Stand your ground: Race and the Zimmerman verdict
Following the verdict in the George Zimmerman case, there have been a lot of nonlawyers earnestly explaining the law on the internet today. Conservatives feel vindicted; liberals see the verdict as another example of racism that still pervades our legal system - that a black young man can be shot without consequence. Without getting too deeply into the technical issues of the trial, I want to suggest a middle ground that respects the rights of criminal defendants without minimizing the harm done by racism in our society.
As a trial lawyer, I cannot be anything but glad that a criminal defendant received a zealous defense, and was judged according to the rule of law, with the burden on the state. But as a person concerned with social justice, I am still deeply distressed at the evident racism and prejudice that both incited the initial incident, and that contributed to the doubt in its adjudication.
A lot of attention has been spent on whether the defendant's conduct was motivated by racism. Recordings of his conversation with the police dispatcher, who urged him not to follow the victim, and to whom he made some fairly incriminating statements ("These punks, they always get away"), seem to suggest that it was; of course, the defense team then sought to defray this by suggesting that of course he's not racist, some of his best friends relatives are black. This all misses the point. Whether Mr. Zimmerman himself is racist should not decide the legal issues - we don't jail people for that. Though my understanding is that there's strong evidence that he followed Martin because of a perception that the latter was "a punk" and "they always get away" - racist enough, as a motive for incitement of violence. (The fact that he had black relatives hardly exonerates him on this moral charge. It's entirely possible for someone to get along fine with black people who conform to a certain ideal of white culture, but to hate and fear black folks who look more like an urban stereotype. That seems to be what Zimmerman was thinking; and that's still racism. It may be what the jury was thinking, too.)
The critical legal point is that it's not at all clear what happened in the confrontation between defendant and victim - even if Zimmerman was at fault in starting that confrontation in the first place - and under the law, unclear situations should be resolved in favor of the defense. Anyone who decries this verdict as pure racial injustice isn't paying attention. If you care about the plight of criminal defendants - which, tragically, remains an issue of racial justice - then you need to preserve the 'beyond a reasonable doubt' standard for criminal cases.
Likewise, this idea that the 'victim was on trial' is unfortunate, but not, in itself, racism. The defense has to be able to raise certain arguments, including the idea of self-defense; and that necessarily entails suggesting that the victim assaulted the accused. Rather, racism lies in the prospect that this defense was more compelling for a jury in this case than it would have been were the victim a white teenager. That's not a problem that the law can solve by itself. I think we can agree that an evidentiary rule that prohibited such a defense would not necessarily lead to a better world, more free of state oppression for defendants.
Laws prohibiting certain kinds of defenses in criminal cases are not unheard of. A comparison may be instructive: There are 'rape shield' evidence laws in sexual assault cases that prohibit the introduction of evidence of the complainant's sexual history, because "she's a slut, so it couldn't have been rape" was an over-used and inappropriate defense. But in that case, the victim is usually still alive, and testifying about what happened - not possible in a murder case. And more importantly "the victim is a slut, so it wasn't rape" is a nonsense argument; but "the victim was assaulting me, so it wasn't murder" really is not. The former argument skips a critical step. It asks us to infer something about a person's conduct in a particular case, from their general reputation or behavior. In general the rules of evidence seek to minimize that kind of inference. If the defense had been allowed to introduce evidence that the victim was a violent person in general, and so "must have" been the aggressor in this confrontation, then that would have been a more apt comparison; but just allowing them to argue that the victim had been the aggressor here in particular is perfectly appropriate (just as arguing consent in a rape trial is appropriate, if we don't ask a jury to infer consent from the victim's previous sexual history).
The other real racial injustice is that African-American defendants don't seem to be given the same benefit of the doubt that the Hispanic-white defendant here did - either by police when making arrests; by juries at trial; or the media, or because more common murder cases don't generate such attention as gets you a top-flight legal team (Zimmerman's lawyers may have come off as buffoons, but they sure weren't PDs). Again, not a problem the law can really solve, except by allocating more resources to public defense so that everyone gets a legal team ready to go to trial if necessary.
