The reaction to the Zimmerman not guilty verdict speaks loudly about the size and extent of the continuing racial divide in the United States. I've been trying to come up with a way for my white friends, even the most conservative of them, to understand what Black America is feeling and thinking. And to help my black friends understand what many whites are thinking, understand the legal obstacles and develop a successful action plan to make sure that this time, change happens. And to help us all move forward in peace.
The reason there is such a disconnect, I think, between white and black America on this case is precisely because many whites think that Trayvon threw the first punch, and then deserved what he got (or so their argument goes). From black America's perspective, Zimmerman racially profiled him and, by stalking a teenage child with a gun, essentially started the fight, even if Trayvon may have thrown the first punch, which they don't believe for a second. And they say to paint him as a thug or paint him out to be a violent aggressor that did throw the first punch is itself racial bias.
But it's this line over when it's ever appropriate to throw the first punch and who exactly threw the first punch that is at the heart of the difference in a lot of people's view of the case's outcome. It's a way to discuss the matter to reach the hearts of even the most hardcore of your conservative friends. A way to start to open up their minds. A way to help kickstart the healing process for the nation that still needs to occur. So I came up with this question and posed it to my friends:
We should all be able to agree that you never have the right to throw the first punch.
Which is the law. Or was the law. Or can we even agree on that much?
Which is the law. Or was the law. Or can we even agree on that much?
Apparently not.
To me personally, it's just quite amazing that we cannot all agree on this one very simple common sense rule. Don't throw the first punch. Yet, my friends, who included both hardcore conservatives AND very progressive liberals consensus answer was: "you can throw the first punch if someone is a bully, or brandishes a weapon, or once the fight dance starts, or once fighting words have been spoken, or if you feel threatened that you may not make it home, even if it's not life or death, if you're concerned another may harm you in any way physical." (The phrases in this consensus answer are equally split between liberals and conservatives, and the last portion came from a conservative).
I don't necessarily agree that is the law, btw, but let's just take their neutral answer at face value.
So doesn't that apply to Trayvon Martin? Didn't George Zimmerman do some, maybe even all, of those things in their encounter? (Not to mention that we had an adult gunman "stranger" stalking a kid who was taught by his parents not to talk to strangers, like we ALL teach our children). And if so, my conservative and liberal friends who responded (and perhaps you too if you agreed with any of their answers), have just said, if it was them, they may have, or would have, thrown the first punch, just like Trayvon may or may not have done. And the evidence, America, is inconclusive on that point. The only person alive who really knows is George Zimmerman, who may not be credible.
Whether you are conservative or liberal, apply your own rule in your own life as to when you would throw the first punch to Trayvon Martin and his situation, and what he was experiencing and thinking at the time Zimmerman stalked and then confronted him. If you find that your answer would justify your own actions, but not Trayvon's actions, that difference in your answers may reflect your racial bias as to your view of the case and it's outcome. And if you're sitting there reading this thinking, "yes, but I would always act reasonably, and I don't think he did," that includes you. The evidence is inconclusive as to what exactly happened, but your view of it is not. Why?
We all just need to stop making "assumptions," stop extrapolating facts into more than they mean or turning opinions into facts. That is a big part of the problem on all sides of every issue in America.
And the problem is not limited to White America. Latinos do it too. Bob Dylan was recently racially profiled in Latin neighborhood as a scruffy old white dude acting suspicious. So they called police and he was taken into custody for acting suspiciously, not being in the right neighborhood, until the officer could check his ID. (See, http://www.dailymail.co.uk/tvshowbiz/bigbrother/article-1206617/Like-complete-unknown-Bob-Dylan-frogmarched-collect-ID-rookie-policewoman-fails-recognise-scruffy-music-legend.html)
Black America does it too. Make assumptions that favor the outcome they desire. A lot of us want to give Trayvon the "benefit of the doubt." However, the evidence is inconclusive as to what exactly happened. It is only wishful thinking to seriously argue that responding with violence was his ONLY choice, or his best choice, or even a good choice based on the evidence in the trial record. Maybe it was, maybe it wasn't. The evidence is not conclusive. And NONE of us really know for sure.
