FINAL THOUGHTS ON THE GEORGE ZIMMERMAN TRIAL

July 15, 2013

From the start, I have made no secret of my opinion of the George Zimmerman prosecution. When the State filed formal criminal charges against Mr. Zimmerman, I explained the legal strength of Mr. Zimmerman's case. I also described the probable cause affidavit, which alleged Second Degree Murder, as woefully inadequate. The affidavit was not only short on evidence, but it also omitted material facts, which suggested Mr. Zimmerman's immunity under the law. Finally, during the trial itself, I wrote: This prosecution is less about justice, finding the truth, and adherence to the rule of law, than it is about offering a sacrificial lamb at the table of political expediency.

Of course, it is undeniably true that the death of Trayvon Martin was a terrible tragedy. He was a young man in the prime of his youth, who was doing nothing wrong when George Zimmerman pulled over his car and called the police. Let me say forthrightly, that I believe that Mr. Zimmerman acted with profound irresponsibility on the night of the shooting. That said, the prosecution was well aware that it had neither the facts nor the law to prove Mr. Zimmerman's guilt.

As attorney Don West said, "the prosecution of George Zimmerman was disgraceful." It was, indeed. Let me explain why.

The stability of our society, as well as the protection of our individual liberty, depends upon the fair and even application of the rule of law. In our country, we do not prosecute individuals based upon emotion, or feelings of rage, or on assumptions; we prosecute individuals based upon evidence, in the form of testimony and exhibits. Our system is premised upon the realization that no human government can fulfill the promise of true, absolute justice (what some would call "divine justice"). Thus, what we strive for is what is in our power: the orderly, logical application of a system of law.

Foundational to our system of law is the recognition that all men and women are presumed innocent, unless and until they are proven guilty, beyond and to the exclusion of every reasonable doubt. As a starting premise, we recognize that all men and women deserve a fair trial, which requires that the government share with the Defense all of the relevant evidence before trial, particularly if the evidence is exculpatory. Lastly, we depend upon the government to faithfully and evenly apply the law to all individuals, even if the law favors the rights of the accused.

Under no circumstances can our society, or our individual liberties, survive in an environment where the government selectively applies these immutable principles of law. As Saint Thomas More says in the masterpiece, A Man For All Seasons, "This country is planted thick with laws, coast to coast; man's laws, not God's. And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

To be sure, it is not always popular to provide the "Devil" benefit of the law. John Adams didn't ingratiate himself with the people of Boston when he defended the British soldiers accused of massacring a crowd of unarmed civilians in 1770. Nor did the character Atticus Finch, in Harper Lee's To Kill a Mockingbird, take a popular position when he defended Tom Robinson of raping a white woman in the segregated South. In both instances, however, these men--both fictional and nonfictional--not only defended their clients, but they also defended the rule of law from the angry emotions of the mob.

Regardless of whether anyone disagrees with the policy, the law in the State of Florida is clear and settled: the State may not prosecute anyone for Murder or Manslaughter (or any other violent offense), unless the State has probable cause to believe that the killing was not committed through the use of justifiable deadly force. That is the law; the application of which preserves our collective liberty.

The original investigators, as well as the State Attorneys Office of the 18th Judicial Circuit, knew this well when they initially investigated the case. They were aware that Mr. Zimmerman was invoking self-defense from the start, even before the arrival of police. They were aware of Mr. Zimmerman's injuries, which included an apparent broken nose, lacerations, abrasions, and bumps on his head. They were aware that an eyewitness had seen Trayvon Martin "beating up" George Zimmerman, "MMA style," "ground and pounding" Mr. Zimmerman's head. They were aware that the same eyewitness heard Mr. Zimmerman crying for help. They were aware that the muzzle of Mr. Zimmerman's gun had made contact with Mr. Martin's sweatshirt, but that it didn't make contact with Mr. Martin's body, which indicated that Mr. Martin was likely on-top of Mr. Zimmerman at the time of the shooting. They were aware that Mr. Martin's body manifested no bruising or cuts or abrasions that would indicate Mr. Zimmerman had struck Mr. Martin prior to the shooting.

In short, the original investigators were aware that they had significant and compelling evidence corroborating Mr. Zimmerman's statements.

In other words, not only was there not probable cause to disbelieve Mr. Zimmerman's version of events, but there was probable cause to believe that Mr. Zimmerman's actions complied with Florida Statute.

