Lessons From The Zimmerman Case

| The Ayoob Files |
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Situation:

Artful manipulation by the mainstream press turns a routine shooting into a media lynching, complete with show trial.

Lesson:

There are many — tactical, legal and even social.

On the night of Feb. 26, 2012 in Sanford, Fla., a single 115-gr. 9mm Sellier & Bellot jacketed hollowpoint bullet exploded from the muzzle of George Zimmerman’s Kel-Tec PF-9 pistol. It was a shot that would divide a nation and begin a chain of events to captivate our country like no murder trial since the one involving O.J. Simpson. It ended the life of a 17 year old who was led to the bullet by a downward-spiraling lifestyle of drugs, violence and machismo.

The evidence, including cell phone records and Facebook messages of the deceased Trayvon Martin, showed he called himself a “gangsta” and nicknamed himself “No Limit Nigga.” He was negotiating to illegally buy a handgun, and was apparently involved in marijuana trafficking. These breadcrumbs also revealed his interest in street fighting, and he was angry an opponent beat him using a “martial arts mount” — making him want a rematch. Also, he was disappointed one person he punched out didn’t bleed enough.

Trayvon had been expelled from high school and was caught with drugs and stolen jewelry. These acts didn’t go through the criminal justice system because school authorities wanted to keep their crime statistics down. He was so out of control his mother kicked him out of her home in Miami Gardens, and sent him to live with his father, who was seeing a woman in Sanford. Hence, why young Mr. Martin was there on the fatal night. Evidence revealed he had a penchant for “lean” — a drug cocktail made with codeine or other cough syrup, and candy and sweet beverages such as the Skittles and Arizona Fruit Juice Cocktail Watermelon drink he was carrying at the time of his death.

None of those facts would be seen by the jury in the Zimmerman case for the simple reason he didn’t know about them when he shot Trayvon, and therefore weren’t foundational to the act for which he was being judged. Trayvon’s grieving parents hired plaintiff’s lawyers Natalie Jackson and Benjamin Crump, who in turn brought in public relations expert Ryan Julison, who brought their theory of the case to TV talk show hosts and other powerhouse media personalities. Almost overnight, the plaintiff’s theory had been presented to the entire country as if it was fact. The evidence showed otherwise.

The Prosecution Meme

The plaintiff/prosecution theory was this: Trayvon Martin was a harmless child (1) walking home from the store with Skittles and iced tea (2). He was then profiled for being African-American and for wearing a hoodie in the rain (3) by a white racist vigilante (4) named George Zimmerman, a wannabe cop (5) and self-appointed captain of the Neighborhood Watch (6). Zimmerman called the police (7), who ordered him not to follow Martin, but Zimmerman got out of his car (8) and pursued him anyway — violating a lawful police command (9). He then confronted Trayvon Martin (10). There was an altercation (11) during which Zimmerman sustained some minor injuries (12), before he shot the unarmed youth (13).

The issues were parsed more finely in the trial, which began with the opening of jury selection on June 10, 2013, and ended with a complete acquittal on the following July 13. Those 13 issues cited above were the foundation of the State’s charge of murder in the second degree — a foundation needing to be destroyed, brick after hollow brick, and replaced with facts and reality. The defense team, led by attorney Mark O’Mara and his co-counsel, Don West, went to work with this angle. Let’s look at their success, and some teachable moments for law-abiding armed citizens.

Issue By Issue

Part 1 and 2 above have already been discussed. Though legally a minor, Trayvon Martin was old enough to enlist in the Marine Corps at 17. He was at least 5’11” tall, according to the autopsy. But according to reporters, his mom described him as standing between 6’2″ and 6’3″.

In a family portrait, Trayvon is the tallest person in the picture, while in the security camera inside the 7-Eleven where he bought the Skittles and watermelon drink, appears to tower over the clerk who is on record as being 5’10”.

Profiling? Scratch this third point. Zimmerman explained, on the night in question, Martin’s aberrant behavior — loitering in the pouring rain, walking aimlessly and looking in windows — made him suspect a possible burglar casing a future job. Though one TV network edited the dispatch tape to make it sound otherwise, Zimmerman didn’t even mention Martin was black until the dispatcher asked for a description.

What about Zimmerman as white racist? Au contraire. Zimmerman was one-eighth black himself, on his mother’s side. Just 60 years ago, he wouldn’t have been served in a white restaurant in Sanford. With the Klan riding high, the sheet-heads would have called him an “octoroon.” He was first deemed “white” by the press, but when they learned he was listed on official documents as Hispanic (his mother is from Peru), the media coined the term “White Hispanic.” One fellow claimed to have searched the computer archives of the entire history of a major newspaper, and learned the paper had never printed the term “White Hispanic” until this case.

A squad of FBI agents assigned to thoroughly investigate Zimmerman for evidence to make this a hate crime, determined in the spring of 2012 there was nothing there. Zimmerman had many black friends, had mentored African-American children and had publicly taken up the cause of a black man who had been beaten by a white — and Zimmerman thought the police were covering for him. This pushes the fourth issue off the table.

