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.