The Aftermath of the George Zimmerman Case, Part 2: The role of the media, the lawyers and the racial divide

See also: The Aftermath of the George Zimmerman Case, Part 1: The Trial, the Evidence and the Verdict

The media story

From the beginning, the national media was informed of the case primarily from the vantage point of Martin's family and their supporters. Trayvon's parents were terribly upset that Zimmerman was not detained and charged after having originally been taken into custody for questioning. They were unhappy over the refusal to immediately charge Zimmerman with killing their son. They never accepted that self-defense was justified since their son was unarmed and Zimmerman was carrying a gun. This is something they have held onto from the night he was shot, through the trial, and probably will for the rest of their lives. Having sat through the trial they must at some level know that Trayvon was shot after their son administered a severe beating to Zimmerman. Or perhaps they truly believe it was their son screaming for help but it is hard to see how an objective observer could rationally believe the cries for help were not coming from Zimmerman given the evidence presented at the trial. (A comprehensive review of the trial and the role of the Martin family can be found here).

The media story was that the racist police had refused to charge Zimmerman because of a phony self-defense story made up by Zimmerman. They posted pictures of Martin as a 12 year old in comparison to the more menacing picture of Zimmerman taken several years before the incident. When the tape of Zimmerman's call was made public, NBC edited it to say he had voluntarily identified that Trayvon was black when he had only said "he looks black" in response to a direct question. Then they claimed he had said "f-ing coons" which is now generally believed to be "f-ing punks".

The media started claiming that the reason Martin was killed was because Zimmerman disobeyed a direct order to stay in his car and not follow Martin. This claim is conclusively contradicted by the recorded phone call between Zimmerman and the police dispatcher. Moreover, the anti-Zimmerman narrative that the police tried to discourage Zimmerman's actions that night is contradicted by the fact that the dispatcher asked Zimmerman three times to provide information that he could not supply without observing Martin.  And nothing in the call suggests the dispatcher thought that Zimmerman's suspicions were unfounded. The recorded call has been on the internet for almost a year and a half and a written transcript has also been on the internet for the same amount of time. The entirety of the call was played repeatedly at the trial.  Yet most people you talk to will tell you that Zimmerman bears some responsibility for what happened because he disobeyed the police order to stay in his car and not follow and confront Martin. So successful was the media in propagating this lie that in the aftermath of the verdict, one hears this repeated not only by all of Trayvon Martin's supporters, but also such supporters of the verdict as national commentators Bill O'Reilly and Michael Medved.

The story offered by most of the media is that Trayvon Martin was simply walking home with his iced tea and skittles and that Zimmerman confronted him and in the confrontation that followed shot him. The innocent child committed no crime and was the victim of a racially motivated murder. This view completely ignores the evidence presented at trial;  the evidence that he chose not to return to Brandy Green's townhouse and instead initiated an unprovoked assault that resulted in his being shot by the victim of his attack.

The coverage of the trial was varied in its adherence to the truth. At the far end of bad journalism was Sonny Hostin on CNN who supported the most outrageous distortions introduced by the prosecution and ignored the vast amount of evidence supporting the claim of self-defense. Even after the verdict had been reached, she went on television the next day calling for the federal government to intervene regardless of the constitution's prohibition against double jeopardy.

In the aftermath of the verdict, major media outlets continued to repeat some of the misconceptions. In a Chicago Tribune editorial that advised the public to accept the verdict, they nonetheless repeated the lie that Zimmerman was told to stay in his car. This lie was repeated in the nightline story on Robin Roberts' interview with juror B29. Furthermore, the edited version of the interview that appeared on Nightline made the statement by B29 that "George Zimmerman got away with murder" seem a lot more definitive than the full interview in which the juror seems more speculative. What is most troublesome about the Roberts' interview is that the juror is never asked if she thought that Zimmerman acted in self-defense, the only question at issue in the trial. Either Roberts never asked the question or she did and ABC edited out the answer. Either way, it is journalistic malfeasance.

The media also promoted the unfortunate misconception that Florida's Stand Your Ground Law was involved in the verdict. Many who felt Zimmerman was guilty of something blame the acquittal on Stand Your Ground, a law that permits the use deadly of force in self-defense even when there is an option of retreat. Whatever the merits of Stand Your Grand Laws, they don't apply in this case. Zimmerman did not have the option to retreat since Martin had him pinned on his back. The question about the law that actually arose in this case was whether a person armed with a gun could use deadly force to defend himself against someone who was unarmed. The law clearly says that you can if you are reasonably in fear for your life or of great bodily harm. What people are questioning is the law of self-defense itself and not Stand Your Ground. It would have been helpful if the media had been clear about that.

It is not surprising that so much of the public got the story wrong. The media had been repeating the same lies about the case for 17 months so why change just because there was incontrovertible evidence that they were lies.