Indeed, under Florida law, even the individual provoking the fight is immune from prosecution, if, at the time the provocateur acted in self-defense, the provocateur had exhausted all means of escape. As we know, an eyewitness saw Mr. Martin pinning Mr. Zimmerman down "MMA style," shortly before the shooting. What's more, in corroboration of Mr. Zimmerman's statement, law enforcement observed that Mr. Zimmerman's back was soaking wet and covered in grass. The gunshot itself was close-range, and, as already stated, was consistent with Mr. Martin having been on top of Mr. Zimmerman. In such a position, there simply was no avenue of escape.

That said, there was no evidence Mr. Zimmerman had provoked the fight in the first place, either as a matter of law or as a matter of fact. It is a logical fallacy to presume that because Mr. Zimmerman got out of his car, he necessarily accosted Mr. Martin. Applying the foundational legal premise that all men and women are presumed innocent, the original investigators were not willing to presume Mr. Zimmerman's guilt in the absence of evidence.

Unfortunately, the organized political pressure of special interest groups prevailed. State Attorney Angela Corey, as well as her assistants Bernie de la Rionda, John Guy, and Richard Mantei, willingly "cut a great road through the law, to get at the Devil." In their probable cause affidavit, they omitted any reference to Mr. Zimmerman's injuries, or to eyewitness statements that Mr. Martin was "ground and pounding" Mr. Zimmerman. Essentially, they ignored Mr. Zimmerman's constitutional right to a presumption of innocence, and instead chose to prosecute Mr. Zimmerman on "what-if's" and speculative hypotheticals.

They accused Mr. Zimmerman of Second Degree Murder, alleging that he acted with "ill will, hatred, spite, or an evil intent," based entirely upon Mr. Zimmerman's statements: "these assholes always get away" and "fucking punks." However, as the prosecution was well aware, these facts fell far short of Second Degree Murder under Florida law. As the 4th DCA recently stated:

"Florida courts have held that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. 'Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim.' Moreover, 'hatred, spite, evil intent, or ill will usually require more than an instant to develop.' While the jury may reasonably reject the theory of self-defense in a case involving a defendant's impulsive overreaction to a victim's attack, such a case warrants a conviction for manslaughter, not second-degree murder."

Logically, if saying the words "these assholes" and "fucking punks" converts a Manslaughter into Second Degree Murder, then there is no meaningful distinction between the two crimes. One would rightfully imagine that most manslaughters, at least those that occur in the context of physical confrontations, involve the use of colorful language. For the prosecution, however, neither the law nor logic was ever much of an impediment.

Having suspended the presumption of innocence, and having disregarded controlling authority on the requirements for Second Degree Murder, the prosecution proceeded to depart from standard investigative procedures. Desperate for a witness who could provide testimony that George Zimmerman provoked Trayvon Martin, the State accepted the assistance of the Martin family legal team, who delivered Rachel Jeantel. Outrageously, the prosecution interviewed Ms. Jeantel in the presence of Mr. Martin's mother. It is only natural to assume that the State took this unethical and bizarre approach to ensure that Ms. Jeantel stuck to the party line. Nevertheless, she lied under oath. Of course, that was not a worry for the State. Far from establishing the State's desired narrative, she testified at trial that Mr. Martin called Mr. Zimmerman a "crazy ass cracker" and used the "N-word" to describe Mr. Zimmerman. Still, not a worry for the State. Happy that she had finally added a new twist to her story, in which she now claimed--for the first time--that Mr. Martin said the words "get off, get off," the prosecution called her to the stand.

In addition to ignoring the presumption of innocence, disregarding controlling legal authority, and departing from standard investigative procedures, the State also abandoned its lawful discovery obligations. The Defense didn't learn about a series of photographs discovered on Mr. Martin's phone, which included images of a handgun, marijuana plants, and Mr. Martin bowing smoke, until a whistleblower stepped forward (who, surprise-surprise, has since been fired). What's more, the State significantly and unjustifiably delayed in disclosing to the Defense information pertaining to text-messages and videos, which included references and images of Trayvon Martin participating in organized street fights. In one of the videos, two of Mr. Martin's friends beat up a homeless man, with the implication that Mr. Martin videoed the assault. Regardless of their admissibility, these text messages, videos, and images were clearly discoverable. The Defense has filed a Motion for Sanctions, which the Court has yet to rule on.

During trial, the State all but admitted it had no case against Mr. Zimmerman. John Guy repeatedly asked the jury to "use their heart" and convict Mr. Zimmerman; presumably because if they "used their heads," they'd have no choice but to acquit. Something is wrong with the system when a prosecutor doesn't appeal to the evidence, but rather appeals to feelings and emotion.

