Suspicion Nation Read online

  This king-and queen-like power—you are free to go, you get charged with involuntary manslaughter, you get charged with murder and face life in prison—can almost never be challenged. Legal claims that prosecutors discriminated based on race in charging decisions have routinely failed, for example. The U.S. Supreme Court has deferred, allowing state attorneys to make these decisions without messy judicial oversight. Even the language prosecutors choose in their criminal complaints is hugely consequential, as Attorney General Eric Holder demonstrated in 2013 in directing his federal prosecutors to leave out specific drug quantities in low-level possession cases so as to avoid triggering draconian mandatory minimum laws. (Why not just change the laws? That would require acts of Congress. At the moment Congress is inert.) This one small change made by assistant U.S. attorneys means for potentially hundreds of thousands of drug offenders annually the difference between five or ten years in prison for a marijuana charge and no time at all. You (and your family) suffer the sucker-punch of a decade of incarceration; you just get probation. Who else in our legal system has that kind of power?

  Most people think that judges wield the most authority in the system, but prosecutors are the gatekeepers who decide who even gets through the funnel to see a judge. Few do, because of all that plea bargaining, and so judges see only one in twenty offenders at trial. Even then, judges’ hands are often tied by strict sentencing guidelines, and their decisions are subject to review by higher courts. Some high-profile judges have even resigned from their cushy lifetime appointments over the limits on their ability to rule in favor of what they think is right. Federal Judge Lawrence Irving said in frustration when he stepped down, “If I remain on the bench I have no choice but to follow the law. I just can’t, in good conscience, continue to do this. I’ve had a problem with mandatory sentencing in almost every case that’s come before me.”16

  I’ve never heard of a prosecutor resigning because he or she did not have enough power, or not enough discretion, and I probably never will.

  As a result of the power to charge, to offer pleas, or to take cases to trial, most prosecutors have impressive-sounding trial records. In the Zimmerman case, assistant state attorney (as prosecutors are called in Florida) Bernie de la Rionda claimed to have an 80-1 win-loss record before the trial began. Wow! Wasn’t the defense scared? No, probably not. While most prosecutors are good courtroom lawyers (as are most defense attorneys), that type of trial record is not unusual for state attorneys for two other reasons: because most juries will convict (who are you going to believe, that nice uniformed police officer or the sketchy looking guy who sits before you who’s accused of assault?), and more importantly, prosecutors generally only bring strong cases to trial—cases they feel confident they’ll win. (Defense attorneys, by contrast, are so used to losing that they consider a trial a win if their client is convicted of anything other than the top charge.)

  Understanding the peculiarities of the Zimmerman murder trial requires grasping this key overarching fact: The Zimmerman trial was an exception to this rule. Prosecutors did not choose it. They did not get to exercise their usual discretion. In a very real sense, the case was foisted upon them. In fact, for the first forty-five days after the shooting, law enforcement refused to charge Zimmerman with any crime at all because prosecutors believed that they did not have the evidence to disprove Zimmerman’s selfdefense story. But then a groundswell of public protest and media attention changed all that, and it forced law enforcement to take an action it did not want to take: arresting George Zimmerman.

  Here’s the unusual way it all went down: Trayvon Martin was shot and killed at 7:17 PM on Sunday evening, February 26, 2012. We know the precise time because the fatal shot is heard on the Lauer 911 call (of the seven neighbors who called 911 before or after the shooting, Jenna Lauer’s call captured screaming and the fatal gunshot.) Trayvon was not carrying identification, which makes sense for a kid just taking a walk to a nearby 7-Eleven. Disturbingly, after finding his body, police did not knock on doors in the neighborhood to see if anyone knew him. Did police assume Trayvon did not live in that gated suburban community? That he could not have been an invited guest there? First responders spoke to a few residents who gathered outside after the shooting but did not conduct a door-to-door search asking if anyone knew the teenager who’d just been shot and killed in the gated community. Had they gone a few hundred feet, knocking on less than a dozen doors, they would have come to the home of Brandy Green, where Brandy’s fourteen-year-old son, Chad Joseph, who was waiting for Trayvon’s return, would have identified the body. (Chad didn’t hear the incident because he had headphones on and was playing Playstation 3 in an upstairs bedroom.) Trayvon’s father, Tracy Martin, out to dinner with his fiancée, Brandy Green, would surely have been contacted right away. He would then have had the opportunity to raise questions about Zimmerman’s selfdefense story immediately. (Zimmerman said that Trayvon leaped out of the bushes in a homicidal rage? Come on, Tracy Martin would likely have said. Trayvon was so quiet and mild-mannered that his nickname was Mouse.)

