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Race and reasonable doubt: Notes from the Sanford, Fla. verdict

Jonathan Simon, professor of law | July 15, 2013

The official media narrative is in.  The acquittal of wanna-bee neighborhood guardian George Zimmerman for the fatal shooting of Trayvon Martin reflects the impenetrable wall that the law and the trial judge set up between the narrow legal questions of culpability and the broad social issues that had animated passions in the case: gun carrying in public and racial profiling.

But do not buy this part of the narrative.  While the legal issues may have been narrow and the evidence carefully filtered by the judge, whether consciously or not, race was central to the jury’s considerations in Sanford this past weekend.

George Zimmerman admitted he fired his gun into the center of Trayvon Martin’s body, from which a jury could and normally would infer that he intended to kill Martin.  Normally that would be enough to establish 2nd degree murder.  Here however Zimmerman claimed “self defense.”  Even though Zimmerman never took the stand, the jurors had to consider his story presented in police reports and forensic evidence.

The jury had to consider whether Zimmerman reasonably feared that he would die or suffer grievous bodily harm if he did not use lethal force.  Does an adult with a gun in his pocket have a reasonable fear that someone who has punched him and is now straddling him and pounding his head on the pavement is going to cause his death or at least grave bodily harm?  That is where age, gender, and race do their work.

Imagine that Trayvon was a 17 year old female, a 54 year old white male, or even a 17 year old white male.  In all of those cases the prosecutors would have had an easier job convincing the jury that Zimmerman acted recklessly in firing his gun.

It is true that teenage males are more associated with aggression, anger, and violence in our culture than either females or older males; but young black men are endowed with a legendary level of anger by our cultural imaginary (and one typically associated with danger to white people).  In scores of popular cultural references young black men are depicted as exploding into legal violence with little provocation or warning.

In its own way this cultural construction reflects an acknowledgement of the historical wrongs done against African Americans and the resentments which this treatment would give rise to.   It is this cultural imaginary that was so successfully invoked by “black power” political leaders of the 1960s and 1970s from Huey Newton to Jesse Jackson Sr. and Reverend Jeremiah Wright, and which candidate Barack Obama had worked so hard to distance himself from with his calm demeanor, starched shirts, and studied refusal to give voice to racial grievance.

It is true that the defense was not able to introduce potentially prejudicial evidence about Trayvon Martin’s past, including that he had used marijuana and that he had been involved in some  minor fights at school.  But in convincing the jury that George Zimmerman was reasonable in fearing for his life, the defense had a wind at its back that would not have been there had Trayvon been female or white.

Think about Zimmerman’s story again. He was on his way back to his car in the gated community.  Suddenly, out of the dark, Trayvon attacks him, punching him to the ground, straddling him, pounding his head into the pavement with a vicious force.

Now the jury knew that Trayvon had gone to the store to get candy and that he was talking to a friend on his cell phone just before the incident; so they had no immediate context which could explain why he might suddenly act with violence.  All they had was his race and the racialized cultural narratives about anger and violence that are part of the American legacy of racist violence.  For reasonable doubt, that may have been all they needed.

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

Comments to “Race and reasonable doubt: Notes from the Sanford, Fla. verdict

  1. Let’s just stop pretending that we have one country here and split this monster up – oh we cant do that, i forgot we have to live together bc Lincoln said so – im moving back to Hong Kong

  2. You write:

    “Does an adult with a gun in his pocket have a reasonable fear that someone who has punched him and is now straddling him and pounding his head on the pavement is going to cause his death or at least grave bodily harm?”

    As a lawyer myself, I suppose, the answer should be: That depends on the situation: on who is straddling me at the very moment, pounding my head on the pavement. It would depend on the strength of the person relative to my own strength. And the point is: If s/he has managed to come so far: to straddle me and pound my head on my pavement: Would I not fear for my life? I would, and it would not depend on the race or gender of the person sitting on top of me: There are strong women, too, and strong older men – stronger than me, anyway. I think you are too quick discarding Mr. Zimmerman’s fear.

  3. In fact, one of the six jurors was of mixed black/Hispanic ethnicity — and she was not the one who held out longest for a manslaughter conviction.

    There would have been a second black juror, but the prosecution decided to strike that person because she watched Fox News. If you had to choose between seating an all-black jury of Fox News watchers, or an all-white jury of MSNBC watchers, which do you think would have been more likely to reach the correct result?

  4. The truth is that people filter facts and evidence to protect their belief system, and the identity politics that form the core of your belief system will simply not let you see the truth. And that is that the prosecution’s case was weak, and they lacked decent evidence to get a conviction regardless of the races of the individuals involved …

    Without a witness of the event, if you want to convince a jury that George Zimmerman racially profiled Trayvon Martin, confronted him, and acted as the aggressor, you will need a series of witnesses that claim this happened to them to prove that it was a typical pattern for George Zimmerman. You will not convince people of this with the argument “George Zimmerman looks kind-of white and therefore has to be a violent racist”.

    Even with that, as long as there is significant evidence that Trayvon Martin was on top of George Zimmerman and that George Zimmerman was being beaten it will be very difficult for a jury to convict him of murder or manslaughter.

    Finally, being that Trayvon Martin was witnessed running from the T-intersection towards his home and then the “fight” broke out at that T-intersection nearly 5 minutes later, it will be difficult to convince any jury that Trayvon Martin did not seek out a fight unless you can explain why he (probably) left the safety of his home to confront George Zimmerman.

    Essentially, there were three huge holes in the state’s case that led to George Zimmerman being found not guilty; and, regardless of the races involved, I’m doubtful the trial would have ended differently for anyone else.

  5. It’s black and white. Black jury acquits OJ Simpson, black man, of murder; white jury acquits George Zimmerman, white man, of murder. As constituted, the jury system of trial before one’s peers does not work in a country lacking racial homogeneity.

    It’s time for the courts to be given access to the secret census compilations of race, so that when interracial disputes arise, interracial murders, etc., the courts purposely can draft racially balanced jury pools, using census information. The inconvenience of possibly more hung juries would by far be outweighed by the reduction in miscarriages of justice that the country would enjoy as a result of such an improvement in court procedure.

    • Grand Jury and Petit Jury Pools may be the problem you describe, Kurt, based as they are on voter registration lists primarily. However, as to any particular jury, the prosecution, the defense and the judge see the prospects and question them to their satisfaction that irrelevant criteria will not determine any particular outcome, at least apparently.

      I listened to all of the OJ Simpson case. In my opinion, a conscientious jury would have reached the same conclusion that the “Black” jury you castigate would have reached. I also think his prosecution and conviction in Nevada was a travesty of justice, possibly based on racial prejudice, but more likely, merely personal bias against OJ.

      I was surprised by the Zimmerman acquittal simply because he did not testify to establish the bona fides of his self-defense –belief and fear. But I view it as vindication of the principle that guilt must be established beyond a reasonable doubt.

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