March 27, 2012

There’s No Justice Like Mob Justice

I was on the road in Richmond last week for court, which meant I spent more time watching cable news than I normally do. That was when I started to hear all about Trayvon Martin, the 17-year old kid shot in his own neighborhood by self-selected “neighborhood watchman” George Zimmerman. Once I knew the names, I noticed the blog posts and Facebook requests for outrage at the fact that Zimmerman had not been charged with any crime. Arrest, trial, and conviction was the only answer, it seemed.

Given my line of work, I didn’t sign up for any of those petitions. I will admit that the whole situation seems messed up beyond belief. It’s hard to believe that somebody who shoots and kills an unarmed kid doesn’t get immediately arrested, although release on bond might make sense. But two things keep me from grabbing a pitchfork and joining the growing crowds calling for an arrest.

First, it just goes against my constitutional makeup (although not the Constitution, of course) to demand someone go to prison based on news reports. I’m not sure whether that’s a result of my years as a criminal defense lawyer or if it was there beforehand and supports the work. Either way, it’s just not in my nature. Second, I’m a skeptic and more than anything else, skeptics want to hold out for all possible information before coming to a conclusion.

Now, we’re starting to see a counter narrative, as the local police release reports about the incident (via):
In Mr. Zimmerman’s account to the police, he returned to his S.U.V. after he was unable to find him. Trayvon then approached Mr. Zimmerman from behind and they exchanged words. Then, Mr. Zimmerman said, Trayvon hit him hard enough that he fell to the ground — which would explain what Mr. Zimmerman’s lawyer, Craig Sonner, has said was a broken nose — and began slamming his head into the sidewalk.
Of course, one needs to be skeptical of this account as well – Zimmerman, after all, is hardly a disinterested party and, given the outcry about their handling the shooting, the police department might not be, either. What it shows, however, is that there might really be two sides to this story.* The only way to make the incident cut and dried either way is to choose sides ahead of time and then cherry pick the alleged facts in a way that supports that side.

Which is, of course, what a trial would all be about, providing it gets that far. Florida’s self defense law is one of the most defendant friendly in the country, so the state has high hurdles to clear to even bring the case that far. And if it does, is any potential jury pool contaminated beyond repair?
If Zimmerman is indicted by state authorities for homicide, or for a federal hate crime, where in the world will the judiciary find an impartial jury? So many people have already convicted Zimmerman; so much prejudicial evidence and speculation have been so widely disseminated.

You can listen to the enhanced audio tape of Zimmerman’s 911 call, including an arguably audible racial slur. You can read about Zimmerman’s ‘long, lonely war against black people doing things.’ You can hear politicians and pundits ranging from Rick Santorum to Al Sharpton discrediting Zimmerman’s ‘stand your ground’ defense and demanding his arrest, and hear President Obama suggesting that Martin could have been his son. Or, you can join the nearly 2 million people who have signed a petition posted at by Martin’s parents calling for George Zimmerman’s murder prosecution. Who doesn't harbor preconceptions about this case?
As Wendy Kaminer points out, that’s the danger inherent in populist cries for justice in high profiles cases like this. Not only might it prompt a prosecution to satisfy political pressure, but it might make a truly fair trial nearly impossible. Having said that, impartial jurors have been found in other high profile cases (as OJ or Casey Anthony), and I’m not sure that, at the end of the day, this case will linger in memory any more than those. In addition, sometimes the popular groundswell gets it right and forces the state to actually do the right thing.

It’s a problem worth pondering and one to which there are probably no good solutions (as is usually the case). But at the very least, people should actively remind themselves to try and avoid coming to conclusions before all, or at least most, of the facts are in. We should be particularly eager to seek out facts from the “other” side of the issue, if only to wind up discarding them as false, misleading, or just irrelevant.

In the end, I think Jeralyn at TalkLeft summed it up best in response to a commenter who asked if she had formed an opinion about the case:
I am an advocate. With the possible exception of a few police and military misconduct cases, I view criminal cases through the lens of the Constitution and in a way that promotes the rights of those accused of crime.

I wasn’t there, no evidence has been introduced in court and my concern in cases like this is more with the fairness of the process. If Zimmerman is to be convicted of anything, it should be based on evidence admitted in court, not what one side or the other is telling the media. Trials should take place in courtrooms, not living rooms
On that last bit, at least, we should all agree.

* Old Vorlon proverb: there are three sides to every story – your side, their side, and the truth.

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