The lawyers: Atticus Finch vs. Mike Nifong

The case provided a stark contrast between the two legal teams. Defense attorneys spend much of their time getting plea deals for reduced sentences for clients who have committed some pretty awful crimes. Given the dubious character of many of their clients, defense lawyers generally demand money up front before they will step into a court room. Yet in this case, attorneys Mark O'Mara and Donald West spent a year and a half on a case without any guarantee that the defendant would be able to pay them. Why did they agree to take the case? Defending clients who are often guilty of awful offenses exposes defense attorneys a close-up view of some of the nastiest side humanity, but most have not become so cynical from dealing with unpleasant clients and ruthless prosecutors that they don't harbor some of the idealism that led them to become defense attorneys in the first place.  Watching the trial it was hard not to compare Mark O'Mara to Atticus Finch, the heroic lawyer battling the prejudices of the segregationist south in Harper Lee's novel "To Kill a Mockingbird".  There are some things worth more than money and fame and for a lot of defense lawyers the top of the list is saving the life of an innocent defendant from an unscrupulous prosecution that is motivated by the public's desire for blood. 

On the other hand, a prosecutor's worst nightmare is to be remembered for enthusiastically going forward with a transparently dishonest, politically motivated prosecution to appease a public lynch mob bent on revenge rather than justice. Virtually every prosecution witness, under cross-examination, either backed up the defense's case or at least was consistent with it. By the end of the trial it was clear that the charge of second degree murder was essentially a frame up and the lesser charge of manslaughter could not even come close to a preponderance of evidence, (better than a fifty-fifty chance of being true), and many would conclude Zimmerman was innocent beyond a reasonable doubt. The prosecution knew, from Jonathan Good's testimony, that the cries for help were Zimmerman's. Yet they still tried to present witnesses to counter Good's testimony so as to make it seem like his testimony was just one of many, some of whom thought it was Zimmerman's and some of whom thought it was Martin's. That is not an incompetent prosecution; it is a dishonest politically motivated one.

From the first day of testimony onwards, it was clear that the prosecution's narrative of the case was contradicted by everyone of its witnesses except for Sybrina Fulton who claimed the cries for help on the Jenna Lauer 911 call were those of her son. And her testimony was countered by the failure of both Tracy Martin's and Trayvon's brother's inability to identify the voice when it was first played for them. After talking for weeks with the Martin family lawyers, the father and brother changed their minds and testified that they were now sure the voice was Trayvon's: but they were countered by a parade of Zimmerman's friends and relations who testified to their certainty that the cries were from George Zimmerman so it was likely that the jurors ignored the voice identification of those listening to the Lauer tape as wishful thinking or outright lies. It is almost impossible to identify screaming voices especially after factoring in that the sounds were recorded at the police station from a phone call of cries that were audible through walls and windows of Jenna Lauer's townhouse.

In point of fact, there was only one witness that mattered on the screams and that was Jonathan Good who was standing fifteen feet away and saw that the person crying out for help was Zimmerman. The second piece of evidence that cinched it were the injuries sustained by Zimmerman and the fact that Martin was clearly the one administering the beating.

A commenter on Ann Althouse's blog related a story that sheds light on the identification of screams. She wrote that the only time in her life that she heard screams like the ones on the Lauer 911 call was when her young son had broken his arm while playing outside her house. She ran out to attend to her son and so did every mother on the block who was equally sure it was her own child.

Watching the state present its case for second degree murder, it was difficult not to see the shadow of Mike Nifong, the disgraced and disbarred prosecutor from the Duke Lacrosse case, looming over the prosecutors.

The racial divide

The general acceptance of the verdict by a majority of whites contrasted with the near unanimous disappointment by blacks as evidenced by media commentary and public opinion polls. In an echo of the reaction to the OJ Simpson trial, the Zimmerman verdict reaction highlighted a continuing division of racial perceptions. President Obama addressed this divide in a news briefing several days after the verdict. Invoking his own experience to add weight to his comments, he offered context to the reactions of blacks. Updating his pre-trial statement (" if I had a son he would look like Trayvon"), he stated that Trayvon could have been a 35 years earlier version of himself.  He continued by placing the reaction of black people to the verdict in the context of his own experience of being followed in department stores, hearing car door locked when he approached parked cars, and watching women clutch their pocket books when he entered an elevator. As a gesture of forgiveness for whites, he admitted that there indeed has been progress as he notes that his daughters interact easily with their fellow students at Sidwell Friends.

Clearly there is a divide in how whites and blacks view this case. But there was a trial and there was a great deal of evidence so what happened in Sanford is not merely a matter of perspective. This isn't a case of achieving peace through agreeing to disagree. The evidence in the case clearly points to Zimmerman's innocence and certainly does not point to racial animus as a reason for the shooting of Martin. 

In light of his briefing, one wants to ask President Obama why didn't he try to explain the verdict to the nation. If he wanted to bridge differences and clear up misunderstandings, wouldn't it have made more sense to allow the evidence of the case help to inform the public of why the jury decided as they did. As a constitutional law professor, shouldn't he have advised the public of importance of such constitutional protections as the right to trial by a jury of one's peers, that a defendant has the right to not incriminate himself, that citizens are protected against double jeopardy, that a unanimous vote is required for a guilty verdict and that a guilty verdict requires proof beyond a reasonable doubt.

