Suspicion Nation Page 5

  Many people who had signed petitions, spoken out, blogged, or demonstrated for the arrest of George Zimmerman rejoiced. At last, he would be brought to justice.

  Corey then handed off the case to several prosecutors who had not exercised the prosecutorial discretion they would have in a typical case. Instead, the case was assigned to them. They did not choose whether to charge Zimmerman, and if so, what crime to charge him with. (Indeed, many criticized Corey for overcharging, arguing that she aimed too high and instead should have charged Zimmerman with the easier-to-prove crime of manslaughter.) They did not have the option to plea bargain the case to a lower-level crime with a lesser penalty, as the same public that demanded an arrest would have deafened them with its outcry if Zimmerman had been allowed to take a deal. And anyway, Zimmerman’s attorneys32 announced that they would not take a plea deal of any kind.

  The prosecution’s hands were tied.

  Arrest George Zimmerman? On first pass, the State of Florida said no, but the public said yes, and the public prevailed. But the arrest, seen as a monumental victory by many, was only the beginning.

  Down in central Florida, Pastor Durham told me that on April 11, 2012, when Zimmerman was arrested, he thought, “phew, finally we’re going to get justice.” He felt a tremendous satisfaction that Zimmerman had at last been officially charged. Though he was so loyal to his state that his blood had “turned to orange juice” (apparently this is a Florida-ism), he told me that the northerner in him was optimistic that Zimmerman would be convicted. If they didn’t get him on that top charge of second-degree murder, then for something, surely. Zimmerman could not possibly escape entirely. Yet “an amazing number” of his congregants at the Greater Friendship Baptist Church immediately tempered his optimism. “We know you’re happy,” they told him, “but it’s not necessarily going to have the outcome you expect.” Chilling words in that Florida heat.33

  What these native southerners understood implicitly was that an arrest is merely an accusation that must be proven at trial through the introduction of admissible evidence—a job that would now be entirely within the control of the state attorneys’ office. The groundswell that produced Zimmerman’s arrest could not get into the courtroom and try the case for the State of Florida. World opinion that had shined a bright light on racial profiling could not teach its lawyers how to compellingly handle the sensitive subject of race in the courtroom. Community organizers could not review the evidence for the state attorneys and point to the “smoking gun,” or intelligently prepare their witnesses, or choose experts for them, or work out a winning trial strategy for them.

  Those jobs were for the state attorneys to do themselves, behind closed doors, as they prepared for trial, and as they presented the case in the courtroom over a year later. Handling the trial preparation and the trial itself was the one major piece of prosecutorial discretion that remained.

  A prosecution team was assembled to try a case that virtually no one in law enforcement wanted to take to trial. The passion and mandate had come from the outside, not within. Police and prosecutors had believed Zimmerman’s selfdefense story, and neither the outside agitation nor the Special Prosecutor had changed their hearts and minds.

  And that made all the difference. Because the overlooked evidence, lack of witness preparation, and poor strategic choices made by the state’s attorneys were nothing short of astonishing.

  TWO

  The State Misses Its Best Evidence

  THE INCIDENT THAT culminated in Trayvon’s death on the night of February 26, 2012, divides into two phases. In Phase 1, Trayvon Martin walks back to the home of his father’s fiancée, talking on his cell phone with his friend Rachel Jeantel, who is in Miami, 250 miles away. He is carrying candy for Chad Joseph and an Arizona watermelon drink for himself (often mistakenly referred to as an iced tea because the police logged it incorrectly in their crime scene records).

  At the same time, a few minutes after 7 PM, Zimmerman is driving to Target in his SUV, looks out the window, and sees Trayvon. Immediately, he calls the police, identifying Travyon as “a real suspicious guy,” ostensibly because Trayvon is walking slowly in the rain. That four-minute phone call34 records Zimmerman watching, following, and then apparently moving quickly on foot, breathing heavily, to catch Trayvon. “I don’t know what his deal is,” Zimmerman says. “Are you following him?” the police dispatcher asks Zimmerman. He admits he is. “We don’t need you to do that,” he’s told. He continues following Trayvon anyway.

