allegedly just meandering around in the dark in the rain – but she concedes that that entire description was entirely from Zimmerman. It’s a glimpse into how the jurors balanced a black man’s corpse against a neighborhood watch’s testimony. And how racial profiling to some can seem like nothing of the sort to others.

Dissents Of The Day, Ctd

A reader writes:

I’m completely with your perception of the Zimmerman trial as a real tragedy.  But you made a mistake in your original post that I think requires a correction, or at least a clarification. In your original post you wrote:

I can see two things clearly: when there are no witnesses but the two individuals involved in a fight, and the victim is dead, and you live in a state that provides “stand your ground” immunity for self-defense, then proving a murder beyond a reasonable doubt is hard.

But there was one witness to the actual fight: Jonathan Good.

He testified that Martin was above Zimmerman, straddling him and beating him up before the shots were fired. Good’s testimony – as the only eyewitness – was extremely important.  There were two narratives of the events in question: 1. That Martin was doing nothing when he was accosted by Zimmerman (and shot after a confrontation that Zimmerman initiated), or 2. That Martin attacked Zimmerman while Zimmerman was returning back to his car.  Good’s testimony (apparently) supports the second narrative more than the first (at least that’s what most reporters thought at the time – we’ll have to wait on what the jurors say).

For what it’s worth, I think a manslaughter charge was justified and the jury’s interest in it (asking for additional instructions) proves just how clearly  the state bungled this case. You haven’t dealt with that, but it’s important.  If you don’t believe me, go back to the video of the two closings and compare them.  Prosecutor Bernie de la Rionda yelled and shouted several times during his closing, and when Mark O’Mara opened the defense, the first thing he did was tell the jury he wasn’t going to shout and yell; he was going to change the tone of the discussion and be civil and respectful and appeal to reason.  Even before he got into his argument, when I heard that, I knew he was going to win.

The Good testimony does indeed suggest that at some point in a scuffle, Martin was on top of Zimmerman. But another witness, Selma Mora, testified to the opposite. None had a very clear picture on a dark night. And Good did not witness the actual shooting. Good, moreover, denied Zimmerman’s claim that his head was being smashed against concrete (a critical point if you are claiming self-defense to the point of killing someone); and they all testified that after the fight, Zimmerman was bloodied but not by anything remotely life-threatening. I stand by my original post, although of course, the jury, as my reader notes, was examining every minute and I wasn’t. Good’s testimony might well have swayed them. And, again, I can easily see why they acquitted Zimmerman, given the reasonable doubt of such a confusing incident in the dark.

Previous reader criticisms here.

The Tragedy Of Trayvon: Reax

Responding to George Zimmerman being found not guilty, Joyner writes that “the prosecution handled a weak case poorly and that an acquittal should surprise no one”:

Now, of course, juries sometimes get it wrong. Many innocent men have been found guilty and many people who plainly did what they were accused of doing are acquitted. In this particular case, there’s no doubt, reasonable or otherwise, that George Zimmerman killed Trayvon Martin, a teenage boy who did not deserve to have his life ended. But that wasn’t what the jurors were being asked to decide. Rather, they were charged with deciding whether Zimmerman committed second degree murder as defined by Florida statute. And, as contemptible as George Zimmerman is and as outrageous as Trayvon Martin’s death is, it strikes me as pretty obvious that he did not, regardless of what one believes about what happened after the events we hear on tape end.

I agree, as does TNC:

I think the jury basically got it right. The only real eyewitness to the death of Trayvon Martin was the man who killed him. At no point did I think that the state proved second degree murder. I also never thought they proved beyond a reasonable doubt that he acted recklessly. They had no ability to counter his basic narrative, because there were no other eye-witnesses.

