Thursday, March 22, 2012

My Trayvon Martin take

I'm sure you've all been on tenterhooks waiting for me to blog about Trayvon Martin. I actually first heard about the case before I went on vacation, but decided to wait on commenting. I thought I might actually blog about it while on vacation (ha!). Then I figured I would get a blog post up right away when I got back, but the evil ick got me so the extent of my exertion the past two days has been moving from the couch to the bed and back. Plus, I wanted to make sure I had done my research and knew what I was talking about before wading in.

17 year-old Trayvon Martin was walking back to his father's girlfriend's house in a gated community in Florida. He was black and wearing a hoodie sweatshirt, with the hood up. It was after dark. George Zimmerman, in his mid to late 20s, was sitting in his car volunteering as a neighborhood watchman. He had a loaded gun. He called 911 upon seeing Martin walking through the neighborhood and "looking suspicious." According to Zimmerman, it was clear this kid was on drugs or something. No evidence has been presented to support that assertion.

Zimmerman got out of his car, against the advice of the 911 dispatcher, and followed Martin. There was a scuffle. Someone called out for help. Then there was a gunshot. Martin was dead on the sidewalk and Zimmerman, some weeks later, has yet to be arrested.

The police have responded to the national outcry by insisting that they were "prohibited" from arresting Zimmerman by Florida's "Stand your ground" law that immunizes anyone who uses deadly force in self-defense.

Having read the statutes, having listened to the 911 tapes, having read the articles, I can now officially say what my gut reaction was in the first place: I call BS on the cops who refuse to arrest Zimmerman. There is absolutely nothing in the Florida law that in any way, shape, or form "prohibits" the police from arresting this guy. There is nothing in the law that says an armed man can confront a teenager on a street, stalk the kid, force a confrontation, and then shoot him and that the police will subsequently be powerless to so much as question his version of events.

Here is the section of the statute that relates to the use of deadly force by a person not in his/her dwelling:

(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.  Fl. Stat. 776.013

There is no presumption in favor of the shooter in that section. There is no statement that the shooter's version of events is to be believed unless strong evidence rebuts it. All this statute presents is a defense that is a factual question for a jury to decide. Did the shooter reasonably believe the force was necessary? Pretty standard self-defense, really. Just because this particular statute removes the duty to retreat element doesn't mean the statute doesn't still operate as a defense to be presented to a jury.
But there is another statute in the chapter that goes more to why the police claim they couldn't arrest Zimmerman. Under Fl. Stat. 776.032, a person who uses force as permitted in 776.013 is immune from prosecution. (Prosecution includes arrest and detention.) So this is why the Sanford, FL police don't think they can arrest or charge Zimmerman? Because:
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful. Fl. Stat. 776.032.

Ok. So the police need to establish probable cause that the force was unlawful. Probable cause is a pretty low standard and is pretty much what's necessary for any arrest. Probable cause is something that might be met here by showing that Zimmerman initiated contact with Martin (he's the one who got out of his car and pursued the kid). And by showing that someone was yelling out for help, a yelling that ended with the gunshot, which tends to support the idea that it was Martin who was yelling for help. Or by the words of a 911 caller who described there having been "something" on top of Martin, presumably Zimmerman.
There's also this tidbit in Florida statutes:
 776.041 Use of force by aggressor.The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

So the police could easily find probable cause (a low threshold) to find Zimmerman's use of force was unlawful. Or they could point to 776.041 and argue that Zimmerman was the initial aggressor, as he was the armed man who chased an unarmed teenager down the street. That fact is clear from Zimmerman's own 911 call. But there is nothing in these statutes that the police can credibly point to that "prohibits" an arrest and a charge in this case.
But isn't that what we all pretty much knew? This isn't a case of police hands being tied by outrageously pro-shooter laws. This isn't a case of a poorly-written statute justifying behavior that feels criminal to lay people. Not at all. This is a case of police taking the word of the grown, armed man who slaughtered an unarmed teenager on a sidewalk. 

And this is what ultimately gets me about this case. What got me about it the first time I heard about it. No client of mine has ever gotten this kind of benefit of the doubt from the police. No client of mine has ever had his version of events so accepted as gospel truth, especially in light of 911 tapes that suggest otherwise. Even with a statute that says a person who acts in self-defense is immune from prosecution. Unless it's super clear-cut that it was self-defense (like the woman asleep in bed, in her pajamas, who hits the armed intruder over the head with a lamp and lucks into killing him), the cases get charged. They at least go to a judge as fact-finder. They don't just stop at the police. The police don't just take the shooter's word for it.
So here's what really happened in this case: A wanna-be cop, neighborhood watch guy saw a black kid in a hoodie and assumed that he was up to no good. He was tired of these no good punks (or other words...) getting away with it. He pursued the kid. When the kid wound up dead, the police who responded didn't much care because they secretly agree with Zimmerman that they're tired of seeing these guys get away with it. (Even though Martin wasn't getting away with anything but skittles, which he'd paid for.) So they were gonna let Zimmerman get away with it. Until Martin's family got the public to take notice. And now that the national outcry has gotten back to Sanford, the police are hiding behind a statute that does not in any way say what they need it to say to justify their lack of action. Because they don't want anyone (possibly including themselves) to think about the racial and class implications of their decision to trust George Zimmerman.
Under Florida law, George Zimmerman can be arrested and charged for his actions. The case can be presented to a fact-finder for a determination of whether his actions really were justified. It is absolutely criminal that the Sanford police department has thus far been unwilling to take this case to a court of law, but would instead cover it up and keep it from seeing the light of day.
There are so many other issues this case touches on that might explain why the police are so willing to forego charging Zimmerman. But I'm still very tired and fuzzy-headed and can't get into that all now. For tonight, I'll stop at exposing the lie behind their feeble claim that the law "prohibits" the charge. It doesn't.