But the president chose to address the public concerns about the verdict in the context of past racial indignities rather than in the context of the facts of the case. He was rationalizing black's reaction to the verdict and showing his racial loyalty by fulfilling his duty to his most loyal supporters by explaining their reactions to white America. He did a good job of doing this but was it helpful? Perhaps he should have taken a more honest approach and discussed the evidence in the case. Perhaps honesty about the facts would have been more helpful in terms of racial attitudes than telling white people what black people wanted them to hear.

While I may disagree with President Obama's approach to discussing the case, I think his remarks were intended to tone down the racial tension the case had stirred up. The same cannot be said for attorney general Eric Holder who has made it clear from the start of his tenure that he doesn't think the law should be applied in a racially neutral manner. In testifying before Congress about the expansion of federal hate crime laws, Holder made it very clear that he divided society into protected and unprotected classes. Hate crime laws are ways to greatly expand the punishments for ordinary crimes so that what might result in a sentence of a couple years can be lengthened to more than ten. This means that an assault by a white on a black could result in a punishment five times as severe as an assault by a black on a white. If that doesn't violate the Fourteenth Amendment, nothing does.

In Holder's response to the acquittal of George Zimmerman, he assured a black sorority and the NAACP that he was very disturbed by the verdict and assured them that the Justice Department is looking into filing federal charges. In pursuit of such indictments, he authorized the establishment of a tip line to get any information that might indicate evidence of racial animus on the part of George Zimmerman. It would be difficult to overestimate the absurdity of staging a hate crime show trial of George Zimmerman. In the first place, given George Zimmerman's personal history, he is one of the least likely to harbor racial animus. More to the point, how do you fit Zimmerman into an unprotected class.? Though characterized as a "white" Hispanic, he clearly isn't even white. He is a mixed race Hispanic.

Does the attorney general have any sense of what the trial would look like? It would be the show trial of the century as federal prosecutors in front of a national television audience would attempt to establish beyond a reasonable doubt that Zimmerman's mixed race heritage of white, Indian and African ancestors is insufficient in the latter two racial categories, to make him eligible to be prosecuted for a hate crime. In essence Holder is proposing to set aside the constitutional protection against double jeopardy based on Zimmerman's not having enough ancestors of color to send him to jail for the rest of his life for a crime for which a jury has already found him not guilty. These kind of legal considerations were last heard in deciding on how much Jewish blood one needed to warrant transportation to Auschwitz.

For members of minority groups, when their racial or ethnic identity is somehow involved in issues, there is a personal stake in the outcome. They often fear that all members of their group will somehow be judged according to the outcome. In the Simpson case, blacks worried that whites' old prejudices were stirred up by the case and would be confirmed if Simpson was found guilty. This type of reaction is shared by other minority groups. For example, when Julian and Ethel Rosenberg were charged with giving the plans for the atomic bomb to the Soviet Union, many Jews wanted to believe in the Rosenberg's innocence. They feared that if the Rosenbergs were guilty, it would contribute to a prejudice that all Jews were disloyal. Some of the same type of anxieties explain the black reaction to the Simpson verdict and doubtless underlie some of the reaction of black people to the Zimmerman verdict.

With a few notable exceptions, blacks were upset by the verdict. The commentary of black attorneys, academics and pundits appearing as analysts in the media coverage of the trial was generally pro prosecution. They would sometimes acknowledge a bad day for the prosecution or an effective cross-examination by the defense, but they would never offer the possibility that the strength of the defense case was their client's innocence. The nightly commentary from Sonny Hostin on CNN never once, so far as I can remember, considered the possibility that a guilty verdict could send an innocent man to jail for the rest of his life. She had a hard time acknowledging that Zimmerman might be acquitted. If she harbored any doubts about his guilt, she never let on. To be fair, she wasn't alone. Few, if any, commentators, white or black, professed their belief in Zimmerman's innocence. More troubling was that in spite of the prosecution's failure to produce any credible evidence contradicting Zimmerman's claim to self-defense, many still held out hope for a guilty verdict.

One notable exception came from basketball commentator Charles Barkley.  In an interview with CNBC following the verdict Barkley said that he had watched the trial very carefully and concluded that the evidence made it clear that Zimmerman acted in self-defense and that the verdict was correct. He thought that "Martin had flipped a switch and started beating the hell out of Zimmerman", an opinion that is strongly suggested by the evidence. For those who follow Barkley's basketball analysis, this should come as no surprise because his commentary on sports is among the most objective. He tells his audience what he thinks is happening and is likely to happen and not what he wants to happen. While he has teams and players that he roots for, he doesn't let that interfere with his evaluation of them as basketball teams and players. Unfortunately, most commentators chose not to follow Barkley's approach of relying on the evidence.