My point here is that assumptions, opinions, hopes, dreams, wishful thinking, and "maybe" is not enough in a criminal case. And while it has been helpful to have Black America open White America's eyes to these question, and to point out that all the assumptions trying to blame Trayvon or paint him as a thug who started it and deserved what he got are just that assumptions, harmful ones, and ones that may reflect a prejudicial bias. However, those making the opposite argument proclaiming Trayvon did "nothing wrong" and was completely innocent and blame free are guilty of the same flawed thought process. "Maybe" even with the "benefit of the doubt" is still not proof "beyond a reasonable doubt" (a 99.5% certainty). However, "maybe" might be enough in a civil negligence trial where the standard is a preponderance of the evidence (a likelihood greater than 50.1%) and consideration of all the circumstances can be viewed in a way that, while not conclusive, is more likely than not.
Until we're willing to discuss the "elephant in the room" it will continue to stomp on all of our dreams. The fact is that we ALL have built-in racial biases. Most of us choose not to act on the ones of which we're aware. But as the Harvard project on racial bias shows us, ALL of us have and act on racial biases of which we are not even aware.
It would be a travesty, and contrary to Martin Luther King, Jr.'s, words on non-violence, for this case to send out a message to our society that if a "creepy" guy is following you, you shouldn't retreat or find help or call police, but instead you should attack him, or worse yet, shoot him. What a horrible message to send anyone or our kids. The answer is not to promote violence, but to promote better understanding and communication. To educate ourselves about our biases and the falsity of our stereotypes, or our societal stereotypes, and consciously attempt to do better in our own lives. To think before we speak and act, and to consider if bias or stereotype or false assumptions about another or their motives or intentions or circumstances may be at play in our thinking. Let's not gloss over that part.
Here are some thoughts for you to consider:
- The reason this is still an issue and will continue to be is because this type of racial profiling or stereotyping is far too common in our society. And really, we do need to fix that situation through education and opening people's minds and hearts. On BOTH/ALL sides of the issue. And soon. Are you willing to examine your own biases? Are you even willing to have this conversation with yourself, let alone your neighbors?
- The jury "agreed" with the proposition that the state did not prove murder or manslaughter, or disprove his self defense claims, beyond a reasonable doubt. Nothing more, nothing less. This does not mean Zimmerman is innocent, just not guilty beyond a reasonable doubt of the state's charges. We should and must respect the juror's verdict. This is a bedrock principle of our justice system. For good reason.
- Justice, Truth, and the Law are apparently frenemies. They are not always mutually inclusive. It is sad truth about our American justice system. But WE have the power to change unjust laws and our system.
- If we just changed the laws to take the guns out of the hands of civilian crime watch volunteers, there would be less tragedy. With no gun, Zimmerman would have never gotten out of his car or followed Trayvon. Even conservative juror B-37 agreed that this was a mistake in judgment that contributed to Trayvon's death. (See, http://www.mediaite.com/tv/cnns-anderson-cooper-interviews-anonymous-member-of-zimmerman-jury-who-defends-acquittal-decision/ ) I think almost all of us can agree that Zimmerman's decision to get out of his car only makes sense if you have a gun. Actually, we ALL should be able to agree with that.
- It is for this, and other reasons discussed below, I think the family has a good chance of proving up a civil negligence case against Zimmerman. I also think, however, that the beyond a reasonable doubt applied in criminal manslaughter and murder cases is, and should be, a particularly high standard of proof. For good reason.
- I agree with those that say the police should have arrested Zimmerman more immediately. Otherwise, justice would be meaningless. I think the media has made a circus of this case intentionally for commercial profit. Not all, but some, perhaps even most of the major media corporations. But let's remember that what really made a mess of this situation was Zimmerman and his gun. I think a trial was warranted. He killed an unarmed boy. On purpose. We should all be able agree you should be required to explain that deadly decision in court and that requirement to do so should actually be the law in every inch of America.
As someone who has actually successfully tried Federal civil rights cases, we should keep in mind that the DOJ would have to prove that he intentionally pulled the trigger in that moment because of Martin's race instead of because the kid attacked him first and/or was beating the shit out of him. That evidence is not conclusive. If you claim Trayvon did "nothing wrong" you've got to prove he did not start the fight and that he was not beating the shit out of him. Or that he had no other choice given the actual circumstances that confronted him. And the truth is, nobody knows. It is not enough in such a case to prove merely that he profiled him, got out of the car, or followed him because of some racial bias because Federal hate crimes prosecution would require proving Zimmerman was motivated by malicious racial intent at the moment he shot Martin AND did not act reasonably in defending himself "beyond a reasonable doubt." The families civil suit, on the other hand, would only require proving negligence by preponderance of the evidence, and unlike a Federal criminal trial, he would have to testify.