For all of these reasons, the prosecution of George Zimmerman was disgraceful.

To be sure, the context of this case illustrates part of the ongoing struggle of being black in America. Trayvon Martin was doing nothing more than walking home with Skittles and iced-tea, when George Zimmerman called the police. No doubt, countless black parents have-- and will--counsel their children to be extra vigilant and cautious, for fear that their children will experience the indignity of unwarranted suspicion. That is an unfortunate, unjust reality in today's society, despite our substantial progress toward racial equality.

However, no one should forget the undeniable fact that George Zimmerman was living in a mixed race community, plagued by crime. From the testimony at trial, it appears that George Zimmerman was a concerned neighbor, who was on the lookout for anyone--anyone--who appeared out of place. And in a mixed race community, the color of Mr. Martin's skin surely would not have made him appear out of place, in and of itself. While people may reasonably speculate that Mr. Martin was unfairly racially profiled, that speculation remains just that: speculation. In this country, we are not supposed to convict people in a court of law based upon speculation alone. What's more, Mr. Zimmerman wasn't accused of racial profiling; he was accused of murder.

It is unfortunate that so many people misunderstand the core tenet of our criminal justice system: that all men and women are presumed innocent until the weight of the evidence removes any and all reasonable doubt. Is it possible that George Zimmerman attacked Trayvon Martin? Sure, it's possible. Is there any evidence of it? Very little, if at all. Not even Rachel Jeantel could testify to that. If there is no evidence, you must presume innocence. Anything less is a violation of the law.

On the other hand, there is evidence that Trayvon Martin attacked George Zimmerman. The sophomoric response from many supporters of the prosecution, is that Mr. Zimmerman deserved to be attacked. Apparently, in the minds of many people, it is perfectly acceptable for a person to physically attack a stranger that is following another person. But let's think that through. Does the law recognize a right to use force against another person, when the other person hasn't actually made physical contact or pulled a weapon? No, it does not. It certainly doesn't allow for someone in that scenario to break a person's nose and then "ground and pound" the person's head into the cement.

And let's flip the scenario. Imagine that instead of Trayvon Martin walking home, it was a young white man walking home. Imagine that a grown black man, acting as a neighborhood watchman, found the young white man suspicious, and called the police. Imagine that the young white man called the neighborhood watchman the "N-word," while speaking with his friend on the telephone. Imagine that the young white man, enraged that a black man was following him, attacked the black man. Imagine, moreover, that the young white man not only had a history of fighting, but that his friends solicited fighting lessons from him, presumably because he was so experienced at fighting.

Imagine that a nearby neighbor testified that the young white man was on top of the black man, "ground and pounding" the man's head and "beating him up." Imagine that after the shooting, the black man, bloodied and beaten, told the very first person to arrive on the scene: "He attacked me and I shot him. I was calling for help, but no one came. I've already called the police." Imagine, that when the police interviewed him, the black man said the words "thank God," when told that there was a video of the altercation.

Would anyone expect the case to be prosecuted under those circumstances? And if the case was prosecuted under those circumstances, would it not reek of racism? If a white person were to attack a black person, simply because the black person was following the white person, would there not be a suggestion that the white person acted out of an irrational, prejudiced fear? If we denied the black person the benefit of the law of self-defense, what would that say about our country?

What does it say about our country that so many people presume Mr. Zimmerman's guilt, despite the weight of the evidence to the contrary?

This was a tragic case, on so many levels. There were no winners. Mr. Zimmerman acted foolishly when he exited his car. Indeed, based upon his unsatisfying explanation as to why he found Mr. Martin suspicious, he acted foolishly when he called the police in the first place. However, it was profoundly irresponsible for the State of Florida to disregard its legal duties. The State chose to adopt a speculative, imaginary narrative, unsupported by the evidence, for the purpose of placating a political special interest. It should have been obvious to anyone watching the trial, that the evidence proved only one case: the case of self-defense.

The only redeeming quality of this trial, which seems to have unnecessarily ripped at the seems of racial animosity, is that the jury system worked. Six women, with no legal training, successfully listened to the evidence and applied the evidence to the law, as instructed by the judge. They didn't succumb to the government's tempting suggestion to "think with their hearts." Instead, in the great tradition of the American legal system, six jurors from the community used their heads and applied the law to the facts.

Now it's time to take account of what happened, and move forward with an eye toward preventing something like this from ever happening again. There are many difficult lessons to be learned for everyone: for the prosecutors and politicians; for George Zimmerman and his supporters, who are happy with the verdict; for those who are upset with the verdict; and for everyone in between.