Insufficient Justice

It’s a common mistake, often made by people who have some sort of romantic notion about the courts, and particularly the Supreme Court. Imagine a death row appeal, where the Supreme Court finds that the fellow about to be executed is entirely innocent – the evidence was insufficient or his court-appointed attorney was an incompetent fool – but there was no judicial error in any of the proceedings, where all the rules were followed. Should the court rule on this fellow’s obvious innocence, and spare his life, or rule on the law, which was scrupulously followed? Justice Scalia has held that mere innocence should never be a factor in these matters – “Mere factual innocence is no reason not to carry out a death sentence properly reached.”

The innocent man must die. That may seem cold and cruel, and unjust, but the Supreme Court rules on law, not on justice – and one must follow the law. Get over it. The law is not about justice – it never was – and it’s certainly not about politics. People need to be reminded of that. There was that famous admonition from the bench from Oliver Wendell Holmes, Jr. – “This is a court of law, young man, not a court of justice.”

Yes, the Chief Justice at the time was being bitterly ironic, but that’s the way it is. Holmes didn’t like it much, but one goes to court only for the ruling one wants. That ruling may mean justice will be served, but it may not. The one may lead to the other, but they’re not necessarily related. If you seek justice, fine, go to court. It’s a good first step, but the most you can hope for is a ruling that leads to justice, which is always elsewhere.

This was the only thing that happened this weekend:

George Zimmerman, the neighborhood watch volunteer who fatally shot Trayvon Martin, an unarmed black teenager, igniting a national debate on racial profiling and civil rights, was found not guilty late Saturday night of second-degree murder. He was also acquitted of manslaughter, a lesser charge.

George Zimmerman was found not guilty of two very specific charges, but that does not mean he’s an innocent man. This has happened before. With O. J. Simpson years ago, the state couldn’t prove beyond a reasonable doubt that he murdered his ex-wife Nicole Brown Simpson and her friend Ronald Lyle Goldman, but that was followed by a wrongful death suit, where Simpson was found guilty. That cost Simpson many millions in damages, so there’s criminal law and there’s civil law. Each has its precise rules. Justice is another matter entirely. With George Zimmerman, it’s possible that there will be Civil Rights charges – see Federal Prosecutors Reviewing Zimmerman Case – and civil charges too, should the kid’s family choose to pursue that wrongful death thing. They might not. Zimmerman is not a football legend and movie star, with deep pockets. There’s no way there to put the hurt on him for what he did.

Obama, a lawyer, who taught constitutional law, did try to explain this to the American people:

The death of Trayvon Martin was a tragedy. Not just for his family, or for any one community, but for America. I know this case has elicited strong passions. And in the wake of the verdict, I know those passions may be running even higher. But we are a nation of laws, and a jury has spoken. I now ask every American to respect the call for calm reflection from two parents who lost their young son. And as we do, we should ask ourselves if we’re doing all we can to widen the circle of compassion and understanding in our own communities. We should ask ourselves if we’re doing all we can to stem the tide of gun violence that claims too many lives across this country on a daily basis. We should ask ourselves, as individuals and as a society, how we can prevent future tragedies like this. As citizens, that’s a job for all of us. That’s the way to honor Trayvon Martin.

In short, don’t confuse the law with justice. They’re two different things. Seek justice elsewhere, a statement that led to this – Republicans Freak Out and Claim Obama Is Using Zimmerman Verdict to Take Their Guns – which is what one would expect. The Republicans understood.

Liberals like Gary Younge didn’t understand:

Let it be noted that on this day, Saturday 13 July 2013, it was still deemed legal in the US to chase and then shoot dead an unarmed young black man on his way home from the store because you didn’t like the look of him.

The killing of 17-year-old Trayvon Martin last year was tragic. But in the age of Obama the acquittal of George Zimmerman offers at least that clarity. …

There is no doubt about who the aggressor was here. It appears that the only reason the two interacted at all, physically or otherwise, is that Zimmerman believed it was his civic duty to apprehend an innocent teenager who caused suspicion by his existence alone.

Appeals for calm in the wake of such a verdict raise the question of what calm there can possibly be in a place where such a verdict is possible. Parents of black boys are not likely to feel calm. Partners of black men are not likely to feel calm. Children with black fathers are not likely to feel calm. Those who now fear violent social disorder must ask themselves whose interests are served by a violent social order in which young black men can be thus slain and discarded.