In other words, it'd be much easier for the family to successfully prove in civil court that Zimmerman was negligent, even grossly negligent, particularly since Zimmerman would be forced to testify, which would magnify the effect of any lies and the focus is much wider in negligence to include all the circumstances leading up to the event - the racial profiling and decision to follow. But when you raise that standard to malicious racial intent at the very moment of the shooting plus proving complete lack of any valid self defense claim, all beyond a reasonable doubt, as would be necessary to prove up a Federal hate crime, then the focus narrows to only their physical altercation - the much higher burden of proof essentially acts to hyper-elevate the importance of what happened during their actual confrontation and physical fight, unlike the much broader evidentiary focus of a civil negligence case. And it makes proving up such a case much more difficult. I don't expect the DOJ is going to go forward, but they might. The family, on the other hand, has a much better chance to prevail in a civil lawsuit.
If you claim Trayvon was acting in self defense, you've still also got to prove that beyond a reasonable doubt in a criminal case, unlike a civil case, and the evidence is not conclusive. Also, you've got to prove beyond a reasonable doubt that the facts of their actual confrontation, not just the profiling or following, fully justify Trayvon's conduct, for the reasons discussed above.
Personally I'm just not 99% convinced Trayvon did "nothing wrong" here. I'd like to think that. I hope that's true. However, the actual admissible evidence at trial was just not conclusive. That fact makes it really hard to prove up anything beyond a reasonable doubt as required in a criminal case. However, it also has less of an impact in a negligence case, i.e., you might still be able to prove up beyond a preponderance of the evidence (50.1% v 49.9% chance) a negligence case even if Trayvon's own conduct may have (or may not have) contributed to the outcome.
The difference in a criminal case requiring proof of malicious racial intent at the time of the shooting is this is not really an objective standard, which perhaps it should be, but is viewed from the mind of the shooter - i.e. did he reasonably believe that his life was in danger and that was his sole reason for his action or was he also motivated, at least in significant consequential part, by any intentional racial prejudice. The medical evidence showed evidence of an actual fight, wounds that apparently were not self-inflicted, and a dispute in the testimony presented by both sides experts as to the significance or extent of the injuries. And for the sake of argument, I personally am pretty much assuming and conceding, unlike juror B-37, in all these discussions that Zimmerman is lying about exactly what happened. But the scientific and medical evidence, and the phone calls, prove Trayvon did fight with him. Unfortunately, there's no proof that Trayvon saw the gun at any time except right before the moment he got shot. (Personally, I think the prosecution screwed that up by not suggesting that Zimmerman had drawn his weapon or uncovered it on the way to the encounter, which could have happened, but again that's just speculation, and not proof beyond a reasonable doubt). Given the lack of witnesses to what actually happened at the critical moments other than the two actually involved, it may just be too impossibly high to meet the burden in a criminal case.
Many claim that if the parties had been reversed the outcome would be different. Maybe, maybe not. Remember, the prosecution actually made that argument to the jury in their closing arguments, and the jury apparently rejected it. Statistically speaking, however, you might be right, and that fact is certainly something that we need to desperately fix that in our society. Black America is correct. Maybe this case will help motivate us to do so. I hope.
So then what do you do if a "creepy" guy is following you and packing heat? What are your options?
One of my friends asked me this question, and my first response was, "I think you call the police, and either find help, get away by walking or hiding or running depending on the situation, or go home & lock the door, or go to a neighbor's and lock the door, or go to the nearest police station."
And then my friend Tanner responded, "Or stand your ground, right? That's why the law exists."
It stopped me cold. Is that what Trayvon Martin did? Is that what George Zimmerman did? Is that something we should even allow in situations where, as Attorney General Holder mentioned, you have a gun and have a reasonable opportunity to safely retreat? Which has been the law for centuries until the recent wave of Stand Your Ground laws were enacted in 33 states.