But, in a later post, TNC puts the case in context:

The injustice inherent in the killing of Trayvon Martin by George Zimmerman was not authored by jury given a weak case. The jury’s performance may be the least disturbing aspect of this entire affair. The injustice was authored by a country which has taken as its policy, for lionshare of its history, to erect a pariah class. The killing of Trayvon Martin by George Zimmerman is not an error in programming. It is the correct result of forces we set in motion years ago and have done very little to arrest.

A glimpse at those forces:

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Cord Jefferson likewise connects the shooting of Trayvon Martin to society’s racial prejudice:

It is a complicated thing to be young, black, and male in America. Not only are you well aware that many people are afraid of you—you can see them clutching their purses or stiffening in their subway seats when you sit across from them—you must also remain conscious of the fact that people expect you to be apologetic for their fear. It’s your job to be remorseful about the fact that your very nature makes them uncomfortable, like a pilot having to apologize to a fearful flyer for being in the sky.

Meanwhile, Jazz Shaw dismisses any idea that the trial was about race:

In the post-Zimmerman era, anyone who winds up in a conflict situation where there is a racial difference between the parties can now stand up and say that the villain was profiling the other party. It provides the convenient mental imagery to lump them in with rogue cops and the rest of the story. Don’t look for this to end any time soon. Profiling is the new substitute for discrimination, even if the perpetrator has nothing to do with law enforcement, and I’m betting it’s going to have a long run.

But I fail to see how profiling wasn’t obviously salient in this incident. Zimmerman convicted Martin of being a punk and a would-be burglar because he was black and wearing a hoodie in a complex where burglaries had recently taken place committed by young black men. Implicating an innocent person in that criminal group because he was a stranger, and looked like the criminals, is classic profiling. Charles P. Pierce groans:

[O]f course, this was not about race because nothing is ever about race.

The prosecutors even told us that it wasn’t about race. The defense won its case because this was not about race. The sharp guys and pundits will spend all weekend explaining how race was an element of the events that night, but that the case, ultimately, was not about race. And because this case was not about race, nothing out of our history counts, because our history, here in the land of the free, is not about race, either. Because our history is not about race, a few weeks ago, when the Supreme Court gutted the Voting Rights Act, what happened on the Edmund Pettus Bridge was not relevant. Because our history is not about race, last night, Emmett Till was not relevant, even though a few people inconveniently brought him up. But that was years ago, and the country has changed, and it is John Roberts’ Day Of Jubilee, and this trial was not about race because nothing is about race any more.

Along the same lines, Lisa Wade examines the racial effects of Stand Your Ground (SYG) laws:

[W]hite people who kill black people are far more likely to be found not-guilty even in states without SYG and black people who kill whites are less likely to be found not-guilty regardless of state law.

It’s simple: We are already biased in favor of the white defendant and against the black victim. Stand your ground laws give jurors more leeway to give defendants the benefit of the doubt.  This increases even further the chances that a white-on-black homicide will be considered justifiable because jurors will likely give that benefit of the doubt to certain kinds of defendants and not others. Stand your ground may or may not be a good law in theory but, in practice, it increases racial bias in legal outcomes.

Scott Lemiuex places more blame on our gun laws:

Carrying a deadly weapon in public should carry unique responsibilities. In most cases someone with a gun should not be able to escape culpability if he initiates a conflict with someone unarmed and the other party ends up getting shot and killed. Under the current law in many states, people threatened by armed people have few good options, because fighting back might create a license to kill. As the New Yorker‘s Amy Davidson puts it, “I still don’t understand what Trayvon was supposed to do.”

Unless the law is changed to deal with the large number of people carrying concealed guns, there will be more tragic and unnecessary deaths of innocent people like Trayvon Martin for which nobody is legally culpable.

Steven L. Taylor insists the legal system, however broken, was served:

In point of fact, the courts are supposed to produce an outcome that is commensurate with the laws as written.  As such, if one finds an outcome to be “unjust” is it quite likely that the source of the injustice is not the criminal justice system, per se, but is, rather, the fault of legislators.  Indeed, it is often the fault of the demands of the public (which are frequently contradictory*).  Regardless, the application of the law in a certain circumstance often produces a legally correct (or, at least, a legally consistent and logical) outcome even if the outcome may not be considered “just” in an abstract sense.  And, of course, the question of what is just, both in general and in the specific, is a normative one that is open to disagreement.  Such disagreements, as is often the case with normative disputes, can be quite passionate.

