Thursday, July 18, 2013

An Avoidable Tragedy – I. Legally Sound but Lacking in Justice

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.


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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