Tuesday, July 16, 2013

On The Zimmerman Verdict

Before ...

Conspiracy Theory: 'Zimmerman Put On Weight To Look Harmless'
You were holding your breath for The Omnivore's take on the George Zimmerman verdict, weren't you? Here it is.

A few necessary caveats:
  • IANAL: I am not a lawyer. This means two things--the first is that you can't take my legal advice but the second is that I am at the mercy of analysts who, presumably, have legal training to get things right. Thus, my legal understanding of things is certainly wrong somewhere and could be wrong everywhere.
  • I did not follow the case closely. This was a very "high resolution" case (even for being outside the courtroom). There was heavy blog coverage and a lot of stuff on Twitter. I have done my reading but I do not claim to be an expert--even in the outside coverage of it. I have not followed it as closely as some. This may have skewed my perspective.
  • The Ref Needs Glasses. It is very human--and very stupid--to assume that you, at home on your couch, know better what happened than someone who was right there. In sports this leads to calling things differently than a referee (who, in addition to being right there is a also a professional at making these calls--something we, generally, are not). Second-guessing everyone from the cops to the attorneys, to the jurors is necessarily an exercise in narcissism. I do not think I know better or could do better. This is my inexpert and at-a-distance opinion.
What Should The Verdict Have Been?
The Omnivore's best guess is: Manslaughter. You may be asking why that is. Let me explain:

Did Zimmerman Get Out Of His Car Intending To Shoot Martin?
I think the answer is almost certainly no. I do suspect (strongly) he got out of the car intending to confront Martin--possibly to catch him "in the act" (of burglarizing a home) and he might not have done that without a gun--but I do not believe he got out of the car intending to kill him. 

There is no evidence of that and nothing in Zimmerman's character. That should take Murder-1 off the table.

But He Did Racially Profile Him, Right?
Zimmerman all but certainly profiled Martin: he sized him up as a young black male who, I would guess, he believed was within the age range of most criminals (around 16-24?). How can I say this? Do you believe Zimmerman would have stopped or called in the report if instead of Trayvon Martin it had been a 65 year old black guy? No--he would not have. Is this because Zimmerman's computer-like brain would have calculated the odds that any given set of racial / age / gender demographics was a criminal and acted only within a given range of certainty?

If you believe Zimmerman possess such a brain and the FBI database of information necessary to make such a calculation you are an idiot.

On the other hand, we can ask if Zimmerman would have gone into Jr. G-Man mode for a 17 year old single black girl walking home. I suspect the answer is: no. I can't be sure--but it's my guess.

We can also assume that everything Zimmerman has ever done or said has been screened for racism. If he ever used a racial slur as a screen name for a video game or attended any meetings with Florida separatists (hey, you laugh--but Key West actually seceded--something that's just a wet dream for most Texas secessionists) we'd know (ask Rand Paul). 

This takes a degree of the "racial" out of the profiling off the table. Zimmerman may well be a racist--but if he is, it is likely of the 'garden variety' of racism and therefore I conclude a lot of the people calling him racist are racist themselves by that standard.

The question as to whether any potential white guy (same hoodie, looks rough, etc.) would have triggered Zimmerman is more salient and unanswerable. My gut says 'it would take more than a hoodie' but, again, I can't be certain.

Certainly Zimmerman Ignored a Police Order Not To Follow Martin, Though, Right? That's suspicious.
No--Martin ignored a piece of advice from a 9/11 dispatch. This is very, very different than ignoring an order from anyone and certainly different than ignoring an order from the police. The fact that Zimmerman's story suggests he was in compliance (and was just looking for an address) means little to me. I suspect Zimmerman, like most people, has put forth (over several attempts) the best possible interpretation of his actions (just as the prosecution must put forth the worst). Even if the truth lies somewhere in the middle, his actions still do not constitute "ignoring a police order" (I have seen a lot of people online suggest this is the case).

It is, however, suspicious--and the fact that Zimmerman ignored some good advice is relevant (even if it was weakly phrased as "We don't need you to do that."--something you might say if your mother in law was offering to get you iced tea and you thought you might as well get it yourself). It's what makes me think he wanted to be a hero and therefore was quite willing to risk confrontation.

Wasn't Zimmerman Just a Vigilante?
Vigilantes do not usually call the police. If Zimmerman had exited the car with the intention to bring justice down on Trayvon he would have hand his gun in his hand or at least at the ready (his hand on it). He claims he was hit from surprise--I don't give that much credence but I similarly do not think he was acting in a way consistent with someone who wished to judge (and then execute) Martin.

I do not think that if Zimmerman wasn't being beat up he would have shot Martin.