The jury was able to see there was no vigilante element to this incident. Vigilantes dispense their own justice; they don’t call the cops as Zimmerman did. Besides, Zimmerman knew those cops could appear at any moment — and they did, about a minute after the fatal shot. While Zimmerman had taken relevant classes in the past and considered a career in criminal justice, the Sanford Police Department’s Neighborhood Watch coordinator had offered him a uniform and a patrol car, and he turned both down.

He had also been elected to lead the Neighborhood Watch by his neighbors, and was not at all self-appointed. In any case, at the time of the shooting, he was not on any kind of patrol, but merely driving to Target to buy groceries. He was wearing the pistol he was licensed to carry, just as any of us reading this magazine might likely do. Cross off allegations 5 and 6, above.
“Pursuit”?

Zimmerman did call the cops (actually, the non-emergency dispatch number), hardly the act of a man filled with malice or intending a crime (item 7). However, he never violated a lawful order because no lawful order was given. The dispatcher testified he had no authority to give orders, and it was policy not to. The dispatcher asked Zimmerman what direction the suspicious person had gone.

After, Zimmerman can be heard exiting his SUV on the dispatch tape. He becomes short of breath and there’s wind in the background. The dispatcher figures out what’s happening and asks if Zimmerman is following the man. Zimmerman replies, “Yeah.” The dispatcher says, “We don’t need you to do that.” Zimmerman says, “Okay,” and the wind quickly stops and normal breathing returns. This is solid evidence he stopped following at this point, and is consistent with his statement to police. He then began to return to his car … and was ambushed en route.

Those who sought Zimmerman’s conviction said he “pursued” Trayvon Martin. No, he merely followed him briefly to see where Martin was going, and then stopped and turned back. “Pursuit” implies intent to capture: Police pursuit is intended to end in arrest, pursuit of game implies intent to kill and eat the quarry, and we’re allowed the pursuit of happiness so we can possess happiness. Whether or not it’s smart or tactically sound for the private citizen to follow someone who might be a burglar to report a location to police, it is in no way against the law.

Why did he do it at all? Consider while the dispatcher has no authority to give orders, a dispatcher is the one who answers and is therefore a voice of authority. This voice asks you for information. You have been through Neighborhood Watch training, which emphasizes you act as eyes and ears. Would you not feel a need to gather the information to answer this question? This is why points 7 through 9 carried no weight in court.

The Confrontation

Even among gun owners and the concealed carry community, Zimmerman received heavy criticism for confronting Martin. However, the overwhelming majority of the evidence indicates it was Martin who confronted Zimmerman. Rachel Jeantel, the female friend Trayvon was talking to on the phone in the moments before his death, said he told her he was almost to the place where he was staying.

Trayvon was a long-legged athlete, a 17-year-old football player. The 5’7″ Zimmerman, 11 years older with a long-standing weight problem, wouldn’t have been able to chase him down — especially with Trayvon having a head start to get out of view. Therefore, the location where the deadly encountered occurred meant Trayvon Martin would have doubled back.

In the brief exchange of words before it went physical, both Ms. Jeantel and the defendant said Trayvon uttered the first challenging words. Put it all together, and the instigator of the confrontation has to be Martin, not Zimmerman. The only injuries on Martin — except for the single gunshot wound — were on his knuckles; Zimmerman’s nose was smashed and swollen in the pictures taken at the scene, and the back of his head lacerated and bloody, consistent with having been banged on the sidewalk as Zimmerman described. Ms. Jeantel testified before the phone went dead, she heard Trayvon shout “get off.” In street slang, “get off” can also mean a command to fight, short for “get off the fence,” and would be consistent with the evidence of Trayvon Martin’s fascination with, and participation in, street fight culture.

Being watched or followed with obvious suspicion, solely because of your race, is a common experience among African-Americans — and enough to make anyone legitimately angry. Ms. Jeantel testified Trayvon told her he was being followed by a “creepy-ass cracka,” and young Martin also referred to Zimmerman as a “nigga.” She later said on “Piers Morgan Live” in her culture, “cracka” was no longer a derogatory word for white people, but a term to identify someone like a security guard. I have yet to hear this definition anywhere else.

However, if one accepts the definition of Ms. Jeantel, we have it from her own lips Trayvon thought he was being followed by someone with a security-related function … and knowingly attacked him anyway. Ms. Jeantel also told Morgan “nigga” was not a racial pejorative, but merely a word for any male. If Mr. Morgan believes this, he’s invited to drop by the New Black Panther Headquarters, shout “Hi, niggas,” and get back to us with his report of how it went for him.
The overwhelming weight of evidence and common sense alike tell us Trayvon Martin initiated the physical confrontation. And that’s what counts in both law and logic. No matter how righteous it may seem at the time, anger never justifies physical assault. Thus, the 10th point of the plaintiff/prosecution trope is struck off the list.

Altercation & Minor Injury

Elements 11 and 12 as listed above are classic examples of minimizing the other side’s argument to make your own point — which is something of a “dirty debate trick.” Words mean things. One could call the Vietnam conflict an “altercation,” but the word insults the loved ones and the memories of the more than 50,000 Americans who died there. Surviving Vietnam vets will tell you, “No, sir, it was a war.”