The racialization of the case was always misplaced. The judge, the prosecution, the defense attorneys, the jurors and, during the trial, even the lawyers for the Martin family, all said that the trial was not about race. But this didn't convince the media. From the beginning, the media coverage promoted a narrative of racial motivation in the shooting; Trayvon Martin, an unarmed African American child, was hunted down and murdered by an armed white racist adult while returning home with a can of iced tea and a bag of Skittles. The implication being that Zimmerman who was white shot Martin because he was black. This narrative did not square with the evidence. The Justice Departments interviewed at least 30 of Zimmerman's acquaintances in the hope of finding evidence of racial bias but nothing in Zimmerman's past suggested racism of any kind. In fact, it was well known that he had gone to great efforts to champion the rights of a black homeless man who had been beaten up by the son of a white Sanford police officer. He had help to mentor two black kids whose father was in prison. And he was of mixed race heritage including a great grandfather who was black. This information was readily available to anyone who seriously considered the case.

Unfortunately, disregarding the lack of any evidence that Zimmerman was a racist, The New Republic published an article by a black Stanford Law Professor, Richard Thompson Ford, asserting a racial motive for Zimmerman's actions. To support this assertion, the article made the outrageous claim that Zimmerman had called the police to report a suspicious black seven year old. If the writer had troubled himself to look at the readily available evidence of the call, he would have discovered that Zimmerman had called out of concern for the safety of a small African American child who he had seen walking alone on a dangerous busy street. The original article contained the sentence

"Zimmerman was an edgy basket case with a gun who had called 911 46 times in 15 months, once to report the suspicious activities of a seven year old black boy." 

A corrected article remains on TNR's website with the following mea culpa from the editor:

"This article has been corrected. Zimmerman called various law enforcement officials 46 times, not just 911, as originally stated. He made the calls over an eight-year period, not over the course of 15 months, as originally stated. The original sentence also cited a call Zimmerman made about a seven-year-old boy; the clause has been removed as it implied that Zimmerman was reporting suspicious activity. It appears that Zimmerman made the call out of concern. We regret the errors."    

The corrected article still refers to Zimmerman as "an edgy basket case with a gun" but as can be inferred from the above cited correction, any evidence for a racial component to Zimmerman's actions has been removed from the article.  What remains of the article are claims of racial injustices in the criminal justice system but with the incorrect sentence removed, the author presents no evidence tying such injustices to either the trial or to George Zimmerman. Ironically, the defendant and his lawyers would find more agreement with the corrected article than the prosecutors. (A complete log and analysis of Zimmerman's calls can be found here.)

Another black law professor, Patricia Williams from Columbia University, has written a post-verdict commentary for The Nation magazine entitled The Monsterization of Trayvon Martin suggesting that the defense got Zimmerman acquitted by demonizing Martin. This claim is absurd. The evidence of fighting, firearms and drug use found in 900 pages of photographs, text messages, tweets and emails obtained from Martin's cell phone was ruled inadmissible by the judge because there wasn't time to verify the authenticity of the information. While the public has seen some of this material, none of it was shown to the jury so it could not have influenced their verdict. The excluded evidence included text messages about Trayvon's fighting that would have supported the defendant's case so the defense lawyers would have liked to introduce it. However, there is no evidence that "monsterizing" Trayvon was ever part of the defense strategy. In fact, after the autopsy report of THC (the active ingredient in marijuana) in Martin's blood was ruled admissible by the judge, the defense declined to use it. There was nothing about Martin's character introduced by the defense in the trial except for evidence that he was beating the hell out of Zimmerman at the time he was shot.

Ms. Williams' portrays the prosecution witness Rachel Jeantel as a victim of the proceedings, ignoring the fact that her admitted lying and evolving memory of her phone calls with Trayvon called into question the veracity of her testimony. It was difficult for the jury to give credence to her latest version of the final moments of her phone call when her story had been changing depending on the venue in which she recounted it.  From the defense point of view, Jeantel's appearance and demeanor were irrelevant. Her testimony was useful because it helped establish the defense's timeline of the events. She proved beyond a reasonable doubt that Martin had chosen not to return home but instead returned to the top of the T where he once again encountered George Zimmerman.

While Williams' commentary on the trial is largely irrelevant to the actual court proceedings, it reveals her real concerns. She is most disturbed by the revelations from Trayvon's cell phone that showed him as something of a drug consuming, gangsta wannabe who practiced martial arts and enjoyed fighting. These pieces of evidence were how Trayvon portrayed himself and were not the invention of the defense lawyers. Though this evidence went unseen by the jury, some of it was reported by the media and reproduced on blogs supportive of Zimmerman. Such information tends to bring forth comments revealing negative stereotyping of young black men. It is easy to see how blacks might feel that a guilty verdict could counteract such stereotypes. But you can't blame this on the defense. They were never admitted into evidence at the trial.

Oprah Winfrey has now weighed in about the case, comparing the shooting of Trayvon Martin to the murder of Emmet Till. This comment from one of the wealthiest people in the world, who also happens to be one of the most popular entertainers in the United States, is completely out of touch with reality. Zimmerman was clearly acting in self-defense and Till was brutally murdered by the husband of a woman who claimed the 14 year old Till had flirted with her.

What is perhaps the most disturbing aspect of the Zimmerman case is the need on the part of so many to insist that a narrative of racism  take precedence over a determination of facts based on an evaluation of evidence presented within the framework of American laws. Why the desire of so many for the triumph of illusion over reality? The third article in this series will reflect on some racial history and explore how that history impacts how people viewed the case.