The New York Times’ Adam Nagourney has more:

“Trayvon Benjamin Martin is dead because he and other black boys and men like him are seen not as a person but a problem,” the Rev. Dr. Raphael G. Warnock, the senior pastor at Ebenezer Baptist Church in Atlanta, told a congregation once led by the Rev. Dr. Martin Luther King Jr.

Dr. Warnock noted that the verdict came less than a month after the Supreme Court voted 5 to 4 to void a provision of the Voting Rights Act of 1965. “The last few weeks have been pivotal to the consciousness of black America,” he said in an interview after services. “Black men have been stigmatized.” …

As dusk fell in New York, a modest rally that had begun hours earlier in Union Square grew to a crowd of thousands that snaked through Midtown Manhattan toward Times Square in an unplanned parade. Onlookers used cellphones to snap pictures of the chanting protesters and their escort by dozens of police cars and scores of officers on foot. Hundreds of bystanders left the sidewalks to join the peaceful demonstration, which brought traffic to a standstill.

In Sanford, the Rev. Valarie J. Houston drew shouts of support and outrage at Allen Chapel AME as she denounced “the racism and the injustice that pollute the air in America.”

“Lord, I thank you for sending Trayvon to reveal the injustices, God, that live in Sanford,” she said.

There’s video at the link too. There was lots of this, with demonstrations everywhere:

In downtown Oakland, dozens of protesters filled the streets to denounce the verdict shortly after it was announced. Some of the protesters set fire to trash cans, broke the windows of businesses, and damaged police patrol cars. About 40 people in Atlanta, carrying sodas and Skittles to underscore the errand to a store that Mr. Martin was completing when he was shot, marched to Woodruff Park on Saturday night. In Washington, about 250 marchers protested the verdict late Saturday and early Sunday as police cruisers trailed them. A few hundred protesters gathered at a rally in downtown Chicago on Sunday, some wearing signs showing Mr. Martin wearing a hoodie.

There was a lot of misunderstanding about the law, but not from Libby Spenser:

Zimmerman was not found innocent. Neither was he exonerated of the crime. The fact that he killed an unarmed teenager with a gun was never in dispute. He was acquitted on the charge of murder. There’s a difference.

Neither can it be said that the court delivered justice for Trayvon. That would have required a guilty verdict, which just wasn’t going to happen under Florida laws. Our legal system is imperfect. The guilty often go free while the innocent are sometimes convicted. And yes, the outcomes are often based on class status and race. It’s not been unnoticed that a black woman in the same state, under the same laws, was given a 20 year sentence for merely shooting a gun into the air.

This is what happens when a “jury of peers” are the judges and the judge merely conducts the proceedings. It also happens when a single justice decides a case. It’s a myth they don’t bring their own prejudices into the courtroom. But it’s useful to remember at such times, when the anger at injustice boils the blood, that judges and juries are constrained by laws written by politicians. The system is imperfect because it is an invention of humans who are also imperfect beings.

That’s the real problem, and maybe there’s no hope:

Many will try to make sense of the outcome where none can be made. In the end all we can do is accept that sometimes the system really sucks and do our best to write better laws that deliver justice more perfectly. Probably an impossible task when politicians have the final say.

As for the instant case, the best summation I’ve seen is this: “The real danger of this acquittal is not riots in the streets. It’s more George Zimmermans.”

The Atlantic’s Andrew Cohen is on the same page:

To me, on its most basic level, the startling Zimmerman verdict – and the case and trial that preceded it – is above all a blunt reminder of the limitations of our justice system. Criminal trials are not searches for the truth, the whole truth, and nothing but the truth. They never have been. Our rules of evidence and the Bill of Rights preclude it. Our trials are instead tests of only that limited evidence a judge declares fit to be shared with jurors, who in turn are then admonished daily, hourly even, not to look beyond the corners of what they’ve seen or heard in court.

Trials like the one we’ve all just witnessed in Florida can therefore never fully answer the larger societal questions they pose. They can never act as moral surrogates to resolve the national debates they trigger. In the end, they teach only what each of us as students are predisposed to learn. They provide no closure, not to the families or anyone else, even as they represent the close of one phase of the rest of the lives of the people involved. They are tiny slivers of the truth of the matter, the perspective as narrow as if you were staring at the horizon with blinders on, capable only of seeing what was not intentionally blocked from view.