Do I Think Zimmerman Hit Trayvon First?
I do not. I suspect that Martin hit Zimmerman first. Why? Two reasons. The first was that I think Martin also wanted a confrontation--he was being followed / harassed. He could, as I understand it, just have gone home. The second reason is simply that I don't think Zimmerman could hit very well. Although he may have been bigger (reports I have seen are very different as to who was larger when they confronted each other) I think it is clear that Martin was more athletic and probably more physically capable. Zimmerman's "soft" affect may be mostly for show--but not entirely. 

Men, absent alcohol and women, rarely start fist fights with other men they aren't pretty sure they can beat up (go check out all those guys with 'anger issues' in Domestic Violence cases--you will find an ASTOUNDING lack of them losing their precious control against bikers and MMA guys. One might ALMOST conclude that their claims of being "out of their heads" only seem to apply when they have a 100lb advantage on their 'oppressor' ...).

I think Trayvon hit Zimmerman first.

Before you go off on me: I don't think that justifies Zimmerman shooting him.

I'm also totally not sure that happened. For all I know, Zimmerman, backed up by the gun, could have hit Martin first--or pushed him--or grabbed him--or whatever. That's possible--but take it from someone who has carried a gun and pointed it at another man with potentially lethal intent (that is: I would have shot the guy if he'd moved aggressively)--that feeling of power comes only when you are holding the gun. It doesn't come when you aren't--a least it didn't for me.

Why Not Murder 2?
Because the lawyers I read said Murder 2 was a stretch. To my understanding Murder-2 requires evil intent in the acts that get someone killed. Manslaughter requires criminal negligence. I think that potentially trying to stop a burglary or wanting 'to be a hero' doesn't meet the bar for evil intent. If Zimmerman had exited the vehicle planning to beat down Martin and had wound up shooting him, I could go with Murder 2 (no idea what the law says) but I simply don't see the evidence that's the case.

As I said, I think Zimmerman probably wanted to continue to be part of the story--but I doubt he wanted a physical confrontation with Martin--and if he did he would have been far more ready to shoot than he apparently was. I think this was stupid--and, for what I know of Zimmerman's biography, it is part of a chain in a long line of bad decisions--but I don't think he got out of the vehicle intending, specifically, to assault Martin.

On the other hand, I think that his willingness to insert himself into the situation armed with a deadly (if legal) weapon speaks to a kind of carelessness for human life that could well meet the bar for manslaughter.

What's Interesting About The Case?
To me the most interesting thing about the case is how clearly it polarized along electoral lines. Issues of race and gun control produced a near-perfect division down left / right lines that will give this story currency for a long time and far out of proportion to the facts of it.

It's also interesting how you can be tried in the media.

Here is an essay I thought was interesting: Two Males, No Men
Whatever the protagonists may be guilty of they are surely innocent of being men. The six female jurors, not tasked to reach a verdict on the manhood of the central players, nevertheless know the truth of this more than other trial observers. The Venusians know the Martians better than they know themselves. And vice versa — what do they know of x chromosomes who only x chromosomes know?
What's Next?
Apparently Zimmerman wants to be a lawyer (I doubt he'll make it) and has a case against NBC (which he should win for their 'mistakenly edited' tape of him on 9/11). There will be real grief and attempts to politicize the case for some time. We haven't heard the last of it but I think--I hope--we are approaching some kind of closure. 

I do not think that the verdict declares, as some have said, open season on black men: no human being would want to go through what Zimmerman has gone through. On the other hand, it is still legal to pursue someone, confront them, and, if you are armed, shoot them if you are losing the fight you provoked. I think that needs to change.


  1. Manslaughter always seemed a better charge to me. I mean, Zimmerman’s a piece of work and his dumb-fuckery killed a kid. He deserves to do time. But Murder-1 never made any sense.

    Oh, and Key West *seceded*, about which I’m not sure if they *succeeded*.

    1. Thanks for the edit: Key West was only marginally successful. They wanted Murder-2 but even that was a stretch, it seems. Murder-1 was what portions of the Internet wanted.

  2. So it's not reasonable to expect a young black guy to respond rationally to a verbal challenge, and GZ should have expected TM to flip out and pound his head into the sidewalk? Isn't that a little racist?

  3. On the other hand, it is still legal to pursue someone, confront them, and, if you are armed, shoot them if you are losing the fight you provoked. I think that needs to change.

    This is absurd. A verbal challenge does not warrant a response of force, even a verbal threat of violence doesn't meet that requirement (in NC, anyway, I would presume FL law is similar)(unless other conditions are met, etc).

    A person does not have to be armed to present a lethal threat. Plenty of people have been punched or strangled to death. How many more injuries should GZ have sustained before doing something?

    Martin had every opportunity to go home safe and sound, he left the initial confrontation. He chose to come back and fight instead.