Anonymous said...

I'm sure this would have played out exactly the same way if the 17-year old was white and the killer was a black man.

BellsforStacy said...

I think Zimmerman should have been brought in for questioning or arrested or whatever. He killed him. An unarmed teenager. He can not feel good about that and he deserves to be punished.

But I hate to believe it's racially motivated on the part of the police, but they sure don't look good right now. Even considering this story:

That Zimmerman had "lacerations" (which could be a scratch from the pavement) and a "broken nose". Which I don't doubt, but what if Treyvon was defending himself from the mystery guy that was following him down the street?

It's a tragedy and I hate this story and I hope it's punished to the full extent that it can be. But I want zimmerman to get a fair trial too and I think that as of now, with all this pressure, it's going to have to be trumped up charges that may not fit. And charging him with a hate crime seems a stretch, to me, who does not know all the facts, so I can't say with certainty. But I will say, if I saw a strange teenage boy in a hoody walking down the street and he didn't belong ... I'd call the cops too. We've had break ins to garages and once I did see a kid/young man walking down the alley ways and looked like he was waiting behind my neighbors house for her to leave. So I did call the non emergency line and they sent out a patrol car, and the kid ran so the cop followed him and asked him questions. He wasn't doing anything wrong, he was waiting for a ride. But it was suspicious.

THAT is what should have happened. THAT is all that should have happened. I feel so sorry for Treyvone and his family and Zimmerman is an idiot, a murderous idiot.

But I'm scared with all this uproar he stands no shot of a fair shake. And the media reports of citizens threatening militia violence and an "eye for an eye" are not good for this process either.

The other thing that makes me sad ... every report every where ... "black teenager Treyvone Martin." Isn't it enough that he was a teenager? Isn't it enough that he was a person? If I was killed it wouldn't say "white thirty something" it would just say thirty something. This is a tragedy because he was a person that was murdered wrongly, not because he was black. Maybe the color of his skin meant something to Zimmerman, but it shouldn't to the rest of us.

Okay off soap box.

BellsforStacy said...

I spelled Trayvon's name wrong. Sorry!

Rob Osterman said...

I'm going to agree with Stacy too.. there's no chance at this point for Zimmerman to get anything close to a fair trial. He's humped. He gets acquitted and there'll be riots. He goes to jail he's going to get the worst treatment.

The police should have arrested him, done the mug shots, and followed some procedure to show that they at least recognized that a kid was dead, even if it was all with a shrug and a "don't worry this won't go anywhere".

BellsforStacy said...

This is a geniune question and not me being a smart ass ... does that stand your ground rule come into play if Trayvon did punch him and slam his head into the pavement?

The only thing I'm thinking, is that the police knew that stuff and didn't release it, and that's why they didn't arrest him? Is that possible?

It's still a tragedy, to my mind, and the saying "Trayvon brought a knife to a gun fight" comes to mind. So I don't think anyway this goes it's going to be good.

S said...

I have to say, I'm a little suspicious of the head-slamming claim. It seems to me if he really had a broken nose and the bruises that naturally follow, a photo would have leaked by now. But that's a total digression.

I think the real problem with this case starts with the fact that the police didn't investigate. They got Zimmerman's statement and perhaps found a witness who corroborated part of it. But the 911 tapes, from what I've heard, clearly cast doubt on Zimmerman's story. And the girl who was on the phone with Martin was apparently never even questioned, which seems like a pretty obvious problem.

As for the stand your ground, it could apply if Martin indeed punched Zimmerman, hit him in the head, etc. Except with the caveat that the initial aggressor can't claim self-defense and I would imagine that, if Martin really did punch Zimmerman, Martin (or whoever now speaks for him) would say it was in self-defense to the guy who was stalking him.

Which really just lends further support to my initial, gut reaction that this is a case that freakin' needs to get to a finder of fact to sort out all of the differing witness accounts and look at the physical evidence and etc. (I would imagine there's got to be some physical evidence that could help sort out the question of whether Martin was on Zimmerman or the other way around when the shot was fired. Most notably the condition of the sidewalk, the position of the body, blood pool.)

BellsforStacy said...

My fear is that information will come out, it will condemn Martin, but everyone will be skeptical because it wasn't released immediately and Zimmerman will still be labeled a racist (which maybe he is) and either have to be charged with something, or be like that Chicago guy who caught that foul ball and have to change his name and move in order to live out his life.

If it doesn't condemn Martin and instead condemns the police, Zimmerman is still screwed, gets charged with WAY more than he should be to compensate and the police fire one figure head type to make amends but the problems are still largely still there.

Leaking a photo of Zimmerman doesn't fit with what the media is saying or where they started. It would embarrass them. This shares so many qualities with how the media handled the Duke Lacrosse situation that I'm very nervous.

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