  Instead, Trayvon’s body was taken to the morgue as a John Doe. His father assumed Trayvon had gone to a late-night movie with a friend and was not concerned about Trayvon’s absence until Monday morning, when he reported him missing to the police. Once Tracy Martin made that call, law enforcement put together that the homicide victim was Tracy Martin’s son. Police came to Brandy Green’s door that Monday morning and delivered to Tracy Martin the shattering news that his son had been fatally shot just down the walkway the night before.

  By Wednesday morning, still in shock, Tracy Martin went to the Sanford Police Department looking for answers, and in particular, looking for an arrest. His son had been killed walking home from a 7-Eleven, armed only with candy and a fruit drink. Police knew who the shooter was. What was taking so long? Why was Zimmerman still free?

  Getting nowhere with police, Martin turned in frustration to a family member who referred him to Tallahassee civil rights attorney Benjamin Crump. In 2006, Crump won a $7.2 million judgment against the state of Florida in a high-profile case on behalf of the family of Martin Lee Anderson, a black teenager who died in a boot-camp-style youth detention center. The case led to the closures of juvenile boot camps17 in the state of Florida and local fame for Crump, especially in the African-American community.

  Crump’s practice is kept busy representing families of black Floridians killed under suspicious circumstances, usually by police. When he took Tracy Martin’s call,18 he was in court on behalf of the family of a black bail bondsman who had been shot and killed by a sheriff’s deputy in Jacksonville, Florida, 125 miles north of Sanford.

  Initially Crump did not take the Zimmerman case because he was confident that Zimmerman would be arrested in short order. Patience, Crump counseled. It’s only been two days, he told Tracy Martin. The system will work. Police are surely investigating the matter, and Zimmerman will be arrested soon. “I believed in my heart of hearts they were going to arrest him,” Crump told the Associated Press19 a month later. “I said, ‘Oh, they are going to arrest him. You don’t need me on this.’”

  But as days went by and no arrest was forthcoming, Crump knew something was wrong. The son of a soldier and a hotel maid, Crump, who is African American, had attended segregated schools until the fifth grade. He had a keen sense of civil rights injustices and understood that this was a case with monumental implications for the black community. And he began to see that his initial assessment was wrong. In fact, he was very much needed if an arrest was to happen.

  Obtaining no resolution from the police, Crump made the fateful choice to take his case to the media.20 He orchestrated a few press conferences with Trayvon’s grieving parents speaking searingly of their loss. Initially only local media in Florida picked up the story. Then, Crump ratcheted up the pressure by enlisting U.S. Rep. Corrine Brown to help convince authorities to release the 911 tapes, recordings that brought the case to the attention of t
he national media. Working with civil rights activists, he organized a series of rallies demanding justice for Trayvon.

  Crump contacted New York–based civil rights leader Reverend Al Sharpton (“Rev. Al”), head of the National Action Network, who in turn reached out to Pastor Ronald Durham of the Greater Friendship Baptist Church in Daytona Beach, Florida, a short drive from Sanford. Pastor Durham, a sixty-something local National Action Network leader with thirty-eight years in the ministry, who favors flashy gold and diamond rings and cufflinks, sprang into action. Together with other local clergy, he began to organize a rally. Immediately they realized that a church with a few hundred seats would not be big enough to contain the anger that was growing in central Florida over the unarmed black teenager who had been shot dead and the police’s failure to arrest the known shooter. Working closely with city representatives, whom Pastor Durham calls “extremely, extremely cooperative,” the local organizers reviewed every detail to be sure that community activities and traffic patterns would not be disrupted, assuring the city that the rally would be entirely law-abiding, which it was. (Later, in the pretrial jury selection phase, juror B37 would grossly mischaracterize this and related peaceful gatherings as “riots”—and though the prosecution had the opportunity to strike her from the jury panel, they did not.)