    1. You quoted me on this comment so I have some idea of what you're talking about.

      I think that going out of your way looking for trouble imbues the person doing the looking with more responsibility for the outcome.

    2. Asking someone who they are and what they are doing, while being in your own neighborhood, is looking for trouble now?

    3. Looking for trouble is looking for trouble--and has been for quite some time. Do we have a specific incident in mind here? Like, one where we could both objectively agree on exactly what happened?

    4. I'm just trying to understand how Zimmerman provoked Martin into beating his head against the pavement, and how Zimmerman could have expected that to happen -- the definition of "looking for trouble".

      Following someone should not provoke a violent response. Verbally challenging someone (though I'm unclear if there were words exchanged) should not provoke a violent response. A person should reply to "Who are you and where are you going?" with either "I'm Trayvon and I live with my girlfriend's dad over there," or "Go fuck yourself,", not a beatdown. Or are the expectations for black youth lower?

    5. In trying to understand Martin's reaction we have to first understand exactly what happened, right? I see three basic categories:

      1. GZ approached TM in a totally laid back and cool fashion and asked him what he was doing in the neighborhood and TM attacked him.

      This is the likely case for a grown-up with a history of making good life choices. A man with no anger issues (certainly never hitting a cop or a woman). A person who is NOT riled up or angry. This is NOT a man who wants to be a hero.

      I will call this person, for no apparent reason, "Your George Zimmerman"

      2. In the second category GZ approaches in a frightening and hostile manner (after having 'stalked' or even *stalked* TM for some time). In this scenario he is angry--he is leaving his vehicle because staying in the vehicle doesn't give him any closure to the confrontation he wants. It doesn't let him be the hero. He *knows* the cops are on their way but it's *not enough*--he has to stop the burglar IN THE ACT.

      In this case he approaches TM as a threat and TM feels threatened. Perhaps GZ postures? Perhaps he simply closes distance rapidly? In this scenario we have someone who is clearly angry--and we know from past history potentially violent--approaching someone else with intent to accost--in this scenario? Physically.

      In this case, I think our GZ is, in fact, looking for trouble.

      I will call this person, for no apparent reason, "My George Zimmerman."

      3. In the third category we have a George Zimmerman who exits the vehicle with murder on his mind. He looks for a scenario where his legal-eagle training will permit him a clean kill. TM gets the jump on him but it's not enough.

      This is an imaginary person made up by people on the Internet who have heard very little about the case.

      I will call this--again, with nomenclature chosen ENTIRELY at random--"That guy whose article I linked to's George Zimmerman."

      This is the spectrum I see--the closer the reality--as I perceive it--falls towards 3 the more culpable the person is. When he hits 2, though, I think that GZ bears more of the blame for his actions.

    6. You presented three different categories of "Zimmerman" in your statement, Marco. The issue is, you can't prove any one of them over the other. So, how are you going to convict someone of being one of those theoretical people and put them in prison for it? Thankfully in America, we do not have to prove our innocence. It is up to the prosecution to prove our guilt and there is absolutely no evidence to suggest that the Zimmerman profiled in your first example isn't accurate.

      I also wanted to point out an inaccuracy in your original blog. He didn't get out of his vehicle after the police dispatcher told him they didn't need him to follow the person. He was already out of his vehicle. That is a very significant difference from what you described.

      Zimmerman's statement said that after the dispatcher told him they didn't need him to follow the person, which is a standard disclosure statement from a dispatcher on all calls, he stopped following him and started heading back to his vehicle. On his way back to the vehicle he was going to verify which street he was on so he could tell the dispatcher. Zimmerman claims that he was confronted and then assaulted by Treyvon after he was ON HIS WAY BACK (not yelling, just highlighting).

      Could Zimmerman be lying? Sure, but if it is there is no evidence that proves it was a lie. So an honorable person would have to assume it isn't a lie since we aren't supposed to presume people guilty in this country.

      There is a video on youtube from a guy named Stefan Molyneux that paints a pretty good picture of what Zimmerman claims happened that night. I don't know if this information is accurate but I have read the same story in more than one place, but take it for what it is worth.

      I started the video at 10:40 but feel free to start from the beginning if you want to. The first 10 minutes is back story about Treyvon and Zimmerman. It isn't important for the point I am making. I don't think you need to watch the entire video but from 10:40 to about the 23 minute mark it is pretty interesting.

    7. I think that's a fair and reasonable range of possible events, but, and this is where we will probably part, functionally and legally, #1 and #2 are completely the same.