This is why so many in the criminal justice community rolled their eyes when they heard this event called an “altercation.” Within the first 48 hours, trained and experienced police investigators determined Zimmerman had been beaten by Martin, was down under his attacker in a martial arts “ground and pound” he could not escape, and was getting his skull smashed against a hard surface.

It was, in my opinion, disingenuous for the prosecution to try to convince the jury the shooting wasn’t justified because Zimmerman hadn’t been hurt badly enough yet. Any graduate of Logic 101 — let alone law school — knows or should know the whole purpose of self-defense with lethal force is to prevent death or great bodily harm. If you wait until you’ve been shot to return fire, for example, you’ve failed in prevention.

Similarly, if you wait until your brain has been turned to jelly or is leaking out of your head through an open skull fracture, you’re too late. Indeed, an unscrupulous lawyer might argue if you waited until after you believed you were mortally wounded to pull the trigger, you acted out of unlawful revenge rather than perfectly legal prevention. The extent of injuries already received — except as a reasonable predictor of more and worse to come — was irrelevant, and it appears the jury saw it as well. Scratch elements 11 and 12.

Disparity Of Force

Many people, even some who should have known better, could not get past the 13th and last element mentioned earlier here: the perception if an armed person kills an unarmed person, it must be wrong and punishable. The courts have long since recognized a principle called disparity of force. This is a situation in which the ostensibly “unarmed” person has such a great physical advantage over their opponent, death or crippling injury is likely to result the longer the conflict continues. This disparity becomes the equivalent of a deadly weapon, warranting the other person’s choice to use a deadly weapon in self-defense. (See American Handgunner’s Ayoob Files entry titled “Fist Vs. Gun” in the Sept/Oct 2013 issue in the online digital editions, for more on this topic.)

Disparity of force can be illustrated in a variety of scenarios: unarmed attackers outnumbering a victim, huge size and strength disparity, much greater skill in unarmed combat or any of several other elements. One such element is position of disadvantage. Here, pinned in what eyewitness John Good described as a “ground and pound” by Martin, Zimmerman was all but helpless to stop the beating.

Zimmerman couldn’t escape — the reason why the “stand your ground” principle was not applied by the defense, even though the pundits erroneously linked this hot button topic to this case — and he had no reason to believe the potentially fatal beating was going to stop. Moreover, his head being smashed against concrete was really little different from a man with a concrete block smashing him in the head; either way, the contact was likely to result in death or great bodily harm if not brought to a halt immediately.

Defense co-counsel Don West alluded to this in his opening statement, when he told the jury Martin was “armed with the sidewalk.” And this is all before you look at Zimmerman’s statement declaring Martin saw his gun and was reaching for it! The jury came to understand this, too — which is why the clueless meme of “unarmed murdered by the armed” fell on its face in the end.

Lessons

There are several learning points here. After this highly publicized case, I wouldn’t be surprised if enrollment in Neighborhood Watch programs dropped significantly. Lesson: Few good deeds go unpunished.

Despite the furor this case raised among gun prohibitionists, the Kel-Tec PF-9 obviously saved Zimmerman’s life. Lesson: You never know when you’ll need the gun you’re licensed to carry — so carry it wherever you legally can.

It’s popular to say, “Never talk to the police.” But if Zimmerman hadn’t, he likely would have been arrested that night. The recorded interviews and reenactment saved him the ordeal of testimony and cross-examination, while still getting his story across. Hell, Zimmerman even took a lie detector test at the police station (voice stress analysis) and passed. Had it not been for the freak firestorm of politicized publicity, it’s unlikely he would have ever been charged. I personally would have said much less before having legal counsel with me, but talking to the police worked in this case. Lesson: Let the police know it was the other guy who attacked you, so they know what to look for as they investigate.

In the world of iPhone cameras, consider using yours to record at least sound and even video if possible. If Martin’s attack on Zimmerman had been recorded, I doubt he ever would have gone to trial. Conversely, if the plaintiff’s meme had been true, a discreet camcorder in Trayvon’s pocket would have sent George Zimmerman to prison by now. Lesson: Patrol car dash cams and TASER Cams have saved many cops from false allegations … and can save you, too.

There’s much to learn from this case. Books will be written about it, and I hope my friend Attorney Andrew Branca writes one. He sat through the trial in the courtroom and blogged about it daily at www.legalinsurrection.com. His insight as a lawyer, and particularly the comments of the countless trial attorneys who posted their take on things there, are most instructive. My own observations on the matter are found in more detail in my blog, beginning mid-July 2013, at www.backwoodshome.com/blogs/massadayoob.

I wish to express condolences to the families involved on both sides. If Trayvon Martin’s mother didn’t love him, she wouldn’t have practiced tough love and kicked him out and sent him to his father when he became uncontrollable at home. The Zimmermans have been through financial devastation, death threats and public excoriation — all undeserved. There are no winners in things like this. Finally, congratulations to Mark O’Mara and Don West for the defense, and to the honest witnesses called by both sides … and to a jury, which I believe did Justice.
By Massad Ayoob

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