This case was one where the judge allowed no one to discuss the real issue:

Of course the deadly meeting last year between Trayvon Martin and George Zimmerman had at its core a racial element. Of course the tragic result reminds us that the nation, in ways too many of our leaders refuse to acknowledge, is still riven by race. The story of Martin and Zimmerman is the story of crime and punishment in America, and of racial disparities in capital sentencing, and in marijuana prosecutions, and in countless other things. But it wasn’t Judge Debra Nelson’s job to conduct a seminar on race relations in 2013. It wasn’t her job to help America bridge its racial divide. It was her job to give Zimmerman a fair trial. And she did.

So the murder trial of George Zimmerman did not allow jurors to deliberate over the fairness of Florida’s outlandishly broad self-defense laws. It did not allow them debate the virtues of the state’s liberal gun laws or its evident tolerance for vigilantes (which we now politely call “neighborhood watch”). It did not permit them to delve into the racial profiling that Zimmerman may have engaged in or into the misconduct and mischief that Martin may have engaged in long before he took that fatal trip to the store for candy. These factors, these elements, part of the more complete picture of this tragedy, were off-limits to the ultimate decision-makers.

None of those things were on trial, only George Zimmerman was, on two specific counts, which shows something else:

What the verdict says, to the astonishment of tens of millions of us, is that you can go looking for trouble in Florida, with a gun and a great deal of racial bias, and you can find that trouble, and you can act upon that trouble in a way that leaves a young man dead, and none of it guarantees that you will be convicted of a crime. But this curious result says as much about Florida’s judicial and legislative sensibilities as it does about Zimmerman’s conduct that night. This verdict would not have occurred in every state. It might not even have occurred in any other state. But it occurred here, a tragic confluence that leaves a young man’s untimely death unrequited under state law. Don’t like it? Lobby to change Florida’s laws.

It’s a matter of knowing where the problem lies:

If we understand and accept these legal limitations – and perhaps only if we do – the result here makes sense. Purely as a matter of law, you could say, it makes perfect sense. Florida’s material, admissible, relevant proof against Zimmerman was not strong enough to overcome the burden of proof beyond a reasonable doubt. The eye-witnesses (and ear-witnesses) did not present a uniformly compelling case against the defendant. The police witnesses, normally chalk for prosecutors, did not help as much as they typically do. Nor was there compelling physical evidence establishing that Zimmerman had murderous intent and was not acting in self-defense.

The case was “not about standing your ground; it was about staying in your car,” the prosecutor cogently said during closing argument. But in the end, under state law favorable to men like the defendant – that is, favorable to zealots willing to take the law into their own hands – Zimmerman’s series of deplorable choices that night did not amount to murderous intent or even the much more timid manslaughter. The defense here wisely understood that and was able consistently, methodically, to remind jurors that prosecutors had not adequately explained (or proved) how exactly the altercation started and how precisely it progressed.

Without a confession, without video proof, without a definitive eyewitness, without compelling scientific evidence, prosecutors needed to sell jurors cold on the idea of Zimmerman as the hunter and Martin as the hunted. But when the fated pair came together that night, in those fleeting moments before the fatal shot, the distinctions between predator and prey became jumbled. And prosecutors were never able to make it clear enough again to meet their burden of proof. That’s the story of this trial. That explains this result. That’s why some will believe to their own dying day that George Zimmerman has just gotten away with murder.

He did get away with murder, or he didn’t. Don’t look to this one jury for the answer, and at the American Thinker, Rick Moran adds this:

One of the great strengths of our federal system is that individual states are allowed to define things like self-defense according to local community standards. In a continental country, a one size fits all legal code couldn’t possibly work. People, to state the obvious, are different. Your average Floridian has a far different opinion about guns in society than your average New Yorker. Even issues like personal safety might vary from state to state, region to region.

I’m pretty sure if the Zimmerman-Martin incident had occurred in Illinois, a good prosecutor would have convicted George Zimmerman of manslaughter. My understanding is that self-defense in Illinois is predicated on the level of force necessary to protect oneself. Since Trayvon Martin did not have a gun, the prosecutor’s argument would be that Zimmerman used an unacceptable level of force to protect himself. And an Illinois jury could easily have seen it that way.

Similarly, I imagine in Texas, or Louisiana, or some other Southern state, Zimmerman would have had a better chance of being acquitted.