See also: The Aftermath of the George Zimmerman Case, Part 3: The Weight of History

See also: The Aftermath of the George Zimmerman Case, Part 1: The Trial, the Evidence and the Verdict

The media story

From the beginning, the national media was informed of the case primarily from the vantage point of Martin's family and their supporters. Trayvon's parents were terribly upset that Zimmerman was not detained and charged after having originally been taken into custody for questioning. They were unhappy over the refusal to immediately charge Zimmerman with killing their son. They never accepted that self-defense was justified since their son was unarmed and Zimmerman was carrying a gun. This is something they have held onto from the night he was shot, through the trial, and probably will for the rest of their lives. Having sat through the trial they must at some level know that Trayvon was shot after their son administered a severe beating to Zimmerman. Or perhaps they truly believe it was their son screaming for help but it is hard to see how an objective observer could rationally believe the cries for help were not coming from Zimmerman given the evidence presented at the trial. (A comprehensive review of the trial and the role of the Martin family can be found here).

The media story was that the racist police had refused to charge Zimmerman because of a phony self-defense story made up by Zimmerman. They posted pictures of Martin as a 12 year old in comparison to the more menacing picture of Zimmerman taken several years before the incident. When the tape of Zimmerman's call was made public, NBC edited it to say he had voluntarily identified that Trayvon was black when he had only said "he looks black" in response to a direct question. Then they claimed he had said "f-ing coons" which is now generally believed to be "f-ing punks".

The media started claiming that the reason Martin was killed was because Zimmerman disobeyed a direct order to stay in his car and not follow Martin. This claim is conclusively contradicted by the recorded phone call between Zimmerman and the police dispatcher. Moreover, the anti-Zimmerman narrative that the police tried to discourage Zimmerman's actions that night is contradicted by the fact that the dispatcher asked Zimmerman three times to provide information that he could not supply without observing Martin.  And nothing in the call suggests the dispatcher thought that Zimmerman's suspicions were unfounded. The recorded call has been on the internet for almost a year and a half and a written transcript has also been on the internet for the same amount of time. The entirety of the call was played repeatedly at the trial.  Yet most people you talk to will tell you that Zimmerman bears some responsibility for what happened because he disobeyed the police order to stay in his car and not follow and confront Martin. So successful was the media in propagating this lie that in the aftermath of the verdict, one hears this repeated not only by all of Trayvon Martin's supporters, but also such supporters of the verdict as national commentators Bill O'Reilly and Michael Medved.

The story offered by most of the media is that Trayvon Martin was simply walking home with his iced tea and skittles and that Zimmerman confronted him and in the confrontation that followed shot him. The innocent child committed no crime and was the victim of a racially motivated murder. This view completely ignores the evidence presented at trial;  the evidence that he chose not to return to Brandy Green's townhouse and instead initiated an unprovoked assault that resulted in his being shot by the victim of his attack.

The coverage of the trial was varied in its adherence to the truth. At the far end of bad journalism was Sonny Hostin on CNN who supported the most outrageous distortions introduced by the prosecution and ignored the vast amount of evidence supporting the claim of self-defense. Even after the verdict had been reached, she went on television the next day calling for the federal government to intervene regardless of the constitution's prohibition against double jeopardy.

In the aftermath of the verdict, major media outlets continued to repeat some of the misconceptions. In a Chicago Tribune editorial that advised the public to accept the verdict, they nonetheless repeated the lie that Zimmerman was told to stay in his car. This lie was repeated in the nightline story on Robin Roberts' interview with juror B29. Furthermore, the edited version of the interview that appeared on Nightline made the statement by B29 that "George Zimmerman got away with murder" seem a lot more definitive than the full interview in which the juror seems more speculative. What is most troublesome about the Roberts' interview is that the juror is never asked if she thought that Zimmerman acted in self-defense, the only question at issue in the trial. Either Roberts never asked the question or she did and ABC edited out the answer. Either way, it is journalistic malfeasance.

The media also promoted the unfortunate misconception that Florida's Stand Your Ground Law was involved in the verdict. Many who felt Zimmerman was guilty of something blame the acquittal on Stand Your Ground, a law that permits the use deadly of force in self-defense even when there is an option of retreat. Whatever the merits of Stand Your Grand Laws, they don't apply in this case. Zimmerman did not have the option to retreat since Martin had him pinned on his back. The question about the law that actually arose in this case was whether a person armed with a gun could use deadly force to defend himself against someone who was unarmed. The law clearly says that you can if you are reasonably in fear for your life or of great bodily harm. What people are questioning is the law of self-defense itself and not Stand Your Ground. It would have been helpful if the media had been clear about that.

It is not surprising that so much of the public got the story wrong. The media had been repeating the same lies about the case for 17 months so why change just because there was incontrovertible evidence that they were lies.