  Pastor Durham called the rally a “star-studded event,” featuring Rev. Al; TV’s Judge Mathis; radio personality Michael Baisden; NAACP President Ben Jealous; Joe Madison, Sirius radio’s “the Black Eagle”; and Marc Morial, CEO of the National Urban League, the nation’s largest civil rights organization. Even more moving to Pastor Durham was that in just a few weeks’ time, a passion for justice for Trayvon, a previously unknown high school student, had spread not only nationally but internationally. “People traveled to the rally from Hawaii, Australia, the UK, and France,” he told me. Police estimated the crowd exceeded 30,000, he said. Spirited but peaceful demonstrations also occurred in New York, Washington, D.C., Los Angeles, and in other locations, demanding Zimmerman’s arrest.

  The first national media coverage of the case occurred on CBS This Morning on March 8, 2012. Websites, bloggers, and other national media quickly picked up the story. By the end of March 2012, nationally prominent black journalists took the lead in keeping the spotlight on. George Zimmerman’s police call was made public, with the officer famously telling Zimmerman not to follow Trayvon. The Lauer 911 call was released, with the anguished, high-pitched screams followed by the gunshot that killed Trayvon. Sanford police chief Bill Lee21 announced that he could not dispute Zimmerman’s claim of selfdefense. These and other new bits of information gave the story “legs”—news hooks that spurred on further broadcasts about the man who walked free after shooting an unarmed teenager. CNN’s Don Lemon covered the story extensively on his weekend show. On MSNBC, Melissa Harris-Perry22 said, “His name is Trayvon Martin. When innocent children are killed, when their parents are left to wonder if their children’s lives matter at all, at least we can remember their names.” Joy-Ann Reid, managing editor of TheGrio.com and MSNBC contributor, jumped on the story early, penning frequent in-depth pieces about the killing and its aftermath. The New York Times’ columnist Charles M. Blow wrote about his personal fears for his black sons; Jonathan Capehart of the Washington Post said, “one of the burdens of being a black male is carrying the heavy weight of others’ suspicions.”23 (These journalists and many others continued to cover the story extensively through the end of the trial.)

  By the end of March, Rev. Al and civil rights activist Jesse Jackson had flown down to Florida to meet with Crump, discuss the case, and lead demonstrations. Rev. Al quickly became the leading national figure keeping attention on the case.

  Worldwide press24 covered the case as well. In the forty-five days between Trayvon’s shooting and Zimmerman’s indictment, France’s leading news site Le Monde ran twelve news items on the story. The UK’s The Guardian ran thirteen, outdone slightly by its domestic rival The Sun, which inked fifteen stories. Six pieces were published during this brief time period by Peru’s El Comercio, ten from Peru’s La República, and six by Cuba’s Granma.

  As Zimmerman remained a free man, international press zeroed in on the painful racial issues underlying the case. The Guardian led with Mamie Till’s chilling warning to her fourteen-year-old son Emmett, as he headed south from Chicago to Mississippi for the summer of 1955: “If you have to get on your knees and bow when a white person goes past,” she told him, “Do it willingly.” (It was no use. Three days after Emmett Till either said, “Bye, baby,” or whistled at a white woman in a grocery store, his body was fished out of the Tallahatchie River with a bullet in his skull, an eye gouged out, and his forehead crushed. An all-white jury acquitted two men after just sixty-seven minutes of deliberation. “If we hadn’t stopped to drink pop,” said one juror, “it wouldn’t have taken that long.” Later the killers confessed to Look magazine, saying that they had only intended to scare Emmett, but when he refused to beg for mercy they “had to kill him.”)

  From the European perspective, little had changed in America.