My initial thoughts after hearing the verdict are here.

(Chart via Frontline)

Dissents Of The Day

A reader writes:

The jury was not “all-white,” but consisted of five white women and one black woman. Also, Zimmerman isn’t white.

According to ABC News:

While the court did not release the racial and ethnic makeup of the jury, the panel appeared to reporters covering jury selection to be made up of five white women and a sixth who may be Hispanic.

I used quote marks around “white” for the reason my reader notes. Another:

For someone who “didn’t follow the trial that closely,” the truth of the Zimmerman case is surprisingly obvious to you. You state that Martin “was clearly racially profiled, followed and challenged,” and you call that a “fact”. You further state that “Zimmerman clearly made a decision that led directly to” Martin’s death. Those “facts” were disputed at trial, and a jury – who were especially chosen out of a pool of many for their impartiality, who weighed vastly more evidence and heard more testimony than you, and who spent 12 hours deliberating the case – concluded that those were doubtful claims, not facts.

We don’t know the details of the jury’s deliberations. But no-one disputed the fact that Zimmerman described Martin thus to the cops before he killed him:

Fucking punks. These assholes. They always get away.

And he was told by the cops to stop his stalking. He decided to ignore them. My reader continues:

You make other egregious errors about America’s system of justice. I’m sure many of your readers will point them out to you (such as the fact that a jury of one’s peers is a right of the defendant, not the victim). But if you feel the need to comment about “race in America” again, you first ought to examine your own heart. Why are you so quick to impute racism not only to Zimmerman, but also to a jury whose members are wholly unknown to you? Why are you so quick to assume, with so little knowledge, that systemic racism has so tainted the minds of Americans that our very system of justice is untrustworthy? Why did you feel it necessary to make a bombastic comparison between the manifest wrongs of nearly a century ago (lynchings) with a case where right and wrong is so painfully unclear?

I emphatically do not believe the jury’s verdict was racist; I think they almost certainly made the right call given the evidence and how they were instructed. It was Geraldo who said they were racist. As for the right of the defendant to a jury of his peers, technically my reader is right. But Martin was effectively put on trial as well; and an almost all-white six-person jury of women doesn’t seem to represent either Zimmerman’s or Martin’s peers.

The Tragedy Of Trayvon, Ctd

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A couple of points, one of which is a correction. The “Stand Your Ground” law in Florida was responsible for the delay in the trial, and, by some accounts, the difficulty in getting all the forensic evidence after so much time had passed. There’s little question that it was a law George Zimmerman was aware of. But it was not directly used by the defense in the actual trial, as I suggested, where the case became a classic one of self-defense in a very murky incident in the dark with no reliable witnesses. Josh Marshall has a good post on this nuance – but the Florida self-defense law is the same as in every state but Ohio. Eugene Volokh notes:

Who should bear the burden of proving or disproving self-defense in criminal cases, and by what quantum (preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt), is an interesting question. But on this point, Florida law is precisely the same as in nearly all other states: In 49 of the 50 states, once the defense introduces any evidence of possible self-defense, the prosecution must disprove self-defense beyond a reasonable doubt.

This goes back as far as 1877:

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justiciable.”

The phrase “being without fault” seems problematic to me in this case. Once Zimmerman ignored the police warnings to leave Martin alone and let them handle it, it seems to me he was at fault. And that decision was the critical moment Martin’s life came under threat. With the Stand Your Ground law behind him, Zimmerman kept up his amateur policing. It’s the permissiveness of that law that can cause the emboldening of vigilantes. In the end, though, none of that mattered save Zimmerman’s contention that he had no way to retreat under alleged assault by Martin, and so was justified in killing an unarmed individual.

