Some Thoughts on State v. Zimmerman

When the dramatic moral and political outcry quiets, and the distortions of the legal issues and processes cease, a lawyer’s consensus on the case might look like this:

—“Stand Your Ground” was always mostly a distraction. If by this colorful term we mean that there is no duty to retreat when facing a deadly threat, then the majority of states have had such a doctrine for a century. Most American states rejected the English-based duty to retreat in favor of this American rule, once called the “true man rule.”  There is little that is special about the Florida rule, except that it got reenacted in recent years and given this colorful title, and maybe by this reenactment Florida instigated some dangerous impulsive behavior.

—The one “innovation” in the Florida Stand Your Ground law was to allow the defendant to move to dismiss a homicide charge preemptively by demanding a pretrial hearing on self-defense. But Zimmerman never followed this option anyway. The reasoning tells us something important about the no-duty-to-retreat rule: It rarely matters. Try to imagine a situation where someone near you does something that induces in you a reasonable fear that he will kill you or cause you grave bodily injury. How often would it be the case that you would and could save yourself by running away?  Sometimes, but not very often.  Once we grant the premise that your fear of death was reasonable, you will be granted a huge margin of error as to whether retreat seemed feasible. Zimmerman relied on the very conventional principle that regardless of a general duty to retreat, safe withdrawal from the scene was infeasible in his case, and this theory was best played out in a regular homicide trial. If he and Trayvon Martin were, as Zimmerman implied, in a physical entanglement when he shot the gun, he could argue that even had there been a presumptive duty to retreat it would have been excused.

—The murder charge was probably a loser from the start, because it would have required the jury to buy a very extreme anti-Zimmerman narrative for which the State had little evidence: that either Zimmerman had early on decided to kill Martin because he wanted to kill anyone who he thought might be a questionable outsider, or at the very least harbored a hate-driven animus early in the encounter and fired the gun simply because he found Martin annoying or rude.

—The plausible charge all along was manslaughter. Manslaughter can be a lot of things. It can be voluntary manslaughter if a person is provoked into the proverbial heat of passion, but that’s irrelevant here. It can be involuntary manslaughter if that means the gun went off accidentally, but the shooter was culpably negligent or reckless in allowing it to go off. But Zimmerman seemed to concede that at the last moment the gun didn’t go off accidentally—he had shot to kill. That would leave two other ways of getting to manslaughter. (a) Zimmerman had sincerely believed that Martin posed a fatal threat to him, but that perception was unreasonable. (b) Even if at the initial moment Zimmerman was reasonable in believing that Martin posed a fatal threat to him, earlier, initial aggressive action by Zimmerman was what put this scenario in motion. That is, Zimmerman was at fault for following Martin and gratuitously precipitating a dispute that led Martin to threaten him. One of these was always the best case for the State, and there were some facts on these points. But for the jury, not enough, especially because the State had the burden of proof, and because the jury instructions were probably unintelligible, and because some oddities in Florida law also posed obstacles.

—As for the judge and lawyers, it’s always risky to criticize if you were not there dealing with on-the-scene exigencies.  But the judge seems to have made at least one very iffy decision, possibly because she caved to defense lawyer pressure. On the issue of whether Zimmerman was faulty as the original aggressor, the defense argued that so long as his conduct at that point—most notably following Martin even after the 911 operator urged him not to—was not itself illegal, then the initial aggressor issue should not even go to the jury. That was probably wrong. He might have induced fear in Martin by conduct that was foolishly dangerous if not illegal.

—As for the prosecution lawyers, well, they were dealt a tough hand. Their best hope might have been to cross-examine Zimmerman. But this was a rare case of self-defense without defendant testimony. And the reason may be that Zimmerman got to tell his story out of court. But the key out of court statement heard in court, and one that may have helped Zimmerman more than hurt him, was the taped interview with Sean Hannity, brought in by the State. Apparently the prosecutor thought that some inconsistencies between statements in that interview and other things attributed to Zimmerman would be good State evidence. But on the whole the interview allowed Zimmerman to sell a self-serving story. So the prosecution helped the defense by showing the jury a media-staged interview between the defendant and America’s most notorious demagogic shock-jock, someone whose radio and television rants have been pure Zimmerman advocacy from the start. Go figure.

—I lack the wisdom or any distinct power of insight to add to the roiling debate about how race affected the case. Suffice to say that in the United States today, perceptions of possible deadly threats are all-too-often race-inflected.  Race-blindness in resolving a case like this is impossible. Subtracting race from the case was a daunting challenge for the jurors. Race would have been implicit in the legal arguments and was sure to be unmentioned in the jury instruction. But the facts were these:  Zimmerman knew Martin was African-American. Martin may have made assumptions about Zimmerman because Zimmerman was a non-black confronting a black. And trying to surmise how Zimmerman and Martin perceived each other was crucial to this case.