The lawyers: Atticus Finch vs. Mike Nifong

The case provided a stark contrast between the two legal teams. Defense attorneys spend much of their time getting plea deals for reduced sentences for clients who have committed some pretty awful crimes. Given the dubious character of many of their clients, defense lawyers generally demand money up front before they will step into a court room. Yet in this case, attorneys Mark O'Mara and Donald West spent a year and a half on a case without any guarantee that the defendant would be able to pay them. Why did they agree to take the case? Defending clients who are often guilty of awful offenses exposes defense attorneys a close-up view of some of the nastiest side humanity, but most have not become so cynical from dealing with unpleasant clients and ruthless prosecutors that they don't harbor some of the idealism that led them to become defense attorneys in the first place.  Watching the trial it was hard not to compare Mark O'Mara to Atticus Finch, the heroic lawyer battling the prejudices of the segregationist south in Harper Lee's novel "To Kill a Mockingbird".  There are some things worth more than money and fame and for a lot of defense lawyers the top of the list is saving the life of an innocent defendant from an unscrupulous prosecution that is motivated by the public's desire for blood. 

On the other hand, a prosecutor's worst nightmare is to be remembered for enthusiastically going forward with a transparently dishonest, politically motivated prosecution to appease a public lynch mob bent on revenge rather than justice. Virtually every prosecution witness, under cross-examination, either backed up the defense's case or at least was consistent with it. By the end of the trial it was clear that the charge of second degree murder was essentially a frame up and the lesser charge of manslaughter could not even come close to a preponderance of evidence, (better than a fifty-fifty chance of being true), and many would conclude Zimmerman was innocent beyond a reasonable doubt. The prosecution knew, from Jonathan Good's testimony, that the cries for help were Zimmerman's. Yet they still tried to present witnesses to counter Good's testimony so as to make it seem like his testimony was just one of many, some of whom thought it was Zimmerman's and some of whom thought it was Martin's. That is not an incompetent prosecution; it is a dishonest politically motivated one.

From the first day of testimony onwards, it was clear that the prosecution's narrative of the case was contradicted by everyone of its witnesses except for Sybrina Fulton who claimed the cries for help on the Jenna Lauer 911 call were those of her son. And her testimony was countered by the failure of both Tracy Martin's and Trayvon's brother's inability to identify the voice when it was first played for them. After talking for weeks with the Martin family lawyers, the father and brother changed their minds and testified that they were now sure the voice was Trayvon's: but they were countered by a parade of Zimmerman's friends and relations who testified to their certainty that the cries were from George Zimmerman so it was likely that the jurors ignored the voice identification of those listening to the Lauer tape as wishful thinking or outright lies. It is almost impossible to identify screaming voices especially after factoring in that the sounds were recorded at the police station from a phone call of cries that were audible through walls and windows of Jenna Lauer's townhouse.

In point of fact, there was only one witness that mattered on the screams and that was Jonathan Good who was standing fifteen feet away and saw that the person crying out for help was Zimmerman. The second piece of evidence that cinched it were the injuries sustained by Zimmerman and the fact that Martin was clearly the one administering the beating.

A commenter on Ann Althouse's blog related a story that sheds light on the identification of screams. She wrote that the only time in her life that she heard screams like the ones on the Lauer 911 call was when her young son had broken his arm while playing outside her house. She ran out to attend to her son and so did every mother on the block who was equally sure it was her own child.

Watching the state present its case for second degree murder, it was difficult not to see the shadow of Mike Nifong, the disgraced and disbarred prosecutor from the Duke Lacrosse case, looming over the prosecutors.

The racial divide

The general acceptance of the verdict by a majority of whites contrasted with the near unanimous disappointment by blacks as evidenced by media commentary and public opinion polls. In an echo of the reaction to the OJ Simpson trial, the Zimmerman verdict reaction highlighted a continuing division of racial perceptions. President Obama addressed this divide in a news briefing several days after the verdict. Invoking his own experience to add weight to his comments, he offered context to the reactions of blacks. Updating his pre-trial statement (" if I had a son he would look like Trayvon"), he stated that Trayvon could have been a 35 years earlier version of himself.  He continued by placing the reaction of black people to the verdict in the context of his own experience of being followed in department stores, hearing car door locked when he approached parked cars, and watching women clutch their pocket books when he entered an elevator. As a gesture of forgiveness for whites, he admitted that there indeed has been progress as he notes that his daughters interact easily with their fellow students at Sidwell Friends.

Clearly there is a divide in how whites and blacks view this case. But there was a trial and there was a great deal of evidence so what happened in Sanford is not merely a matter of perspective. This isn't a case of achieving peace through agreeing to disagree. The evidence in the case clearly points to Zimmerman's innocence and certainly does not point to racial animus as a reason for the shooting of Martin. 

In light of his briefing, one wants to ask President Obama why didn't he try to explain the verdict to the nation. If he wanted to bridge differences and clear up misunderstandings, wouldn't it have made more sense to allow the evidence of the case help to inform the public of why the jury decided as they did. As a constitutional law professor, shouldn't he have advised the public of importance of such constitutional protections as the right to trial by a jury of one's peers, that a defendant has the right to not incriminate himself, that citizens are protected against double jeopardy, that a unanimous vote is required for a guilty verdict and that a guilty verdict requires proof beyond a reasonable doubt.

