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A Tale of Two Trials

Zimmerman acquitted by a jury—convicted by the media.

Jul 29, 2013, Vol. 18, No. 43 • By CHARLOTTE ALLEN
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Zimmerman was racially profiling Martin. The media picked up this allegation from the prosecution’s affidavit of probable cause filed on April 12, 2012. “It cannot reasonably be disputed that the incident that left Mr. Martin dead began with ugly racial profiling,” NBC News legal analyst Lisa Bloom wrote for the New York Times on July 15. NBC had creatively edited the tape of Zimmerman’s 911 call to make him look fixated on race, leaving out the part where the dispatcher asked for a description. Judge Debra Nelson, who presided over the trial and who was not known for her sympathy for the defense, pointedly barred the use of the term “racial profiling” during opening statements or at any other time. Racial profiling would have been a tough charge in any event to sustain against Zimmerman, who was half-Hispanic, with a Peruvian mother and a black great-grandfather. (The New York Times’s response to the revelation that Zimmerman wasn’t quite the Aryan that the press had initially characterized him as was to dub Zimmerman a “white Hispanic.” Campos of Salon called him “a more or less white man.”)

Zimmerman disobeyed a police dispatcher’s order to stay inside his car and instead embarked on a vigilante quest for Martin. That’s what nearly every newspaper reporter and TV network in America said during the year or so leading up to the trial. “Wannabe cop” was a favorite epithet. As the recording of Zimmerman’s conversation with the dispatcher, Sean Noffke (together with Noffke’s testimony at trial), revealed, Noffke had merely said, “We don’t need you to do that,” when Zimmerman was already out of his car. And judging from the rhythm of Zimmerman’s breathing on the recording, he stopped pursuing Martin a mere 13 seconds after Noffke issued his advice.

Zimmerman provoked the conflict with Martin by confronting him about what he was doing on the premises, effectively nullifying his claim of self-defense. Andrew Reinbach, a blogger for the Huffington Post, wrote on July 16: “It can certainly be argued .  .  . that Mr. Zimmerman provoked the attack that prompted him to use deadly force against an unarmed teenager who bested him in a fistfight.” (The “fistfight,” according to Zimmerman’s statements to the police, corroborated by the testimony of witnesses at the trial and gunpowder evidence on Martin’s shirt, consisted of Martin’s sucker-punching Zimmerman to the ground and pounding his head into a concrete sidewalk while on top of him.) That Zimmerman started it was one of the prosecution’s theories, but Judge Nelson, rejecting the idea that Zimmerman’s questioning of Martin could amount to provocation, refused to allow a jury instruction on provocation—so it was never an issue in the courtroom trial.

Florida’s generous “stand your ground” law allowed Zimmerman to prevail on a claim of self-defense that would not be permitted in other states. Florida—like the majority of other U.S jurisdictions—does not require someone to retreat if reasonably possible rather than use deadly force against a real or reasonably perceived aggressor who threatens death or grave bodily injury. Florida also—unlike the majority of other U.S. jurisdictions—allows people to use deadly force merely to defend property under some circumstances, such as a home or car invasion. But as Stephen P. Garvey, a professor of criminal law at Cornell University, explained to me in a phone interview, the “stand your ground” doctrine under any interpretation simply wasn’t an issue in the trial, because Zimmerman didn’t draw his gun until it was impossible for him to retreat. As Garvey says, “This is a very bad case on which to base your thoughts about important issues such as racial profiling or the duty to retreat.”

The problem was that those issues, plus others, such as gun control, which Obama quickly interjected into the case as one of his pet causes in a July 14 statement, weren’t the ones put before the jury. The jurors had to deliberate whether the prosecution could prove beyond a reasonable doubt that George Zimmerman hadn’t acted in self-defense. The bloggers, the tweeters, the columnists, the politicians, and even the supposedly objective news reporters weren’t nearly as interested in that trial as in the parallel trial, which is still going on. In this latter trial, white racism is the defendant (Zimmerman is just a symbol), black victimization is the crime, and the verdict is always guilty.

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