  During Phase 1, the teenager and the twenty-eight-year-old man have not yet met. As each is talking on the phone during this time period, though, we do have a fairly good sense of their mindsets. Zimmerman believes Trayvon is a criminal (“there have been a lot of burglaries in the area … these assholes, they always get away”), and Trayvon, after observing Zimmerman following him, is fearful of Zimmerman, whom he calls, among other things, “creepy.” Trayvon is concerned about the older man who is staring at him, following him, watching him. (On their phone call, the two teens warily discuss what might be happening. Jeantel tells Trayvon that she is afraid that the guy might be a rapist, and that he should run. At first Trayvon doesn’t believe that is necessary, as he is almost home, and he thinks he’s lost Zimmerman. When Zimmerman reappears, both sides agree, Trayvon does run.)

  Though Zimmerman’s behavior in Phase 1 is deeply disturbing (as we shall examine further in the next chapter) and relevant to the issue of intent, it is not illegal. It was not illegal for him to look out his car window and jump to insulting conclusions about a stranger. It was not illegal for him to say Trayvon was suspicious when he was just minding his own business because that was Zimmerman’s opinion. As long as he wasn’t lying to police, merely expressing his opinion to them was not illegal. It was not even illegal for Zimmerman to continue following Trayvon after the police dispatcher said, “We don’t need you to do that,” since that was merely a suggestion, which he was free to ignore. Some have suggested that Zimmerman “stalked” Trayvon. In the legal sense of that word, Zimmerman’s behavior—spending a few minutes watching, then following, Trayvon—does not rise to the level of stalking.

  Even racial profiling—making unfair assumptions about another in part on account of race—by a private citizen is not illegal in and of itself. If Trayvon had made it home that night, and only Phase 1 had transpired, no crime would have been committed.

  From the standpoint of the criminal trial, Phase 2, when the two met, interacted, and became physical, was the core of the case. According to one of Zimmerman’s versions of the evening, Trayvon “jumped out of the bushes” and sucker punched him in the face.35 From the force of the blow, Zimmerman then fell down on his back onto the grass, he says, and Trayvon mounted him, Trayvon’s knees to Zimmerman’s armpits, and then pounded Zimmerman’s head onto the concrete.36 Critically—this is the most important part of his selfdefense story—Zimmerman claimed that as he was being assaulted in this position, Trayvon saw Zimmerman’s gun and reached for it, saying, “You’re gonna die tonight, motherfucker.” Zimmerman says at that life-or-death moment, he drew his gun first and fired it once at Trayvon’s heart, to save his own life.37

  An important legal decision flowed from the defense’s decision to stick with this story. Because Zimmerman claimed he was pinned down, the defense opted not to argue a “Stand Your Ground” defense. Stand Your Ground was a relatively recent Florida law that eliminated the old requirement that a combatant retreat from violence if an escape is possible. Since Zimmerman maintained that Trayvon was restraining him, and retreat was therefore impossible, the defense acknowledged early on that Stand Your Ground was inapplicable to the case. Before trial, the defense explicitly waived Zimmerman’s right to a pretrial Stand Your Ground hearing which, had the defense prevailed there, could have exonerated him entirely without the need for a full-blown trial. They gave up this opportunity for an early win because they knew they didn’t have the facts to support a Stand Your Ground def
ense. (Yet Stand Your Ground language seeped into the jury instructions and into at least one juror’s decision to acquit, as we’ll see.)

  We don’t have Trayvon’s account of what happened in Phase 2. His call with Jeantel dropped just as the first words were spoken between Zimmerman and Trayvon (according to Jeantel, Trayvon said, “Why are you following me?” and Zimmerman said, “What are you doing around here?”) Minutes later, the first police officer arrived, and Trayvon was already dead.

  No one witnessed the moment of the shooting. Some neighbors saw or heard some portions of the altercation. One saw two men on their feet, moving across the grass (inconsistent with Zimmerman’s story). One saw Zimmerman on top, Trayvon on the bottom (inconsistent with Zimmerman’s story). One saw Trayvon on top, Zimmerman on the bottom (consistent with Zimmerman’s story). No one could confirm Zimmerman’s critically important details: (i) that Trayvon was banging Zimmerman’s head on the concrete in the final moments before Zimmerman killed him; (ii) that Trayvon saw and reached for the gun; and (iii) that at that moment, Zimmerman pulled the gun and fired.