But the president chose to address the public concerns about the verdict in the context of past racial indignities rather than in the context of the facts of the case. He was rationalizing black's reaction to the verdict and showing his racial loyalty by fulfilling his duty to his most loyal supporters by explaining their reactions to white America. He did a good job of doing this but was it helpful? Perhaps he should have taken a more honest approach and discussed the evidence in the case. Perhaps honesty about the facts would have been more helpful in terms of racial attitudes than telling white people what black people wanted them to hear.

While I may disagree with President Obama's approach to discussing the case, I think his remarks were intended to tone down the racial tension the case had stirred up. The same cannot be said for attorney general Eric Holder who has made it clear from the start of his tenure that he doesn't think the law should be applied in a racially neutral manner. In testifying before Congress about the expansion of federal hate crime laws, Holder made it very clear that he divided society into protected and unprotected classes. Hate crime laws are ways to greatly expand the punishments for ordinary crimes so that what might result in a sentence of a couple years can be lengthened to more than ten. This means that an assault by a white on a black could result in a punishment five times as severe as an assault by a black on a white. If that doesn't violate the Fourteenth Amendment, nothing does.

In Holder's response to the acquittal of George Zimmerman, he assured a black sorority and the NAACP that he was very disturbed by the verdict and assured them that the Justice Department is looking into filing federal charges. In pursuit of such indictments, he authorized the establishment of a tip line to get any information that might indicate evidence of racial animus on the part of George Zimmerman. It would be difficult to overestimate the absurdity of staging a hate crime show trial of George Zimmerman. In the first place, given George Zimmerman's personal history, he is one of the least likely to harbor racial animus. More to the point, how do you fit Zimmerman into an unprotected class.? Though characterized as a "white" Hispanic, he clearly isn't even white. He is a mixed race Hispanic.

Does the attorney general have any sense of what the trial would look like? It would be the show trial of the century as federal prosecutors in front of a national television audience would attempt to establish beyond a reasonable doubt that Zimmerman's mixed race heritage of white, Indian and African ancestors is insufficient in the latter two racial categories, to make him eligible to be prosecuted for a hate crime. In essence Holder is proposing to set aside the constitutional protection against double jeopardy based on Zimmerman's not having enough ancestors of color to send him to jail for the rest of his life for a crime for which a jury has already found him not guilty. These kind of legal considerations were last heard in deciding on how much Jewish blood one needed to warrant transportation to Auschwitz.

For members of minority groups, when their racial or ethnic identity is somehow involved in issues, there is a personal stake in the outcome. They often fear that all members of their group will somehow be judged according to the outcome. In the Simpson case, blacks worried that whites' old prejudices were stirred up by the case and would be confirmed if Simpson was found guilty. This type of reaction is shared by other minority groups. For example, when Julian and Ethel Rosenberg were charged with giving the plans for the atomic bomb to the Soviet Union, many Jews wanted to believe in the Rosenberg's innocence. They feared that if the Rosenbergs were guilty, it would contribute to a prejudice that all Jews were disloyal. Some of the same type of anxieties explain the black reaction to the Simpson verdict and doubtless underlie some of the reaction of black people to the Zimmerman verdict.

With a few notable exceptions, blacks were upset by the verdict. The commentary of black attorneys, academics and pundits appearing as analysts in the media coverage of the trial was generally pro prosecution. They would sometimes acknowledge a bad day for the prosecution or an effective cross-examination by the defense, but they would never offer the possibility that the strength of the defense case was their client's innocence. The nightly commentary from Sonny Hostin on CNN never once, so far as I can remember, considered the possibility that a guilty verdict could send an innocent man to jail for the rest of his life. She had a hard time acknowledging that Zimmerman might be acquitted. If she harbored any doubts about his guilt, she never let on. To be fair, she wasn't alone. Few, if any, commentators, white or black, professed their belief in Zimmerman's innocence. More troubling was that in spite of the prosecution's failure to produce any credible evidence contradicting Zimmerman's claim to self-defense, many still held out hope for a guilty verdict.

One notable exception came from basketball commentator Charles Barkley.  In an interview with CNBC following the verdict Barkley said that he had watched the trial very carefully and concluded that the evidence made it clear that Zimmerman acted in self-defense and that the verdict was correct. He thought that "Martin had flipped a switch and started beating the hell out of Zimmerman", an opinion that is strongly suggested by the evidence. For those who follow Barkley's basketball analysis, this should come as no surprise because his commentary on sports is among the most objective. He tells his audience what he thinks is happening and is likely to happen and not what he wants to happen. While he has teams and players that he roots for, he doesn't let that interfere with his evaluation of them as basketball teams and players. Unfortunately, most commentators chose not to follow Barkley's approach of relying on the evidence.

The racialization of the case was always misplaced. The judge, the prosecution, the defense attorneys, the jurors and, during the trial, even the lawyers for the Martin family, all said that the trial was not about race. But this didn't convince the media. From the beginning, the media coverage promoted a narrative of racial motivation in the shooting; Trayvon Martin, an unarmed African American child, was hunted down and murdered by an armed white racist adult while returning home with a can of iced tea and a bag of Skittles. The implication being that Zimmerman who was white shot Martin because he was black. This narrative did not square with the evidence. The Justice Departments interviewed at least 30 of Zimmerman's acquaintances in the hope of finding evidence of racial bias but nothing in Zimmerman's past suggested racism of any kind. In fact, it was well known that he had gone to great efforts to champion the rights of a black homeless man who had been beaten up by the son of a white Sanford police officer. He had help to mentor two black kids whose father was in prison. And he was of mixed race heritage including a great grandfather who was black. This information was readily available to anyone who seriously considered the case.

