We were on our way out the door to dinner Saturday night
when the verdict in the George Zimmerman trial was announced. Not guilty of
anything, the jury had decided. Though I had not eaten all day, I suddenly lost
my appetite, feeling sick to my stomach. It was the same nauseous feeling I had
experienced 22 years ago in Berkeley when I heard the verdict from the Rodney
King trial.
Very
Little to Agree Upon
There was very little about this entire event that would
allow anyone with a conscience to be comfortable. The trial involved the
killing of a black teenager returning from a convenience store with a pack of
candy and a can of tea in is hands. He was killed by a rather unfortunate young
man of limited intelligence and largely unrealized ambitions with a German last
name and a Peruvian mother. George was ostensibly acting under the auspices of
Neighborhood Watch that night and dutifully reported a young man walking
through a gated community to 911.
Everyone agreed on these facts. But that’s where the
agreement ended.
The 911 dispatcher thanked Zimmerman for his reporting
and instructed him that police were on the way to handle the matter. The
dispatcher told Zimmerman not to do anything further. But George had other
ideas. He left his vehicle armed with a gun. And moments later, Zimmerman
emerged with a banged up head. Trayvon Martin, the 17 year old he had been
following, lay dead from a gunshot wound.
In most cases, the killer would have been charged on the
site. Indeed, had the parties been reversed and the young black male with a gun
had greeted police, I have no doubt he would have been immediately charged – if
not shot himself - and taken away in handcuffs. But that did not happen in this
case. And what did ensue was, from my perspective, terribly problematic from
its inception.
Stonewalling
One of the officers who responded to the scene
recommended in his report that the assailant be charged with manslaughter. His
fellow officer recommended no charges be brought in light of Florida’s Stand
Your Ground law. The latter had taken the micro-view, interpreting only the immediate
encounter as legitimate self-defense. The former had seen it as the logical
outcome of the entire chain of events leading up to the shooting, the
macro-view.
The latter officer’s recommendation ultimately prevailed
but not until after a highly unusual intervention from the 18th
Circuit State Attorney. This elected public official, charged with the criminal
prosecutions in a circuit of over a million residents in two counties, came to
the county jail at 4 AM to tell the Sanford Police Department not to charge the
crime.
Frankly, this NEVER happens in ordinary operations of the
criminal justice system.
The Code of Professional Responsibility under which we
attorneys agree to practice states as one of its ethical considerations that
attorneys should never act in ways which violate the law or our code of ethics
or to even act in a manner which “gives the appearance of impropriety.” How
improper does an unprecedented middle of the night intervention by the State
Attorney himself to prevent a killer
from being charged with a crime appear? How much more improper does that appear
when it is revealed that the assailant is the son of a retired judge in the
neighboring circuit?
It would require a national outburst to prompt the state
of Florida to act. The state Attorney General Pam Bondi said she was
considering the case but stalled for two weeks and did nothing. Pressures were
mounting from around the world and demonstrators daily converged on Sanford’s
courthouse to protest the lack of action.
Finally, when US Attorney General Eric Holder announced
that his office would investigate the case, Rick Scott, the highly unpopular
governor of Florida announced he was appointing a special prosecutor out of the
Jacksonville office to consider prosecution. The new prosecutor ultimately
charged Zimmerman with second degree murder, a charge I had said at the time
was probably not sustainable given the evidence even as I thought manslaughter
or criminal negligence could have been.
The run-up to the trial was a media feeding frenzy. Every
talking head in America offered an opinion undaunted by their own lack of evidence.
Right wing pundits stoked fears of racial rioting if the prosecutor did not
charge and successfully prosecute Zimmerman constructing Zimmerman as a martyr.
Left wing pundits attempted to make the
trial a racial litmus test even though Zimmerman was himself a man of
color. The local news channel preempted
all other programming to televise the trial. No doubt their commercial sponsors
were smiling all the way to the bank even as news of anything else happening in
the world was ignored and supplanted by the infortainment surrounding the
trial for 25 solid days.
The
Verdict: Legally Sound but Lacking in Justice
In the end, an all-female jury of five white women and
one Latina came to a unanimous conclusion that the state had failed to prove
its case beyond a reasonable doubt. While the verdict surprised me, I admit
that I had not watched the trial and largely avoided the discussion of it over
the 25 days it ran. And upon reading a number of analyses of the trial
including a rather scathing assessment of the prosecution by famed defense
attorney Alan Derschowitz, I have come to two conclusions.
The first is that the verdict appears to be legally
sound. Much like the verdict in the O.J. Simpson trial, the question came down
to whether the jury believed the state had proven their case, not whether the
accused was actually guilty of the crime. In the Simpson trial the answers were
no, the state didn’t prove the case even though the accused probably did
commit the crime as the later civil proceeding was able to establish.
Similarly, in the Zimmerman case, the state’s argument
that Zimmerman acted out of animus proved a weak link despite his recorded
ranting about “those assholes” who “always get away with it.” Moreover, the
events between the car and the fatal gunshot were debatable.
