Saturday, July 20, 2013

Martin and Zimmerman

The Anglo-American legal system has developed over many centuries.  Most Americans probably have no idea that the colonists in the 17th and 18th centuries brought English common law principles with them and that English precedents are routinely cited in US court opinions even now.  Trial by jury, the adversary process, and the presumption of innocence are all inherited from the British.  They often disappoint Americans in individual cases because they do not seem dedicated to establishing the truth.  What Americans do not understand is that the alternative to verbal combat in the courtroom is armed combat in the streets, rather like what occurs today in Russia or in many lawless neighborhoods and regions of the world.  If citizens are going to trust their fellow citizens with their property, their freedom, or even their life, they have to be free to hire lawyers who will fight as hard as they can for them.  The public expects the same of its prosecutors, who will indeed do anything they can legally get away with to secure a conviction.

Yesterday President Obama redefined the case as a problem of racial profiling.  To some extent it undoubtedly was: Martin looked to Zimmerman like a suspicious punk in part, undoubtedly, because he was black. (I heard one civil rights leader say on PBS that all of the more than 40 calls Zimmerman had made to the police as part of his neighborhood watch related to black men, but I don't know if that is true.)  But all the same, that in itself did not lead to Martin's death.  Martin would almost surely be alive today if Zimmerman had waited for the police to arrive--or if Zimmerman had not been allowed to venture out onto the street armed to confront a stranger.  The real problem illustrated by the case is the vigilante culture, long a feature of life in the southern United States, which I discussed at length more than a year ago when Martin's death first became a national issue, on April 6, 2012.  In the South as in the Old West, it has long been a tradition that there is something noble about taking the law into one's own hands, as Scarlett O'Hara did when she shot a Yankee soldier who presumed to cross the threshold at Tara or Rhett Butler did when he killed a black man who he thought had insulted a white woman.  (The original post went into this at length.)  Zimmerman took advantage of Florida's easy laws on concealed weapons--laws that are similar to those of many red states--to follow Martin armed.  He was probably familiar with the "stand your ground" law--which the judge did mention in her charge to the jury as a possible defense of Zimmerman's behavior--which allowed him unhesitatingly to use his weapon when things turned violent.  And that is what he did.

Weirdly, the Zimmerman trial now raises some of the same issues as the Eichmann trial that I discussed last week.  We are experiencing the same difficulty the Israelis did, as documented by Hannah Arendt: the problem of reducing the trial simply to the facts of Zimmerman, the accused, did or did not do.  He, like Eichmann, is being tried for the real and presumed crimes of a larger group, racist or frightened white people who assume the worst about young black men.  But he was actually on trial for second degree murder or manslaughter, under laws which would make it very difficult to convict him of either one.  Second-degree murder requires intent to kill; manslaughter requires intent to injure.  But neither would apply of Zimmerman felt genuinely under attack by Martin, and there was evidence that he did.  Certainly there was no clear proof that we was not under attack, which is what would have been required, it seems to me, to have found him guilty on either charge.

Yet many of us are deeply troubled because of the other obvious fact about the case: that if Zimmerman had minded his own business or waited for the cops, Martin would be alive today.  I heard another legal expert say that nothing Zimmerman did that night before the violent confrontation was illegal.  That surprised me because it is my understanding that, at least in theory, even a policeman needs some probable cause to think a crime may be committed to stop and question a citizen on the street, and thus one would think that the same rule would apply to a private citizen.  Several lawyers, including a criminal defense attorney, read these posts and I would appreciate any comments from them.  But what allowed Zimmerman's behavior to become fatal to Martin was the right to carry a concealed weapon.  Many--perhaps most--states had reserved that right for people like security guards who had a specific need for one, but now permissive legislation is as much a part of the typical red state legal code as abortion restrictions.  The NRA, one of our most powerful lobbies, wants laws like that everywhere.  It apparently welcomes a world ruled by swift vigilante justice.