  Le Monde went after American Stand Your Ground laws, derisively calling the United States “pays des homicide justifiable,” “the land of justifiable homicides.”25 (Stand Your Ground and selfdefense are a subset of justifiable homicides under American law.)

  And everyone, it seemed, was appalled by America’s lack of firearm restrictions. Le Monde played on Florida’s official state nickname, The Sunshine State, calling it “The Gunshine State.”26 Many overseas publications expressed horror at the sky-high numbers of American shooting deaths annually. (This is not new. The rest of the world has been aghast at the U.S. gun death rate, the highest in the developed world,27 for decades. Foreigners write polite, confused pieces28 puzzling over why Americans own more guns per capita than any other country in the world, when their own countries figured out long ago that reducing the number of firearms reduces gun deaths.)

  Alongside the world press, millions of individuals using social media, a powerful new global force, clamored for justice.29 Kevin Cunningham, a Howard University law school graduate who heard about the story, launched a petition on Change.org on March 8, 2012, which Trayvon’s parents then took over, called “Prosecute the Killer of Our Son, 17-year-old Trayvon Martin.” The petition quickly broke all records on that website, garnering two million signatures by March 26, 2012. At times, 1,000 people were signing per minute. On Twitter, Spike Lee, Mia Farrow, Cher, and John Legend urged their followers to sign. By March 17, 2012, #Trayvon was trending on Twitter—meaning it was one of the top-ten topics Twitter’s 500 million users were discussing. Later, #Justice4Trayvon became a popular hashtag, tweeted by Rihanna, will.i.am, Miley Cyrus, and dozens of other pop stars. The story of the unarmed kid walking down the street with Skittles and a soft drink, shot dead, the killer known but still at large, had caught fire as an obvious injustice crying out for an arrest.

  Thus, by the end of March, one month after Trayvon was killed, Florida, the United States, and the world were watching. A teenager—whose mother was a county housing authority employee and whose father was a truck driver—was becoming a household name. A movement was afoot. Generous county employees including Miami-Dade’s deputy mayor Jack Osterholt donated a total of eight months of paid vacation time30 to Trayvon’s mother, Sybrina Fulton, to enable her to pursue justice for her son. On March 23, 2012, the members of the Miami Heat basketball team all donned hoodies in support of Trayvon, and President Obama called Trayvon’s death a national tragedy.31

  Aided by celebrities and buoyed by a tidal wave of media attention, Trayvon’s parents kept doing interviews and marching for justice. Indeed, key to fanning the flames of national attention was the united resolve of Sybrina Fulton and Tracy Martin to submit themselves to interview after interview, answering the same agonizing questions about the very recent death of their beloved son. News organizations always prefer to speak directly to “players�
�—people directly involved in a story—rather than advocates (like Crump) or legal analysts (like me). Fulton and Martin’s willingness to endure so many interviews so shortly after Trayvon’s death was instrumental in propelling the story to national and even international attention.

  That old and new media firestorm quickly produced results. On March 22, 2012, Sanford police chief Bill Lee, who had become reviled for not arresting Zimmerman, was placed on paid leave. (Two months later, he was terminated “without cause.”) State Attorney Angela Corey, designated by Governer Rick Scott as special prosecutor on March 23, was asked to review the case and make an independent determination as to whether Zimmerman should be charged and tried. Most observers, including me, expected her to submit the matter to a grand jury, a group of fifteen to twenty-one Floridians called upon to investigate legal matters as directed by a prosecutor and issue indictments (or not) and official reports of their findings. Grand juries almost always return the indictment (the legal charge) the prosecutor requests because grand jury proceedings are entirely one-sided: prosecutors present their case unburdened by the presence of any defense attorneys objecting, raising their own arguments, or otherwise participating in the proceeding in any way. “A grand jury will indict a ham sandwich,” lawyers like to say. Still, submitting the matter to a group of individuals conscripted by the community means losing some control over the outcome. A grand jury was scheduled to convene on April 10, 2012, but was then cancelled. Corey, perhaps seeking to end the increasing media and public outcry, swiftly and decisively made the surprising move of choosing her other option: directly filing second-degree murder charges herself, which she did on April 11, 2012.