It was also clear to me almost immediately that the
state’s primary witness testifying about her telephone conversation with a
terrified, fleeing Martin would not be seen as credible by the white public and not
surprisingly the virtually all white jury saw it the same way. When pundits began
to describe the witness as Precious, the obese woman presumed to be retarded in
a recent blockbuster film of the same name, the handwriting for the prosecution
appeared on the wall.
Finally, Zimmerman clearly had taken a pounding that
night and had the bruises and bloody skinned head to show for it. Of course,
that’s hardly surprising coming at the hands of a teenage boy in fear for his
life, a fear that ultimately proved well founded. The defense was able to
parlay those injuries into a self-defense micro-focus which completely ignored
the macro-context in which it arose and that ultimately carried the day.
But while the verdict was legally sound – and had I been
on the jury I might have come to the same conclusion on the case as prosecuted and
with the jury instructions presented -
it ultimately was highly problematic in terms of justice. And, as the
Simpson and the King cases exemplify, this is hardly a rare occurrence.
Legal Positivism and Biblical Literalism
What is legal and what is just are often not the same
questions in America. Indeed, the second
question is rarely even raised in American courtrooms. What is legal and what
is just may be related but not necessarily. And in American jurisprudence, they
don’t have to be.
Given my time in both the courtroom and the pulpit, let
me offer an analogy. Legal is to just as biblical literalism is to the academic
study of religion. The former is reductionist by design, looking only at the
immediate text and often operating out of largely unarticulated presumptions.
The latter is a much fuller examination, presuming the text to be
incomprehensible without a consideration of context – what are the conditions
under which these ideas arose and were understood - and subtext – who is
writing, to whom and for what purposes.
The legal system in America operates out of a premise of
legal positivism. A caricature of that philosophy might be seen in the 1960s
crime show Dragnet whose beloved
character Sgt. Joe Friday would often respond to witnesses being interviewed,
“Just the facts, ma’am.” Legal positivism requires parties to legal proceedings
to look only at the immediate aspects of the case without consideration for the
bigger picture in which context and subtext help make sense of those aspects. Reasonable
doubt is all that is necessary for acquittals and this standard evidences skepticism about seeing the events in any big picture – a skepticism that is implicit
in legal positivism.
Positivist judges simply do not consider the justice
issues in any case they try, they only consider what the law says on its face
and how the facts admitted by the evidence code relate to that law. And they
instruct their juries to do likewise. Hence it is entirely possible for a
verdict to be returned, as in this case, that is legally sound but lacking in
justice given the context of the case.
Legal positivism is an inherently conservative approach
to the law. Its ability to avoid questions of justice serves the interests of
those who enacted the laws often at the expense of the powerless who are targeted
by the law. It thus freezes into place the values and practices of the status
quo and its beneficiaries and does not permit those priorities to be
questioned. A common refrain in positivist appeals court decisions runs along
the lines of “If you don’t like the law, change it. It is not the role of this
court to make the law.” It is a rather common means of avoiding
recognition of the tyranny of the majority. It’s also an incredibly cynical
response in light of the injustice and the disparity of power so often implicit in the status quo.
That’s how the Zimmerman jury managed to return a verdict
of not guilty on any charges leaving a teenage boy dead and his killer facing
no criminal sanctions. Subsequent civil proceedings with lower evidentiary
standards may ultimately provide some kind of accountability for Mr. Zimmerman.
The civil law’s “but for” test would certainly allow the context of the
assailant’s refusal to follow the directions of 911 dispatchers to be
considered by the jury - but for that
conduct, Trayvon Martin would probably still be alive. Whether that case will
be pursued remains to be seen.
The Zimmerman case has been highly revealing to me as a
former criminal defense attorney who routinely found himself frustrated with
the narrow focus of the legal system in routinely processing cases totally
absent of any consideration of context and subtext. My MBTI temperament reveals a very strong iNtuitive and Perceiving character which means that I am
predisposed to believe that without looking at the big picture, the immediate
picture is simply incomprehensible. Little wonder I left practice as an
attorney for the academy where concerns for context and subtext are the bread
and butter of our profession. Though I was effective as an attorney, I was
poorly suited for a profession which operated within the narrow confines of the
legal system.
But I want to return to the difference between legally
sound and lacking in justice here. If we presume that the legal system largely
turns on the letter of the law while justice requires a consideration of
context and subtext, what issues would have to have been considered here to
render a just – as opposed to a merely legally sound – verdict? What aspects
and values of the status quo had our legal positivist system frozen into place
in this particular trial?
This entry continues in Part II.
++++++++++++++++++++++++++++++++++
The
Rev. Harry Scott Coverston, J.D., Ph.D.
Member, Florida Bar (inactive status)
Priest, Episcopal Church (Dio. of El Camino Real, CA)
Instructor: Humanities, Religion, Philosophy of Law
University of Central Florida, Orlando
If the unexamined life is not worth living,
surely an unexamined belief system, be it religious or political, is not worth
holding.
Most
things of value do not lend themselves to production in sound bytes.
++++++++++++++++++++++++++++++++++
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