I hope that the Justice Department does not charge Zimmerman with a civil rights violation or a hate crime.  I have never believed in the concept of hate crimes anyway--murder is murder and while motive is part of every trial, it should not create separate laws.  But in this case any new jury would have to deal with the same lack of knowledge of what happened.  Only a totally politicized jury, it seems to me, would be able to decide that Zimmerman killed Martin because he hated him as a black man, not because he was in the middle of a fight and possibly getting the worst of it.

The red states are culturally a separate nation, as I argued in April 2012.  The President would not touch this issue.  He stuck to the issue of profiling to meet the concerns of part of his constituency, and because he claims to have experienced it himself.  I am no one to claim that he has not, but I don't think profiling was the critical issue in this case. Vigilante behavior was.  That behavior is now legal in much of America and no one dares to take it on.

10 comments:

Bozon said...

Professor
Thanks for this post.
I had not followed the trial, except casually, reading articles intermittently. I may post a comment about the case but this seems too much by itself for one comment.

all the best

Re crimes, I found these definitions on a 2012 website, re Murder versus manslaughter. They have some archaic language:

Murder 2
(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

Manslaughter
782.07 Manslaughter; aggravated manslaughter of an elderly person or disabled adult; aggravated manslaughter of a child; aggravated manslaughter of an officer, a firefighter, an emergency medical technician, or a paramedic.—
(1) The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084..........
(2).......
(3) A person who causes the death of any person under the age of 18 by culpable negligence under s. 827.03(2)(b) commits aggravated manslaughter of a child, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Bozon said...

PS:
I actually am a state licensed (weaponless) security officer under Florida law. It requires a 40 hour course if one takes the more rigorous ones, and payment of about $200.

One can go on in the same way and get a weapon license here, for about the same cost, in the same time.

all the best,

Bozon said...

Professor
Because I paid so little attention to this case, my comments would not be eliminating enough to warrant disseminating I am afraid.

I once did handle a second degree murder.

It was cut and dry, so to speak, compared to the Zimmerman case.

I had an attempted murder, which left a quadraplegic so-called victim, much closer to the Zimmernan case, but no need to go into that here.

all the best

Larry said...

I agree with all your positions here David. If this case does anything though I hope it raises the consciousness of people as to how detrimental to innocent lives the "stand your ground laws" can be, especially that part found in section 3 of the Florida law that states "A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

This essentially says it's open season season on anyone who angers us when we are out and away from our homes.

This Florida stature comes from a model law framed by the NRA in collaboration with sympathetic legislators from an ALEC conference, that body that puts corporate special interests and law makers in the same room to promote legislation that benefits a given business interests. The NRA , as we all know , is more so a lobbyists for the gun industry than they are the organization that started out back in the 19th century to train our military in the effective use of weapons.

Such legislation is designed primarily to increase the sell of firearms and their ancillary gear to boost profits

DAngler said...

Professor,
All you say is exactly true. What can be added, however, is the fact that the police are not an effective deterrent of crime in neighborhoods such as the one Zimmerman and Martin lived in. Crime runs rampant, and the police either don't have the resources to reduce it, or they won't spend those resources in that neighborhood.

Vigilante-ism tends to rear its head in communities where the rule of law is least effective.

I don't condone Zimmerman at all. What he did was wrong and stupid. But his actions were the result of a community group trying to do a job they were not trained to do -- and were not empowered to do. They formed the community watch group because the police were not effectively enforcing rule of law in that community. I therefore place much of my blame on the police.

Trevon Martin's death is a tragedy. And so is Zimmerman's vigilante-ism. Both avoidable if their community had effective rule of law.

In my mind the greatest long term tragedy is that some communities have so much rule of law and others have so little.

The next obvious question is whether the lack of rule of law in their community was/is because of "overwhelming lawlessness" within its citizenry, or because of "apathetic enforcement of rule-of-law" by the police? We could argue which is the most important until the moon turns blue, and we'd not convince anyone otherwise. So what is more telling is that regardless of the cause, the cure remains exactly the same. So quit arguing about the cause, and effect the cure: Enforce rule of law.

Ray C Neill said...

