>> Monday, July 15, 2013
0. It was so nice and dark and quiet beneath all that sand.
I didn't follow the Zimmerman trial very closely at all. I don't follow public trials at all, usually. The media always gets everything wrong, for one thing. It's a lot too much like work, for another thing. It somehow strikes me as unseemingly voyeuristic for another, a form of rubbernecking. I mostly avoided most of the news on purpose, and I saw very little of the testimony.
1. What I saw was a mess.
Nevertheless, I saw a couple of YouTube clips. The longest one and the only one I sat through in its entirety was the cross-examination of the medical examiner, Dr. Shipping Bao.
I watched Dr. Bao's cross-examination because several of the websites I visit for news and opinion lauded Dr. Bao for supposedly holding his own against Zimmerman's attorneys. But that isn't what I saw. What I saw was a hostile witness who came across as evasive or maybe even a little confused. In many parts of the country, medical examiners are what attorneys like to call "professional witnesses", that is they're witnesses who participate in so many trials, they're familiar with basic courtroom norms like waiting until a question is finished and any objections heard and resolved before answering, addressing responses to the jurors and not just to the judge or questioning attorney, speaking clearly for the court reporter, etc. A witness who is a career professional in some field but has never testified in court isn't a professional witness; he or she may do well for themselves, through luck or preparation or good sense, but they don't have trial experience. Cops are often professional witnesses, because showing up in court for their cases is part of their job. Professional witnesses aren't just prosecution witnesses: for instance, the defense might call a forensic psychiatrist who has testified in hundreds of trials to offer testimony about the defendant's mental state at the time of the alleged crime.
Dr. Bao may be a great doctor, but he was a terrible witness. That whole bit where it turned out he was reading from notes he prepared in anticipation of possible questions was just awful--a professional witness would know you just don't do that, you can testify from contemporaneous notes (e.g. notes made during the autopsy you performed), but you don't get to take the stand with a cheat sheet. I don't know how it played to the jurors, but as a defense lawyer I thought it made him look like he was trying to pull something. I would have been happy to find out a witness I was cross-examining was doing that; sure, I'd play up my outrage in the courtroom, why not, but deep down I'd be delighted that it looked like the good doctor was so out to get my client he prepared a script.
From what little else I saw of the other witnesses, it looked like a lot of the State Of Florida's case was like that. Lousy witnesses who seemed kinda clueless at best, contradictory and hard to pin down at worse. That kind of thing is what costs one side of a trial their whole case.
2. Sometimes assholes walk.
This is how our system works. Sometimes assholes walk. Sometimes they walk because, technically, being an asshole isn't a crime even if someone dies because you're an asshole. Sometimes they walk because the system is supposed to favor assholes walking--that whole classic post-Enlightenment legal principle that it's better for five (or sometimes ten) guilty men to walk than one innocent be punished for something he didn't do.
3. I don't know what happened anymore.
When Zimmerman said Trayvon Martin beat him up, I was outraged because I'd seen photos where he looked pretty unbeaten to me. Then some other photos showed up and he looked kinda roughed up. Claims were made by various parties and then withdrawn.
Here's what I think I know now: George Zimmerman was a wannabe cop who was cruising his neighborhood looking for crimes to thwart. He saw a black kid in a hoodie who he thought was up to no good, and Zimmerman called the cops and the cops said they'd handle it. Zimmerman decided that wasn't good enough, and ignoring the instruction to stay in his truck, he got out of the truck and followed the kid...
...and something happened...
...and George Zimmerman had a gun and Trayvon Martin had Skittles, and Trayvon Martin died.
That middle part? A mystery, a puzzle box. An insoluble puzzle box, because nobody knows what happened. Hell, even if I wanted to believe George Zimmerman, what I think I know about memory and the way the brain works (or doesn't work) in a moment of trauma would require me to take even Zimmerman's "honest" memories with a large salt lick.
Nobody knows what happened in that middle part. Not the morning-after conservatives who have decided Trayvon Martin was a thug, not the morning-after liberals who have decided George Zimmerman is a monster; nobody.
And that middle part, by the way, is what a trial lawyer would call "reasonable doubt".
4. It's about guns.
Actually, there is something I think I know: I'm pretty confident that if George Zimmerman hadn't had a chrome-plated cock supplement in his pocket, he would have stayed in his car. And Trayvon Martin would still be alive.
I think you have to rewind it all the way back to that point. It isn't about whether Zimmerman had some right to defend himself, though we should probably talk about that. It's that it's hard to imagine that if Zimmerman had been unarmed, he still would have gotten out of his car; and getting out of his car was the proximate cause of whatever happened next. If Trayvon Martin attacked George Zimmerman, it was because Zimmerman got out of his car. If George Zimmerman threatened Trayvon Martin with a gun, it happened after Zimmerman got out of his car. So why did he get out of his car?
Because he felt tough. Tougher than the kid he was watching, anyway. If he felt unsafe, he could drive away--he'd done what he thought was his duty by calling the cops.
No, he had that shiny silver courage in his pocket, and then he killed a kid with it.
5. It's really about guns.
At the common law, and in many states to this day, you have a duty to withdraw from a confrontation if you aren't at home. At the common law, and in many states to this day, you have no claim to self-defense if you initiated a confrontation, unless you tried to withdraw and the confrontation was renewed by the other party. And at common law, and in many states to this day, you have an obligation to use only proportional force if you are unable to withdraw.