  In the courtroom, Phase 2 was key, both from the legal and commonsense angles. It was obvious from the outset that if the jury believed that Zimmerman was down on his back, pinned, his head getting painfully banged on the concrete, his gun visible to Trayvon, and Trayvon reached for the weapon, menacing him, that that situation would be so terrifying that of course he would take out his weapon and shoot to defend himself. Wouldn’t any of us do that? We wouldn’t be required to wait another second. Kill or be killed. If Zimmerman’s story about those final few seconds was true, the case was over, and he would walk. And he should.

  Thus, if they believed in their case, it was absolutely essential that the prosecution focus on and disprove these three allegations. Instead, remarkably, the prosecution essentially conceded Zimmerman’s version of what happened, so that by the end of the trial, the jury saw both sides reenacting the defense scenario.

  Shrewdly driving home to the jury the life-or-death nature of the altercation according to Zimmerman, the defense reenacted the scene in the courtroom, with lanky defense attorney Mark O’Mara (playing the role of Trayvon) straddling a life-sized mannequin (representing Zimmerman) in a vivid, live demonstration. O’Mara, an effective trial showman, grabbed the mannequin’s torso and pounded its head on the floor, BAM BAM BAM, as the jury looked on, transfixed. By the end of the trial, the prosecution had accepted this picture and joined the defense in straddling the mannequin, arguing mainly about the details, reinforcing the terrifying image of a man down, pinned, beaten nearly to death before he managed to unholster his gun and fire it to save his life.

  We know now that the jury believed that Trayvon had Zimmerman down, was assaulting him and reaching for his gun, and because they understood the law allowed him to “meet force with force,” they acquitted Zimmerman. This visual demonstration was important to them in reaching that understanding.

  Unfortunately, that conclusion was based on a misapprehension of both the law and the evidence, both of which were poorly presented to them in the courtroom. Because the prosecution did not walk the jury through the three simple, essential elements of the law of selfdefense, and because the state failed to give the jury a realistic reenactment that incorporated all the known evidence, they were left with the oversimplified, erroneous impression that Zimmerman simply met force with force once he was down, which was permitted.

  Saving one’s own life is a natural, normal human instinct, and the law, as it should, permits us all to do that, even if it requires taking the life of another. But only when absolutely necessary, under real, honest-to-God life-or-death circumstances. Because under our laws, human life is paramount. In a classic law school example, one may not set up a spring-loaded device to kill a burglar entering one’s empty home. Why not? Because human life has a higher value than property. Human life has a higher value than anything else (or at least, it used to. More on this in Chapter Eleven). Thus it is not permissible in an ordinary fistfight, say, to take out a gun and kill the other guy. Two men wrestling on the ground should not result in one of them losing his life. We are not barbarians.

  Legally, in fact, this case was relatively simple. There was no doubt whatsoever that Zimmerman shot and killed Trayvon, and that he did so intentionally. He admitted he did that—he took out the gun on purpose, pointed it at Trayvon, and pulled the trigger, intending to shoot him. “I took my gun, aimed it at him, and fired,”38 Zimmerman told police. There was no accident. Not a case of, “I took the gun out just to scare him and—oops—it went off!” He didn’t unholster the gun to clean it. He didn’t intend to shoot someone else. No, this was always an intentional homicide. (If he killed with hatred, malice, or ill will, then the crime is second-degree murder, the top charge. Was it an intentional killing without those factors? Then the crime is manslaughter.)

  The only real question for the jury in the trial was whether Zimmerman killed in selfdefense, as he claimed immediately that night and throughout the trial. If he truly shot Trayvon in selfdefense, he must be found not guilty. Because an intentional killing is perfectly legal if all the elements of selfdefense are met.

  When may a person kill in selfdefense, then?