It’s a matter of where you live:

Cohen’s rather dramatic interpretation of the facts as we know them – that Zimmerman went “looking for trouble” and that neighborhood watch participants are “vigilantes” – is more evidence of a regional bias at work in the author’s writing. Perhaps citizens in New York are more comfortable waiting for police to show up and save their property – or their lives – than in empowering their neighbors to proactively prevent crime. Given the draconian restrictions on guns in New York, that attitude would seem to work for local residents and is an acceptable, if incomprehensible to many, opinion to hold.

The blogger BooMan isn’t buying that:

There is still something missing from this argument. Zimmerman made a mistake. As the prosecution argued, he made some bad assumptions. And those bad assumptions led to the death of 17 year-old boy. There ought to be some provision under the law that allows Zimmerman to be held accountable for that.

I mean, we might disagree about whether it was reasonable to call the non-emergency number in the first place. We might disagree about whether Zimmerman was acting like a vigilante or just trying to protect his neighborhood. But we should be able to agree that he was wrong to suspect Trayvon Martin and that he made a mistake when he decided to pursue him on foot. He should have been able to identify himself as the captain of the Neighborhood Watch team and have a civil discussion about Martin’s right to be there.

The problem isn’t so much that Zimmerman isn’t doing 25 or 30 years in prison. The problem is that he isn’t being punished at all. All his mistakes are forgiven. An innocent life was lost, and no one will be held accountable. And that should be unacceptable in every community.

Yeah, but the law is the law, except at Talking Points Memo there’s this contribution to the discussion:

I’m a criminal defense lawyer in Wisconsin, but I’ll tell you my reaction to the Zimmerman verdict today. I’ve had friends in Florida asking for my take. I haven’t watched the trial very closely (it seems like an ordinary criminal case to me in many respects). But I was astounded that the defense would put on a “self-defense” argument without the defendant testifying. In most civilized jurisdictions, the burden is on the defense to prove, at least more likely than not, that the law breaking was done for reasons of self-defense. I couldn’t figure out how they could do this without the defendant’s testimony.

I got curious and read the jury instructions Friday night and, I was wrong. In Florida, if self-defense is even suggested, it’s the states obligation to prove its absence beyond a reasonable doubt (!). That’s crazy. But ‘not guilty’ was certainly a reasonable result in this case. As I told in friend in Tampa today though, if you’re ever in a heated argument with anyone, and you’re pretty sure there aren’t any witnesses, it’s always best to kill the other person. They can’t testify, you don’t have to testify, no one else has any idea what happened; how can the state ever prove beyond a doubt it wasn’t self-defense?

Holy crap! What kind of system is that?

Lots of folks ask that question about the law. In this case, the judge did the all the right things, and the jury did the right thing – but the law is what it is. Sometimes mere factual innocence doesn’t matter. Sometimes mere factual guilt doesn’t matter. This is a court of law, young man, not a court of justice! Look for justice elsewhere. It is out there.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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3 Responses to Insufficient Justice

  1. Rick says:

    A few observations, which don’t really cover all my feelings about this:

    First of all, if you were able to watch the Saturday night post-verdict celebratory crowing of Don West, the defense attorney who seemed to enjoy sparring with the Judge, you saw a man who was so busy being proud of himself for successfully doing the job he had to do under the laws of Florida that he failed to see the bigger problem, the one that had much of the rest of us glued to our sets these past few weeks. In fact, I have no doubt that he doesn’t even realize there is a bigger problem — that being that, if someone does something wrong and it results in the death of somebody else, and the killer isn’t punished under the law, this means there’s a glitch in the legal system that needs to be fixed.

    I wish a reporter that night had asked him this: “If I tracked you in such a way that made you feel threatened, and you turned to fight me, and so I took out a gun and shot you dead, shouldn’t I be punished for this under the law?”

    Along those same lines, here’s Andrew Cohen (who otherwise nails this issue fairly well):

    “Criminal trials are not searches for the truth, the whole truth, and nothing but the truth. They never have been.”

    Yeah, but just like that silly claim that “it’s not about justice”, this tends to way overstate the case and leads to misunderstandings.

    Laws and courts, in fact, are designed to get at both truth and justice. That’s their purpose! It’s just that they can’t give an absolute guarantee of either. If there is a God that sees all this, maybe He could settle all these matters, but since He seems to be pretty much ignoring our mundane problems, He’s pretty much left it to us to sort out. And it turns out, it’s not as easy as it looks, so the best we can come up with is an imperfect system.