It would be mad to suggest that racism was not a prominent factor in this decision. But it would be just as mad for progressives to willingly reject the idea of rigorous defense for criminal defendants as a solution to this problem. The real solution must address people's attitudes about race and violence, not the legal response to them.
As a trial lawyer, I cannot be anything but glad that a criminal defendant received a zealous defense, and was judged according to the rule of law, with the burden on the state. But as a person concerned with social justice, I am still deeply distressed at the evident racism and prejudice that both incited the initial incident, and that contributed to the doubt in its adjudication.
A lot of attention has been spent on whether the defendant's conduct was motivated by racism. Recordings of his conversation with the police dispatcher, who urged him not to follow the victim, and to whom he made some fairly incriminating statements ("These punks, they always get away"), seem to suggest that it was; of course, the defense team then sought to defray this by suggesting that of course he's not racist, some of his best friends relatives are black. This all misses the point. Whether Mr. Zimmerman himself is racist should not decide the legal issues - we don't jail people for that. Though my understanding is that there's strong evidence that he followed Martin because of a perception that the latter was "a punk" and "they always get away" - racist enough, as a motive for incitement of violence. (The fact that he had black relatives hardly exonerates him on this moral charge. It's entirely possible for someone to get along fine with black people who conform to a certain ideal of white culture, but to hate and fear black folks who look more like an urban stereotype. That seems to be what Zimmerman was thinking; and that's still racism. It may be what the jury was thinking, too.)
The critical legal point is that it's not at all clear what happened in the confrontation between defendant and victim - even if Zimmerman was at fault in starting that confrontation in the first place - and under the law, unclear situations should be resolved in favor of the defense. Anyone who decries this verdict as pure racial injustice isn't paying attention. If you care about the plight of criminal defendants - which, tragically, remains an issue of racial justice - then you need to preserve the 'beyond a reasonable doubt' standard for criminal cases.
Likewise, this idea that the 'victim was on trial' is unfortunate, but not, in itself, racism. The defense has to be able to raise certain arguments, including the idea of self-defense; and that necessarily entails suggesting that the victim assaulted the accused. Rather, racism lies in the prospect that this defense was more compelling for a jury in this case than it would have been were the victim a white teenager. That's not a problem that the law can solve by itself. I think we can agree that an evidentiary rule that prohibited such a defense would not necessarily lead to a better world, more free of state oppression for defendants.
Laws prohibiting certain kinds of defenses in criminal cases are not unheard of. A comparison may be instructive: There are 'rape shield' evidence laws in sexual assault cases that prohibit the introduction of evidence of the complainant's sexual history, because "she's a slut, so it couldn't have been rape" was an over-used and inappropriate defense. But in that case, the victim is usually still alive, and testifying about what happened - not possible in a murder case. And more importantly "the victim is a slut, so it wasn't rape" is a nonsense argument; but "the victim was assaulting me, so it wasn't murder" really is not. The former argument skips a critical step. It asks us to infer something about a person's conduct in a particular case, from their general reputation or behavior. In general the rules of evidence seek to minimize that kind of inference. If the defense had been allowed to introduce evidence that the victim was a violent person in general, and so "must have" been the aggressor in this confrontation, then that would have been a more apt comparison; but just allowing them to argue that the victim had been the aggressor here in particular is perfectly appropriate (just as arguing consent in a rape trial is appropriate, if we don't ask a jury to infer consent from the victim's previous sexual history).
The other real racial injustice is that African-American defendants don't seem to be given the same benefit of the doubt that the Hispanic-white defendant here did - either by police when making arrests; by juries at trial; or the media, or because more common murder cases don't generate such attention as gets you a top-flight legal team (Zimmerman's lawyers may have come off as buffoons, but they sure weren't PDs). Again, not a problem the law can really solve, except by allocating more resources to public defense so that everyone gets a legal team ready to go to trial if necessary.
It would be mad to suggest that racism was not a prominent factor in this decision. But it would be just as mad for progressives to willingly reject the idea of rigorous defense for criminal defendants as a solution to this problem. The real solution must address people's attitudes about race and violence, not the legal response to them.