      Unless Zimmerman was making a direct threat, was displaying the ability and willingness to act upon it, and was preventing his escape, then any act of violence by Martin was uncalled for. Even if Zimmerman had gotten up in Martin's face and shoved him (soft hands is at the very bottom of the continuum of force), that would not legally sustain a justification to bash his head against the pavement, which is as much lethal force as heaving a brick at his head. Mean or racist feelings don't matter to the law (although that's a curious thing for a Hispanic Obama voter who tutored black kids in his spare time), nor do insults or verbal threats without also displaying the ability to act on them.

      Maybe Zimmerman was a wannabee cop (but I don't see how that's a bad thing compared to Martin the wannabee thug), maybe he hated black people, and maybe he had delusions of seeing his name in lights after capturing a bad guy. Doesn't matter. All that matters is who initiated the threat of lethal force.

    8. zach26276: That's a good point--and well stated--GZ was out of his truck at the time. I got that wrong and I do think that it makes him *more* credible than if he'd had the conversation with 9/11 dispatch earlier on in the timeline.

      I looked for a timeline and found these two links:

      And this one with time-stamps:

      That said, the question is: does it change things *enough* for me? The answer is: "Not enough for me to reverse my decision--but it does move my bar closer to the juries' decision than it was previously."

      A couple of things to better explain:
      1. You are misunderstanding how the burden of proof and presumed-innocence works. There are a vast number of cases where the defendant's stance is something like: "I was sitting in my car, yo, and this guy ran by and threw a purse in my lap. I didn't take it."

      There's usually no *evidence* to disprove that story (the defendant is found with the purse and it's 'his word against the 'other guy's'--who mysteriously can't be found)--and the story is physically *possible*--but no one is required to believe it. Not even the judge or jury--and even without evidence to the contrary.

      Exactly where GZ went in the 3 min 49 sec after the call is left to only his version of events.

      2. GZ *did* decide to exit the vehicle after being seen by Martin (according to these timelines). Whether or not he was looking for a confrontation or a street sign we can't know for sure. The map puts him as following Martin quite some distance (down the cut-through from Twin Trees to Retreat View Circle): If he was purely looking for a street sign--or on his way back, he covered a fairly large distance doing so.

      Would I have decided things the way the jury did had I been on it? Maybe. I'm not going to second guess them--they were exposed to far more of this than I have been (or want to be).

      But do I believe that GZ is the saint his defense makes himself out to be? No--I don't quite believe that either.

    9. PDB: I will leave the question as to whether or not #1 and #2 are legally the same to the lawyers (especially the various conservative legal pundits who thought manslaughter was possible and murder 2 was ridiculous).

      Whether they are morally the same, I'll leave to the individual.

      Before my final point, though, I want to note something. You keep coming back to a particular theme in your responses here:

      "Isn't that a little racist?"
      "Or are the expectations for black youth lower?"
      "but I don't see how that's a bad thing compared to Martin the wannabee thug"

      Although I'll cop to generally having lower expectations of a 17 year old than an adult I don't think Martin comported himself well here. As I understand it he clearly came back to the situation when he should have just gone on home. I think he was looking for a fight. I think it probable he hit GZ first.

      I doubt he truly would have literally killed GZ (the same way I do not thing GZ was looking to murder TM)--but I'm not sure and I don't think that matter (I do think GZ probably did fear for his life during the beat down).

      I'm no fan of Martin's and I don't think he's "better" than a wannabe cop--he just doesn't happen to be the one on trial here.

      However ...

      According to GZ's defense (as I understand it) he was reaching for his phone in his jacket pocket when Martin hit him. While I'm not trying to exonerate Martin--who as I've said I think was spoiling for a fight as well--I think you should ask yourself what *you* would do if some angry stranger who had been following you around looked like he was suddenly about to clear an object from jacket pocket during the encounter.

      Keep in mind I've read your blog.

  4. I will leave the question as to whether or not #1 and #2 are legally the same to the lawyers

    Hooooookay. You seemed sure about the law when you wrote this.

    Although I'll cop to generally having lower expectations of a 17 year old than an adult

    This is absurd. A 17 year old is old enough to enlist, and old enough to be tried as an adult, if Martin had succeeded in killing or severely injuring Zimmerman and had been arrested. A 17 year old is damn well old enough to know that responding to a perceived slight or lack of respect with lethal force is wrong and illegal.

    But I also think a 16 year old that had spent 10 years in the public school system shouldn't be functionally illiterate. I guess I'm just racist that way.

    I think you should ask yourself what *you* would do if some angry stranger who had been following you around looked like he was suddenly about to clear an object from jacket pocket during the encounter.

    I would do my damnedest to be somewhere else, especially if I was a fit 17 year old who had successfully eluded the old fat guy once before. An unarmed person who closes the distance, and engages in fisticuffs with, a person he believes has a gun, is a very special kind of stupid. I don't think Martin was that dumb (in that way) and I don't think that was his motivation.