My personal view is that even under Stand Your Ground, you still have to act reasonably and not start a fight just because you're being followed, unless there is some further provocation. If the creepy guy just asks you a question, etc., then you have no right to hit him even if you're reasonably scared or afraid. But if the creepy guy attacks you first, or pulls out a weapon, or tries to put his hands on you, or tries to detain you against your will, you likely would be entitled to deck him. Right? And that gets us right back into the question of what actually happened during their encounter/fight, and proving it up beyond a reasonable doubt. But is that the law under Stand Your Ground?
Reading through these Florida Stand Your Ground decisions, you really begin to see why something is wrong with these laws. http://www.huffingtonpost.com/2013/07/16/stand-your-ground-cases_n_3606405.html
Don't be fooled by erroneous media reports into thinking Stand Your Ground has nothing to do with this case. It was very much a part of this verdict. In addition, the whole delay in Zimmerman's arrest, and some might say the poor job done by the police in not properly gathering evidence and the prosecution in putting on their case at trial, was due almost entirely to authorities initial belief that stand your ground was applicable to Zimmerman and the practical effects it caused.
I've heard many media commentators and talking heads incorrectly claim that Stand Your Ground laws have nothing to do with what happened in this case since the defense lawyers waived have a pre-trial Stand Your Ground hearing, which would, if successful, have avoided a trial altogether under Florida's law. The defense team waived a pre-trial hearing before a judge, but did not waive the issue at trial. Quoting from an ABC News story about that decision, Zimmerman's lawyer Mark O'Mara said: "We'd much rather have the jury address the issue of criminal liability or lack thereof." http://abcnews.go.com/m/story?id=19074241 They did not waive the issue for the ultimate trial, they just made a pre-trial strategic decision to let the jury decide the Stand Your Ground issue.
If you watched the trial, then you know the defense actually argued in closing argument that Zimmerman had no duty to retreat and was justified in meeting force with deadly force. This is the Stand Your Ground argument. AND the judge included the Stand Your Ground law in the jury charge she read to the jury. Here are the jury instructions, stand your ground language (look for "no duty to retreat and had the right to stand his ground" language) was in the jury charge at p.12. See for yourself: http://www.wesh.com/news/central-florida/trayvon-martin-extended-coverage/read-the-george-zimmerman-trial-jury-instructions/-/14266478/20950196/-/gio1u8/-/index.html
In states that have Stand Your Ground laws, as the Florida case survey article mentioned above demonstrates, perhaps we should at least write in and pass exceptions to asserting this defense if your conduct was motived in any part by race or bigotry or prejudice of any kind, or if you engaged in hothead activity or a heated argument which escalated the situation, or if you chose to forego a reasonable opportunity to call 911 and wait for police to arrive to help, or apparently, under Florida law, if you shoot someone in the back or are engaged in criminal gang or drug activity. And if we can agree most or all of these exceptions are warranted, then perhaps we can agree to just repeal the entire Stand Your Ground law. That is actually something positive that we all can and should do.
But given the law actually given to the jury in this case, which included Stand Your Ground language (and Joy Reid of MSNBC you actually owe juror B-37 an apology on this one), the justice system did not "fail the public," unlike the actual law itself, unless you are pre-disposed to a particular outcome based on your own bias or through an internal process of providing your and others' speculation and assumptions with the weight and import of actual facts. The evidence was not conclusive either way. And that is not enough in a criminal trial requiring proof beyond a reasonable doubt.
And while you may disagree with the verdict, or even with the juror's reasoning as it becomes known, there is no evidence the jury was "fixed" or "paid off," and so it does none of us any good to suggest that or think that way. The mentality of a community lynch mob often does not appreciate voices calling for objectivity and reason, and interfering with their desired agenda, even if that is when they need them most. And here, we need those voices. All 6 jurors unanimously agreed that the State of Florida did not prove up their case, based on the instructions about the law given to the jury, beyond a reasonable doubt. Their verdict means nothing more and nothing less.
In addition to changing unjust laws, we can change ourselves, and our neighbors by the example we set and the good judgment we exercise. And, as a society, we can move forward in teaching people how to recognize and overcome racial biases and stereotypes. We can be more careful not to make false assumptions. We can and should look into our decisions to charge and prosecute individuals to determine why so many more people of color are charged and prosecuted for crimes when whites, who have engaged in nearly identical acts, are not similarly charged or prosecuted. We can demand that justice be applied equally. We can insist, by investigation, that American justice be colorblind.