Your analysis of the Zimmerman acquittal raises more questions than answers and more discussion than resolution. To begin, the issue of probable cause, of course, is the Fourth Amendment protection of any unreasonable search and seizure to prevent the abuse of power by an authority. Private citizens cannot abuse a right that they do not have, therefore, the need for probable cause is, for them, a moot point. Readers who would suggest that the public does possess an abusable power by what is commonly known as making a "citizen's arrest" should be aware that they are dealing in the muddy waters of an archaic law with variant interpretations and specific rules making it wise to avoid attempting its use at all costs.
We will probably never know if Zimmerman's pursuit of Martin was a premeditated attempt to provoke him so that deadly force was justifiable. The evidence presented, however, supported Zimmerman's testimony and as the trial proceeded and the prosecution faltered the verdict seemed self evident to me. Sadly, despite the legal system's combative nature, there are no winners here. A boy is dead and a man carries the psycho-social burden of his action. Further litigation is unlikely due to the cost/benefit prospect and the affected parties must now move on.
Even though Stand Your Ground legislation woven loosely into the self-defense argument was not really at the crux of this case, it has raised some issues that are worthy of discussion. Ironically, a case could be made that SYG has actually made the streets more dangerous. In Florida alone, with its population of 20 million people, there are approximately 1 million permits to carry concealed weapons. Could SYG legislation tilt the moral compass of any of those individuals ? I suspect that it could and, as such, makes the law subject to abuse. SYG does not force you to evade or retreat from a dangerous situation but it is specifically a defensive tactic and it should not unwittingly shelter an aggressor from liability.
Since all rights come with responsibilities and the right to bear arms is so deeply entrenched and protected, there must always be a counterweight legal responsibility of due diligence to avoid the use of those arms. Self defense and vigilante behavior are not the same thing and I don't feel that the jury's decision supported or condoned vigilantism in any way in this case. Martin's behavior sealed his fate and, unfortunately, courtrooms are places of law and not always justice. If Zimmerman had been legally bound to demonstrate a prudent attempt to avoid the confrontation or if Martin had been able to see that Zimmmerman was armed the results would likely have been very different. Ray C. Neill

silvertime said...

Hello:

I simply must comment on your assertion that the alternative to our adversarial system of justice is nothing but anarchy. That is not true. It certainly is true that our adversarial system is not dedicated to finding the truth. It is simply a contest between two or more adversarial attorneys and the state. Nothing more. Any truth that comes out of it is accidental.

Bruce Wilder said...

I cannot agree with your analysis. Zimmerman's behavior resulted in the death of an innocent teenager, and Zimmerman ought to be legally culpable for that behavior. If we don't want self-appointed vigilantes menacing innocent people, and then shooting them, we are going to have to make that behavior illegal. If we cannot manage that, then . . . let's stop moralizing and get on with the slaughter.

Zimmerman, by bringing a loaded gun to a fistfight, was engaged in a kind of negligence, which should have made him liable to a charge of manslaughter, but for SYG muddying the evidentiary ground concerning what it means to provoke a combat.

So, instead, many blame Trayvon Martin, including some of your commenters. It's human nature. Until the Trayvon Martins are armed, and shooting the George Zimmermans down, we won't see any great interest in fairness.

The characteristic fairness of English law owes a great deal more than is generally acknowledged to French guillotines. And, the current authoritarian trend in law is not isolated to the desire of gun manufacturers to increase their market's size -- it also has to do with the inability of Obama to prosecute wealthy and predatory banksters or official torturers, and his enthusiasm for persecuting protestors and whistleblowers and truthtellers. As long as the relatively privileged feel that the law immunizes them, fairness will be a stranger in the courtroom, and the law will simply be what it has always been, a weapon of the powerful against the powerless. Suffer -- no one cares.

wmmbb said...

And, the adversarial legal method depends on what quality of lawyers a party to the case can afford.

I notice that George had no problem calling the police, but for whatever reason, Trayvon did not. It appears, and I say this as a foreigner, that the vigilantes seemingly are color-coded.

The other aspect I noticed is that jury, was not a "jury of peers", either with respect to George, or Trayvon. I thought that was a fundamental to due process of justice.

Roger Bigod said...

My understanding is that manslaughter doesn't require "intent to injure". Careless driving that results in a death would be manslaughter.