    If we didn’t care about justice and truth, we’d have no laws at all, and therefore, no trials to see if anyone broke them. But we do care about justice and truth, and that’s why we’re busy watching all these trials on TV.

    Another point: Here’s Gary Younge (who I gather is black):

    “Let it be noted that on this day, Saturday 13 July 2013, it was still deemed legal in the US to chase and then shoot dead an unarmed young black man on his way home from the store because you didn’t like the look of him.”

    That’s largely right, except for the “US” part (we can’t be sure, but it may be only legal in Florida), and also except that the “young black man” part understates the problem. In fact, it’s worse than that. It was deemed legal to chase and shoot anybody, of any age or gender or race.

    If Trayvon Martin had been white, would that have made a difference to Younge? If so, then the implication is that we have a right to be concerned with the treatment of people of our own race, disregarding others. But if that’s the case, why am I supposed to care about what happened to Trayvon Martin, since he wasn’t of my race?

    What we should find important here is that, even with everybody (purportedly) leaving race out of the trial, Zimmerman was still found not guilty! That’s how I know that it may be okay in Florida to stalk strangers, no matter what color they are, and to shoot them dead.

    “Oh, sure,” you could say, “but everyone still knew Trayvon was black! So you didn’t really leave race out of it at all.” But this presumes that the six jury members let Zimmerman off because they’re racists, and I’m not willing to go that far. In fact, try as they might, the prosecution couldn’t make a good argument of law in the trial — I’m guessing it’s because the law just isn’t there in Florida to punish some guy who stalks somebody and ends up shooting that somebody to death.

    Was Zimmerman a racist? Trayvon’s father said he didn’t know, and in fact none of us know for sure. Yes, Zimmerman’s previous calls to police seemed to usually involve “black” suspects, but with all those “asshole” comments he made, he apparently never did use the “nigger” word or anything like it. And of course, he wasn’t tried on a charge of being a racist, since there isn’t a law against being a racist.

    And yes, there is still much injustice against blacks in this country — all the recent documented attempts to tamp down minority voting don’t come close to covering that issue — but anyone who claims that there has been no racial progress in this country in our lifetimes is either lying or just not very observant.

    And whatever progress we’ve made has been toward treating everyone, no matter what their race, equally under the law. So to argue that we should care only about black people being mistreated harkens back to olden times, when good old boys would argue that we should care only about victims who are white. The problem back then was not that race discrimination only went one way, it’s that it existed at all.

    Whether or not Zimmerman would have done what he did if Trayvon was white is an open question, but I don’t think there’s any question that the verdict would have been the same. This is not a problem of the verdict, which, given the laws of Florida, I think was probably right.

    The real problem is with the laws of Florida, which are apparently sort of stupid. For one thing, people are allowed to carry guns around. Had it not been legal for citizens to carry concealed weapons, George Zimmerman might have been likely to keep his distance and let the police do what they needed to do, and an innocent teenager would be alive today, and Zimmerman would not be a killer.

    Rick Moran (who himself otherwise seems to get it mostly right), was here referencing Andrew Cohen:

    “Cohen’s rather dramatic interpretation of the facts as we know them – that Zimmerman went ‘looking for trouble’ and that neighborhood watch participants are ‘vigilantes’ – is more evidence of a regional bias at work in the author’s writing. Perhaps citizens in New York are more comfortable waiting for police to show up and save their property – or their lives – than in empowering their neighbors to proactively prevent crime.”

    Yeah, and given the outcome — an innocent person gunned down for no good reason by someone who doesn’t get punished for it — I would say this vindicates the superiority of the New York “regional bias” over that of their brethren in the South. After all, this innocent victim would not be dead if it had happened in New York, a place where they’ve designed a “criminal justice” system that seems to deliver a better approximation of actual justice.


  2. Bill Nichols says:

    This is more a fan letter than a reply. I read “Just Above Sunset” with admiration for Alan’s ability to consider a wide range of commentary on difficult issues and pull things together in ways that make good sense. This week the issues seem particularly difficult and diverse, and “Just Above Sunset” offers, it seems to me, unusually helpful insights.

  3. Bill Nichols says:

    Well, I really do have a reply, but it too is actually a fan letter: Rick’s response to “Insufficent Justice” reminds me that he too generally makes a lot of sense. The both make me feel good about the Sixties.

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