Still, it’s hard to read stories like this one without wondering how deeply this case may have shifted the sense of some whites that if they gun down kids in hoodies, they’ve got the law on their side. To wit:

In November, black youth Jordan Davis, a 17-year-old Jacksonville resident, was the only person murdered after Michael Dunn, 46, allegedly shot into the SUV Davis was inside several times after an argument about the volume of music playing … At the Gate Station, Rouer said Dunn told her that he hated “thug music.” Rouer then went inside the store to make purchases and heard several gunshots while she was still within the building.

Upon returning and seeing Dunn put his gun back into the glove compartment, Rouer asked why he had shot at the car playing music and Dunn claimed that he feared for his life and that “they threatened to kill me.” The couple drove back to their hotel, and claim they did not realize anyone had died until the story appeared on the news the next day.

What scares the shit out of me is the detail that the alleged murderer did not even blink as he got back in his car. His defense is that the black teens he shot at had a gun, even though no evidence has surfaced to prove that in any way, and that he shot in self-defense. But:

Without solid evidence from both sides and one surveillance video that only shows the story from the inside of the convenience store, this case has a long way to go.

What mindset allows you to shoot into a car full of teens because you hate “thug music”, and drive off as if nothing had happened? The mindset of Geraldo Rivera. I remain of the view that the best response to this case is to repeal these laws that empower vigilantes and all but encourage the murder of young black men – if you can find one alone, with few witnesses, and a semblance of a suspicion.

The Tragedy Of Trayvon

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I wish I could have some sharp response to the Martin verdict except profound sadness. I can see two things clearly: when there are no witnesses but the two individuals involved in a fight, and the victim is dead, and you live in a state that provides “stand your ground” immunity for self-defense, then proving a murder beyond a reasonable doubt is hard. I’m not going to second-guess the jurors, except to say the obvious: if that were a jury of Trayvon’s peers, then I’m a heterosexual.

Equally, I found the way in which many elements on the right brandished their relish at seeing Zimmerman vindicated was more repellent than the identity politics faction that politicized the case. A young black man was dead, after he was clearly racially profiled, followed and challenged. Those facts alone should, in my view, lead to nothing but sadness, not a gleeful turn on the racial merry-go-round.

I didn’t follow the trial that closely largely because of that. There’s no way any of us can know precisely what happened in that violent interaction, except that Zimmerman clearly made a decision that led directly to it. But when an all-white jury in America finds a “white” man innocent of killing an unarmed black man, the resonances are simply undeniable.

The “stand-your-ground” law – when it interacts with race – can come perilously close to a return to the right to lynch black men in America – just for being be in the wrong place at the wrong time, for doing nothing wrong, except wearing a hoodie and carrying some Skittles. Perhaps the best way to react now is to raise awareness about these laws that all but sanction murder because in a one-on-one conflict, in which there are no reliable witnesses and in which one of the individuals is dead, reasonable doubt is a very hard hurdle to overcome. This verdict may give some racist vigilantes encouragement to single out and murder black men with a sense of impunity. That is simply unacceptable, to put it mildly. It is a terrifying reminder of how the past can become present again.

We must respect the jury’s decision. But we need not respect that law. And, unless we are to return to the era of lynching, it needs to be repealed.

Totally Safe For Work

But not safe for a black man. It’s also one reason why we at the Dish have long had a policy of publishing photographs of reality: the corpse of Trayvon Martin:

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This is worth seeing, as this man has no longer any ability to defend himself. It’s reality – a reality most media outlets want to protect you from, as if you were not capable of digesting all the facts about a story or subject, including visuals. These stories – whether the torture of prisoners, the genital mutilation of girls, the war crimes in Syria, the barbarism in Woolwich – cannot be told by words alone. The images force us closer to reality, which is where we need to be to understand our world a little better.