  Florida law is brief and clear on this point. The entire relevant portion of the law39 as applied to this case is:

  [A] person is justified in the use of deadly force and does not have

  a duty to retreat if:

  (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

  Three important concepts jump out of this one sentence. Zimmerman’s shooting of Trayvon was in selfdefense if he (i) reasonably believed he had to shoot to prevent (ii) imminent (iii) death or great bodily harm. All three of these factors had to be present. If the prosecution disproved one or more of them, Zimmerman did not act in selfdefense. Then we are back to the fact that he intentionally shot Trayvon, and the only options would be manslaughter (intentional killing) or murder (intentional killing with hatred, ill will, or spite).

  First, a quick look at reasonableness—a common phrase that sweeps through so much of American law. We are almost always required to behave rationally, sensibly, fairly. In our civil and criminal courts, the law does not reward extremists, whack jobs, people who fly off the handle. In sexual harassment cases, for example, juries deciding whether workplace misconduct is bad enough to constitute a hostile environment are instructed to evaluate the facts from the objective standpoint of a “reasonable person.” (This used to be the “reasonable man” test, which, especially in sexual harassment law, was a mess. We’ve evolved.) Civil rights law does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive.”40 On the criminal side, a shooter’s fear of his victim must be reasonable. We will not reward someone, smoking gun in hand, who says, “I feared him because he looked at me sideways. Maybe you wouldn’t shoot for that reason, but that just bugs me. It freaks me out.” Nope, not reasonable. (Law students! When in doubt on your law school exams, apply a reasonableness test. Odds are high you’ll be at least partially right.)

  Therefore, Zimmerman could not shoot even if he really and truly feared death if his fear was unreasonable—he misread the situation, he panicked, he lost it. Thus the jury was required to review all the evidence to determine whether Zimmerman’s assessment of the situation was levelheaded or exaggerated.

  Second, imminence. He could shoot if he feared death, but only if that threat was upon him at that very moment. If the concern was that he could be killed some time in the future—in five or ten minutes, say—the element of imminence would not be met. Similarly, if he feared death based on events of minutes earlier, the threat from which had now dissipated, that would not be imminent danger.

  Third, death or great bodily harm. We may kill in selfdefense only to save our own lives, or to save ourselves from major, horrible, crippling injury
. Zimmerman could not shoot if he feared only bruises, scrapes, or humiliation. Minor injuries are part of the rough and tumble of life we are all expected to endure stoically—reasonably—and are insufficient to justify taking the life of another.

  All these restrictions on selfdefense should have been important at the trial, but one barely heard a word about them from the prosecution team, who left the jury with the false impression that if Zimmerman was getting assaulted, he could shoot to kill, or “meet force with force,” as the jury incorrectly understood it.

  With these three elements firmly in mind, let’s examine the evidence. In this and every murder case, we are short one witness. We know that we are only hearing the killer’s side of the story, and the deceased cannot speak, so we must be vigilant in analyzing the shooter’s story. Since most people know that killing in selfdefense is not a crime—and Zimmerman, for sure, knew this because his criminal justice professor testified at trial that he’d been taught the law of selfdefense and had even received an A in the class—the killer’s account of what happened must be approached skeptically, lined up with any and all available evidence and the selfdefense statute, to ascertain whether it holds together or whether the shooter is lying to avoid life in prison. Not all shooters are liars, but they all have a powerful motive to lie: to avoid incarceration.

  Thus all aspects of Zimmerman’s story, like that of anyone who has killed another human being, should have been combed over again and again by law enforcement and the state’s attorneys. His version should not have been taken with a grain of salt. It should have been taken with the entire Pacific Ocean’s supply of salt.

  Consider Zimmerman’s holster. Admitted into evidence, we know to a certainty that it was a matte (i.e. not shiny) black “inside-waistband holster.” Zimmerman’s best friend, Mark Osterman, who persuaded Zimmerman to purchase and carry a hidden weapon, confirmed in his trial testimony that the entire purpose of this type of holster is concealment.41 Zimmerman’s choice of gun, a KelTec 9mm PF-9 semiautomatic handgun, is a popular choice for concealed carry. And Zimmerman had obtained a concealed carry permit. So there is little doubt that Zimmerman’s gun and holster were hidden from view, as intended by the manufacturers.