5 Responses to Some Thoughts on State v. Zimmerman
  1. Thanks for this analysis. Yet, I think one of the facts listed is potentially overstated. “Martin may have made assumptions about Zimmerman because Zimmerman was a non-black confronting a black.” In listening to the testimony, I don’t know that it was determined a fact that race played the major factor for Martin in not running away from Zimmerman. Speaking as a female, if I see a man behind me in a dark ally, of any race or ethnicity, without a doubt I am going to flee for safety. Maybe I wouldn’t if I had some way to defend myself; yet I haven’t taken any self-defense classes, I don’t own any weapons, have little to no reason to believe I could overpower a male between the ages of 20-30 and I would of course have to think about the potential of a sexual assault ; thus I believe that If I had an opportunity to flee, I would do it. I think this is because I was socialized this way as a female living in America and made to realize that there are many threats to my safety that I have to be vigilant of and should get away from if possible. In direct contrast, I think most young male Americans, of any race or ethnicity, are more likely to have been socialized not to run and to stand your ground as a response to a threat and to not worry or even consider the possibility of sexual assault (even though it happens to men also). Thus, for that reason specifically, I think there is reason to doubt that Martin made an assumption about Zimmerman because he was a non-black confronting a black or that confrontation by a non-black was more of a factor influencing his actions than his socialization as a male in America.


  2. Thank you for this very reasoned discussion. It was helpful/.


  3. Professor Robert Weisberg’s Some Thoughts on the State v. Zimmerman is the first article I’ve seen that clearly, frankly, and insightfully examines the racial and political issues erupting from yet another violence-provoking and questionable jury verdict involving race and homicide. He prudently avoids criticizing the press for its improperly connecting “Stand Your Ground” to the actual legal issues on which the trial was based and also declines to speculate on the impact race may have had in both the trial and the jury deliberations. Instead, he firmly and squarely criticizes both the prosecution’s tactics and the judge’s mishandling of certain critical jury selection and evidentiary issues.
    I am reminded of a similar case of prosecution bungling and judge ball-dropping that involved issues of interracial homicide: The O. J. Simpson trial. In that case the defendant was Black and was found not guilty by a predominately Black jury. There were no riots after this miscarriage of justice. Perhaps someday Professor Weisberg could point his laser-like intellect at the issue of why there are riots after a perceived miscarriage of justice against a Black person, but rarely, if ever, do riots follow a miscarriage of justice against a White person? With a PhD. in English and a JD from Stanford Law he is certainly qualified to write such an article. His history of color-blindness (e.g., consulting for the NAACP) would quash any allegation of racial bias.
    I have attached three links to sites your readers may find interesting that relate to the issues raised by Professor Weisberg.
    James Luce
    1. Fighting Crimes Where the Criminals Are, NYT, 25 June 2010
    “Based on reports filed by victims, blacks committed 66 percent of all violent crime in New York in 2009, including 80 percent of shootings and 71 percent of robberies. Blacks and Hispanics together accounted for 98 percent of reported gun assaults.”
    2. Race and Crime, Metapedia
    “The report The Color of Crime (2005) by the New Century Foundation states that there are several problems with the official crime statistics in the United States. These tend to cause underestimation of racial crime differences. One example being “Whites” sometimes including Hispanics. Another is not adjusting for that the different racial groups differ in population size. The report reviews the more accurate statistics that is available and describes many large differences in crime rates between races. The report also examines the research on possible bias against racial minorities in the justice system and the police and concludes that bias not a significant explanation for the different racial crime rates. One of the report’s major findings is that of the nearly 770,000 violent interracial crimes committed every year involving Blacks and Whites, Blacks commit 85 percent and Whites commit 15 percent.” [Emphases added]
    3. The O.J. Simpson Trial: The Jury, UMKC School of Law report

    “The final jury was made up of nine Blacks, one Hispanic, and two Whites. Some other facts about the final jury: (1) None regularly read a newspaper, but eight regularly watch tabloid TV shows, (2) five thought it was sometimes appropriate to use force on a family member, (3) all were Democrats, (4) five reported that they or another family member had had a negative experience with the police, (5) nine thought that Simpson was less likely to be a murderer because he was a professional athlete.”


  4. Bob–I agree with you completely on analysis of prosecutorial error. Very serious here. Introducing the interrogation tapes and the Hannity interview was an incredible mistake— first, the defense could never have gotten it in, and second, it enabled the defendant to get his story in front of the jury without taking the stand and being subjected to cross examination. Ideal for a defendant when self-defense is the claim.

    They might have charged second degree– I think most prosecutors would, but not rested their case on it…– leave manslaughter as a compromise for the jury.

    Finally, these witnesses were not prepared properly– especially the poor girl on the phone, and even the expert…prosecutors are used to having everything on their side so they just throw the witnesses up there…doesn’t matter, not likely to have much cross examination anyway–

    Why did these “experienced” prosecutors make such obvious, ridiculous error– 1. not very good. 2 more accustomed to prosecute Trayvon than present him as deserving a verdict in his favor–which they needed to do in this case. If all folks could find against Trayvon and you can believe they tried– was that he smoked dope and used profanity– they could have presented a much better picture of him than came across.

    All brings me back to thinking we need better training for prosecutors and defense lawyers and maybe to train them together.

    Anyway, thanks for your super-perceptive comments.



  5. The crux is NOT complicated.

    Zimmerman’s “provocative harassment of stalking, and ignoring the instructions of 911 operator…showed a reckless disregard for his health, and for the instructions of the Police, and drew expectable anger from Martin. Then, in response to Martin’s fists, Zimmerman shot his gun into Martin, at point blank range…..

    Result: One dead teenager and one “Citizen Caine, Community Volunteer Vigilante”, sent out of the court with not even an admonition to not repeat his actions…

    Something’s rotten here… His Exoneration passes NO SNIFF test.


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