There is a lot being written about the Zimmerman trial. And the verdict. And the aftermath. So here is my brief take on it:
1. This never should have been a criminal trial. Conviction for most crimes requires both actus reus (a criminal act) and mens rea (the intent to commit the crime). From the beginning, it was clear that George Zimmerman lacked the requisite intent. The police knew this. The state’s attorney knew it. The decision to prosecute George Zimmerman for second degree murder (which required not only proving intent to murder, but also acting with a “depraved mind”) was stupid, motivated by politics and pressure. The fact that the state's witnesses provided some of the strongest evidence on Zimmerman’s behalf (and keep in mind that the ones we saw and heard were the best witnesses the state had) is further proof that the original determination that Zimmerman was acting in self-defense – or reasonably believed he was - was accurate. Setting up a very public trial for what would be a very public inevitable failure – or reversal on appeal, had the verdict gone the other way – was profoundly irresponsible. Even a brief glimpse at the news coverage, or blogs, reveals the depth of public misunderstanding, shock, disillusionment, and anger. This could have been mitigated had people had the courage to explain up front why a decision to prosecute criminally was fatally flawed. (As well as the other, better options that the Martin family had. See #8, below.)
2. Zimmerman has a strong case of defamation against NBC. It’s true that public figures like Zimmerman have to use the tougher ‘actual malice’ standard set forth in the New York Times v. Sullivan case. Zimmerman would have to show that NBC damaged his reputation with information that they either knew was false or published with reckless disregard for its truth or falsity. Deliberately doctoring the 911 audio tapes to make it appear that Zimmerman was motivated by racial animus is a strikingly clear-cut example of actual malice. It’s been stated that Zimmerman is suing. Here’s hoping he wins. The media needs to be taught a lesson.
3. Three cheers for honest IT guys. And the state’s attorneys should be fired, if not disbarred. As John Fund explains in National Review Online this week, Ben Kruidbos (the Florida state’s attorney’s IT director) saw that the prosecution wasn't turning over exculpatory evidence to the defense, as they are REQUIRED to do by law. Through attorneys, he made the defense aware of this, and for that, he was fired. This should be a case study for ethics classes in law school. And someone who wants an honest employee should hire Kruidbos immediately.
4. Florida's criminal procedure is screwed-up. The prosecution chose to pursue a second degree murder charge. After it became clear that there was no way they would get a conviction - and after the defense had rested its case! They asked the judge to tell the jury to consider manslaughter and child abuse as additional counts. The defense was given no opportunity to prepare or present a defense to either of these charges. The judge rejected the child abuse charge but gave the jury instructions about manslaughter. To my astonishment, this is apparently allowed under Florida law. It is unconstitutional. And, ironically, since no time was spent at trial presenting a case for manslaughter, probably further undermined the state’s ability to get a conviction on that ground. Dumb.
5. The media is corrupt, deceitful, and irresponsible. As we amply see during political campaigns, most of our media refuses to report the truth unless it fits within one of their fave narratives. When Trayvon Martin was killed, we were introduced to a new racial designation: “White Hispanic.” George Zimmerman – someone whose Peruvian mother would certainly qualify him as “Hispanic” if he were applying to college, or for a job -- suddenly became “White” so that the media could make this a case about racial animus. Specifically, they had to make it a case of white-versus-black racial animus, even when the facts did not bear that out. As noted above, they selectively edited the 911 tapes to make it appear that Zimmerman was profiling Martin. They distributed and published the most unflattering photographs of Zimmerman, and childhood pictures of Trayvon Martin, creating the impression that he was even younger than his 17 years when he was killed. As even the FBI’s extensive investigation has demonstrated, George Zimmerman did not have a history of racist attitudes, statements, or behaviors. None of this takes away from the tragedy of Trayvon Martin’s death, or the immeasurable loss to his family. But the media’s inaccuracies have rubbed old wounds raw and inflamed public passions -- particularly among African-Americans in this country -- and for no reason other than that it gives them something to talk about and makes them feel important. The press apparently cares no more for the sufferings of American blacks than they do about George Zimmerman, whose life they seem hell-bent on destroying. Horrific.
6. President Obama's measured statement following the verdict was much better than his earlier comment. (“If I had a son, he’d look like Trayvon Martin.”) Enough said. For the moment.
7. The entire tragedy was based upon fear and bad judgment. George Zimmerman was afraid that the young man walking through his neighborhood was another burglar, following a rash of break-ins by similarly-dressed young men. His fear may have been rational, but his decision to follow Trayvon Martin was bad judgment. His decision to confront him was bad judgment. Trayvon Martin likely could not figure out why someone was following him. It was getting dark, and his description of Zimmerman as “creepy” certainly conveys fear. Martin’s friend Rachel Jeantel told Piers Morgan that she thought the man following him might be a sexual predator. This would terrify any young person. But Trayvon Martin could have done a lot of other things besides turn and fight George Zimmerman. That was also a bad decision, with terrible consequences.
This complicated series of events does not fit neatly with the narrative that the media, certain political figures, and public intellectuals prefer to pitch. Nearly none of the “mainstream” media figures have had the courage to tell the truth. William Salatan in Slate this week is the exception. Everyone should read his column.
8. Expect a different result in a civil suit by the Martin family. Fear and poor judgment are typically not criminal. But George Zimmerman is an adult; Trayvon Martin was a minor. And when you use bad judgment, you're carrying a loaded weapon, and someone dies, that sounds like a basis for civil liability. A tort case will go very differently. Not only does a wrongful death case sounding in negligence not require intent, but the burden of proof is much lower - the plaintiffs need only prove their case by a "mere preponderance of the evidence," not "beyond a reasonable doubt." My prediction is a verdict in favor of the Martin family should they bring a lawsuit, and a substantial judgment. It will not bring Trayvon back, but it would send a clear message.
Even if that happens, will it silence those who insist that the verdict was a miscarriage of justice, that the American legal system is hopelessly biased against blacks, and that George Zimmerman is a vicious racist who left his home that night intending to kill someone? Doubtful.
9. Where is the outrage over the deaths of other young black men? Just in Chicago. Just in 2013. Look at the pictures. Read the names. Every one of these deaths is a tragic loss to their families. Don’t they deserve our attention?
10. Hey juror B-37 – why not donate the money? I don’t blame the jurors for wanting to tell their story. But it is unseemly to make money from it, when both the Zimmerman and the Martin families are suffering. If you are going to write a book, why not donate the proceeds to a worthy cause? Haven’t enough people profited from this misery?
Laura Hollis is an Associate Professional Specialist and Concurrent Associate Professor of Law at the University of Notre Dame, where she teaches entrepreneurship and business law. She is the author of the forthcoming publication, “Start Up, Screw Up, Scale Up: What Government Can Learn From the Best Entrepreneurs,” © 2014. Her opinions are her own, and do not reflect the position of the university. Follow her on Twitter: @LauraHollis61.