Unfortunately, disregarding the lack of any evidence that Zimmerman was a racist, The New Republic published an article by a black Stanford Law Professor, Richard Thompson Ford, asserting a racial motive for Zimmerman's actions. To support this assertion, the article made the outrageous claim that Zimmerman had called the police to report a suspicious black seven year old. If the writer had troubled himself to look at the readily available evidence of the call, he would have discovered that Zimmerman had called out of concern for the safety of a small African American child who he had seen walking alone on a dangerous busy street. The original article contained the sentence

"Zimmerman was an edgy basket case with a gun who had called 911 46 times in 15 months, once to report the suspicious activities of a seven year old black boy." 

A corrected article remains on TNR's website with the following mea culpa from the editor:

"This article has been corrected. Zimmerman called various law enforcement officials 46 times, not just 911, as originally stated. He made the calls over an eight-year period, not over the course of 15 months, as originally stated. The original sentence also cited a call Zimmerman made about a seven-year-old boy; the clause has been removed as it implied that Zimmerman was reporting suspicious activity. It appears that Zimmerman made the call out of concern. We regret the errors."    

The corrected article still refers to Zimmerman as "an edgy basket case with a gun" but as can be inferred from the above cited correction, any evidence for a racial component to Zimmerman's actions has been removed from the article.  What remains of the article are claims of racial injustices in the criminal justice system but with the incorrect sentence removed, the author presents no evidence tying such injustices to either the trial or to George Zimmerman. Ironically, the defendant and his lawyers would find more agreement with the corrected article than the prosecutors. (A complete log and analysis of Zimmerman's calls can be found here.)

Another black law professor, Patricia Williams from Columbia University, has written a post-verdict commentary for The Nation magazine entitled The Monsterization of Trayvon Martin suggesting that the defense got Zimmerman acquitted by demonizing Martin. This claim is absurd. The evidence of fighting, firearms and drug use found in 900 pages of photographs, text messages, tweets and emails obtained from Martin's cell phone was ruled inadmissible by the judge because there wasn't time to verify the authenticity of the information. While the public has seen some of this material, none of it was shown to the jury so it could not have influenced their verdict. The excluded evidence included text messages about Trayvon's fighting that would have supported the defendant's case so the defense lawyers would have liked to introduce it. However, there is no evidence that "monsterizing" Trayvon was ever part of the defense strategy. In fact, after the autopsy report of THC (the active ingredient in marijuana) in Martin's blood was ruled admissible by the judge, the defense declined to use it. There was nothing about Martin's character introduced by the defense in the trial except for evidence that he was beating the hell out of Zimmerman at the time he was shot.

Ms. Williams' portrays the prosecution witness Rachel Jeantel as a victim of the proceedings, ignoring the fact that her admitted lying and evolving memory of her phone calls with Trayvon called into question the veracity of her testimony. It was difficult for the jury to give credence to her latest version of the final moments of her phone call when her story had been changing depending on the venue in which she recounted it.  From the defense point of view, Jeantel's appearance and demeanor were irrelevant. Her testimony was useful because it helped establish the defense's timeline of the events. She proved beyond a reasonable doubt that Martin had chosen not to return home but instead returned to the top of the T where he once again encountered George Zimmerman.

While Williams' commentary on the trial is largely irrelevant to the actual court proceedings, it reveals her real concerns. She is most disturbed by the revelations from Trayvon's cell phone that showed him as something of a drug consuming, gangsta wannabe who practiced martial arts and enjoyed fighting. These pieces of evidence were how Trayvon portrayed himself and were not the invention of the defense lawyers. Though this evidence went unseen by the jury, some of it was reported by the media and reproduced on blogs supportive of Zimmerman. Such information tends to bring forth comments revealing negative stereotyping of young black men. It is easy to see how blacks might feel that a guilty verdict could counteract such stereotypes. But you can't blame this on the defense. They were never admitted into evidence at the trial.

Oprah Winfrey has now weighed in about the case, comparing the shooting of Trayvon Martin to the murder of Emmet Till. This comment from one of the wealthiest people in the world, who also happens to be one of the most popular entertainers in the United States, is completely out of touch with reality. Zimmerman was clearly acting in self-defense and Till was brutally murdered by the husband of a woman who claimed the 14 year old Till had flirted with her.

What is perhaps the most disturbing aspect of the Zimmerman case is the need on the part of so many to insist that a narrative of racism  take precedence over a determination of facts based on an evaluation of evidence presented within the framework of American laws. Why the desire of so many for the triumph of illusion over reality? The third article in this series will reflect on some racial history and explore how that history impacts how people viewed the case.


See also: The Aftermath of the George Zimmerman Case, Part 3: The Weight of History

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