And we can implore our local and national media not to promote or engage, or seek to profit from sensationalism of any of these situations either. Imagine what would have happened in this case if ALL the media talking heads had just uniformly said "we do not know exactly what happened, and therefore we all should avoid jumping to conclusions, avoid letting our biases infect our judgment, and trust our judicial process"? Imagine if the national press corps had said while we can stir things up to sell TV ads, we think the damage we might do by stirring up opinions on both sides of the issue might do more harm than good? Are we really helping America move forward by intentionally stirring up controversy, encouraging extreme opinions, to increase ratings or commercial profit?
As a civil rights lawyer, I have read a lot of the writings of Martin Luther King, Jr. In my opinion, I think we can safely say that he would not be calling for riots or violence in response to this verdict, but he would be calling for action to change gun laws and for a national conversation about race and elimination of harmful stereotypes. But it is no longer enough to call for a national conversation on race. We have been making that call for decades. It has been nearly 50 years since Dr. King died. This time, we must actually have that conversation. We must look where we are ashamed to look. And we must bring our racial prejudices and biases out into the open and fix them. In ourselves, and to the extent we can, in others, and in our nation's laws. This time, we must take wise action.
There is a silver lining. Our youth are less hung up on race than older adults are. And that's a beautiful thing. And we elected our first black President. There is hope for America's future. It will be hard to have this conversation, and harder yet to overcome our biases, but it is necessary.
My friend, Evan Curtis said this: "I hate how I still do sometimes (act on stereotypes). It's not just race either. When I walk through downtown Tulsa and see a "creepy" homeless guy sometimes I'll avoid him. Black or white. Then I have to examine my conscience. Look deep into my heart and ask why. Soon after, I realize again the only thing that can fix this is love. I want to love people and when I slip into making assumptions, I'm not doing that. If we're going to get past this our culture needs to stop passing the idea of love off as some naive hippy notion."
I wanted to share that thought with you because I appreciate his honesty. We need more of that. And, because, as he suggests, maybe it's not just more love that we need, maybe we also need to recognize and change how our own false assumptions and stereotypes impair our ability to give love. What a beautiful truth to leave with you.
"Whenever any American's life is taken by another American unnecessarily - whether it is done in the name of the law or in the defiance of the law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence - whenever we tear at the fabric of the life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded." Robert Kennedy (1968).
Beth Isbell
Oklahoma City, Oklahoma
Former Civil Rights Attorney
July 18th, 2013
Is it possible to see our own biases, all of them? Is it possible for us to change unjust laws given our current political environment? It is possible for us to end suspicion in our society for Walking While Black or Driving While Black?
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In memory of Trayvon ...
White Is Black
©2013 BeTh isBell
White is black, but black is not white,
White is black, and something’s not right.
White is black, but black is not white,
White is black, and something’s not right.
You have a gun, you’re not afraid
You never run, from anyone.
You have a gun, you’re not afraid
You never run, you’ve got your gun.
White is black, but he is not white,
White is black, and something’s not right.
You have a gun, he’s got his candy,
You never run, you’ve got a gun.
And in the moonlight, when black is not white,
Something’s not right, something’s not right,
And in the moonlight, when black is not white,
Something’s not right, something’s not right,
And so you follow, ‘cause black is not white,
And something’s not right, something’s not right,
And so you follow, and then you fight,
Something’s not right, you’ve got your gun tonight,
And he is dead, and he is dead,
That fuckin’ punk, and now he’s dead,
And in the moonlight, when black is not white,
You pick a good fight, you’ve got your gun tonight.
White is black, but black is not white,
White is black, and something’s not right.
White is black, but he is not white,
White is black, but he is not white,
White is black, and something’s not right.
They always get away, they always get away,
These fuckin’ punks, they always get away,
But not tonight, but not tonight,
Something’s not right, you’ve got your gun tonight,
They always get away, but not tonight,
You’ve got your gun, and black is not white.
And in the moonlight, when black is not white,
You pick a good fight, you’ve got your gun tonight.
And something's not right.
And something's not right.
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