Don’t Blame the Jury: How the Law Sometimes Fails

Posted on July 15, 2013


Many observers have lamented the outcome of the Trayvon Martin case, and I agree with them that there has been a miscarriage of justice.  But laws are painstakingly, maddeningly, cripplingly specific, and I suspect that is what the jury went up against.

In my Army days, I served a couple of times as an “Article 32 Investigating Officer.”  This is the rough military equivalent of a Preliminary Hearing or a Grand Jury, and my role was the equivalent of a judge in such a case.  The purpose of such a hearing is to determine if there is enough evidence to send a case to court-martial.  The standard of proof is merely a “preponderance of the evidence,” rather than “beyond a reasonable doubt.”

In one of the cases I oversaw, the charges were Conspiracy to Commit Murder, and Adultery.  The young lovers wanted to bump off a troublesome spouse so they could be together.  We had a witness who had been asked to commit the murder; we had recordings from a wiretap; we knew the plan.  Easy, right?  Not so much!

Every crime consists of certain legally defined elements; if even one element is not present, then no crime was committed.  This charming pair had “checked all the blocks,” so to speak, but one:  there was no overt action to set their plan in motion, because CID had moved in and arrested them as soon as they had the evidence that a plan was formed.

It was clear to me that these lovers really intended for the spouse to die; they had come up with a plan to accomplish it; they really thought their “hit man” was going to do it; they were guilty as could be.  But without that last element, there was no crime, believe it or not!  I combed and re-combed the Uniform Code of Military Justice for some other crime that might fit their actions; there was nothing, not even Misprision of an Offense (that would have required the offense to actually happen first).  I was pulling my hair out; privately, I cursed CID for not at least allowing them to go out and establish their alibi (that would have qualified as an overt act).  But nothing changed the fact that my hands were – infuriatingly! – tied.  Legally, there was no conspiracy.  All I could do was forward the adultery charges, and come away with a new appreciation of just how maddening – and sometimes unjust – these nit-picky legal definitions and requirements can be.

When the jurors in the Trayvon Martin case asked the judge for clarifications on the definition of manslaughter, I suspected that they, too, were tearing their hair out, looking for something within their power that would fit Zimmerman’s actions.  I don’t think their decision was racist.  I think their question about manslaughter shows that they viewed Zimmerman as culpable for Martin’s death, but they were stuck with the way the law is written, the same way I was.

Here is the specific paragraph known as the “Stand Your Ground” statute:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

In the context of the Martin case, Martin probably had more reason to be afraid than Zimmerman did, at least initially.  Consider:  according to testimony, Martin noticed a stranger in a vehicle trailing and watching him as he walked on the sidewalk.  As a guest in the neighborhood, he was unfamiliar with the residents.  It was getting dark.  When Martin turned away from the road where the vehicle could not follow, the man exited the vehicle and followed him on foot.  Think about this happening to you.  It is a creepy, scary scenario.

As for Zimmerman, the scenario from his point of view was: there was a recent history of break-ins in the neighborhood.  He spotted a young stranger walking on the sidewalk, and called 911.  But Zimmerman was armed, in a vehicle, surrounded by the homes of neighbors he knew, and the stranger was continually moving away from him.  He had no reason to believe he was in any danger at that point.

But then he chose to exit the relative safety of the vehicle and follow the stranger, and that’s where I have a problem with the way the “Stand Your Ground” statute is written.  I am all for “no duty to retreat,” and technically, Zimmerman had as much right to the sidewalk as Martin did.  But there is no question that Zimmerman pursued Martin and created the conditions for a confrontation.  Again, at least initially, Martin had more reason to be afraid of Zimmerman’s unknown intentions, than Zimmerman had to fear Martin’s.

The setup for the confrontation was, I think, all on Zimmerman.  But that’s not how the law is written.  It is written “a person… who is attacked.”  The problem is, we don’t know exactly how the confrontation unfolded.  Zimmerman’s known actions were inadvisable, but not outright illegal.  What we don’t know, and what the law demands to know, is:  who was the attacker at the moment the fight erupted?  The only living person who really knows exactly what happened is Zimmerman.

It is exactly this kind of law, and this kind of case, that lends itself to a civil suit.  I expect that will be the next step.

For the black community’s various reactions to the verdict and outlook on what it means for the future, go to The Root.