These concepts make sense, which is how they became the common law in the first place: the common law is the traditional law, established by generations of judges and legal scholars after much trial (no pun intended) and error. It makes sense that you can't go around starting fights, sticking around for them, murdering the people you bullied and then shrug your shoulders and say, "Hey, I was just defending myself." It's a very commonsense approach.
From what I can glean, none of this is the law in Florida anymore, nor in an increasingly-large chunk of the country. This appears to be the result of NRA lobbying, with states increasingly passing "Stand Your Ground" laws that remove a duty to withdraw, expand your right to self-defense, and immunize you from criminal and civil liability if you use excessive force.
This is pretty appalling, and frightening.
In another place and time, George Zimmerman would be expected to stay in his truck. If he stupidly got out of his truck and confronted Trayvon Martin, he'd be expected to withdraw to his truck. If Trayvon pursued him and started punching him, Zimmerman would be allowed to punch and push back to keep himself from being hit, but he would only be allowed to pull a knife or gun and exercise lethal force if Martin were doing so as well.
Florida law--and the law in an increasing number of states--is evidently designed to protect assholes.
6. It's really, really about guns.
George Zimmerman may not be a monster, but he's definitely a bogeyman. I mean a literal, real, actual bogeyman. Those of us who favor gun control are, I think, scared of two things. The first is crazy people with guns, the kind who get hold of firearms legally or unlawfully and proceed to shoot up a school or movie theatre or political meet-and-greet because "the silicon chip inside [their] head gets switched to overload", as the old song goes. And the second is George Zimmerman.
Or, more broadly speaking, assholes with guns.
Because if George Zimmerman is the gun-advocate's example of one of those law-abiding gun owners--Jesus.
We're scared of some nosy asshole busybody who feels eight feet tall because of his gun, who thinks he's Superman and Batman and Green Lantern all rolled up into one because he thinks he has the superhuman ability of stopping power tucked inside his belt. If someone asked you what you were doing walking through a neighborhood or what you were up here, you used to be able to tell them to go fuck themselves without thinking they might draw on you and try out their best Eastwoodian sneer.
And while I'm not a big fan or practitioner of violence, you used to be able to walk up to someone who started minding your business and stick your face in his face and ask him if he had a problem; well gods help you if he has a gun and feels the least bit intimidated, lest he whip it out to reassure himself he has the power here after all.
And for those of us who wouldn't be inclined to walk up to someone and go nose to nose and ask what was up his ass, let's hope all of our neighbors are as intimidated. A bullet goes where the laws of physics tell it to, and just because all the future George Zimmermans of the world were aiming at their interlocutors, doesn't mean their shot doesn't go far and wide and through your toddler watching TV two houses away. Gods help us if everybody's packing heat: Zimmerman meets Zimmerman in the backyard, "What's your problem?" "No, what's your problem?" If we're lucky, they only kill or maim each other.
Honestly, if I had to say whether I was more afraid of a bad guy with a gun than a good guy with a gun, I'm more afraid of a good guy with a gun. What if he's an asshole?
7. Did I mention it was also about assholes?
Because if you didn't pick up on it, George Zimmerman is an asshole. A monster, like his lawyer says he's been made out to be? I have no idea. A racist? Yeah, but probably in a low-key way we'll get back to in just a second. An asshole, though: definitely.
I mean, it's one thing (maybe) to drive around your neighborhood looking for things to call the cops about. Though you have to wonder about a guy who's just assuming the worst and ratting out strangers who aren't doing a helluva lot of anything; I mean, even if we take a charitable look at Zimmerman's claim that Martin was "casing" the neighborhood, it's still just someone walking down the street and looking at things, which used to be something you could do in this country. But then you get out of your vehicle after being told to let the cops handle it? You follow someone around and then, what, you're a grown man and you can't figure out a way to de-escalate a situation in a way that doesn't end with you shooting someone? Which I assume you were prepared to do, else why did you have that goddamn pistol?
8. It's about race.
Do I think Zimmerman would have followed a white kid around? I kinda doubt it. I agree with the press release the Southern Poverty Law Center put out:
Was race at the heart of it? Ask yourself this question: If Zimmerman had seen a white youth walking in the rain that evening, would he have seen him as one of "them," someone about to get away with something?
No, I don't believe he would have. I don't think a white kid would have struck him any particular way at all--though, then again, Zimmerman is an asshole and he was looking for trouble and he had that gun that made him feel all tough-and-handsome-like, so maybe he would have.
I think one of the things that some people have difficulty grokking is that racism isn't just putting on a white robe and burning a cross in someone's yard. There's also that tiny short-circuit most of us in the United States suffer from, that tiny synaptic gap where we react a certain way--even for just a flash--and react without thinking, jump to certain assumptions that have we have no evidence for. I think those of us who are self-aware enough catch ourselves doing it, and if we're not in the next tier of racists we feel guilty and uncool. The next tier of racists doesn't feel guilty. And the next tier acts on it, and somewhere up the scale you do finally get to the people in hoods burning crosses. But it's hard--I hope it isn't impossible, but who knows--to evolve past that very lowest tier so that the bad circuit is bypassed altogether and that spark never ever jumps the gap again.
I think Zimmerman's in one of those mid-tier ranges. I don't think he burns crosses and I don't know if he uses the n-word; but I think he saw Trayvon Martin as a black guy in a hoodie before he saw him as a teenager walking through a neighborhood. And if he did, he obviously didn't second-guess himself and say, "George, Jesus Christ, what's wrong with you?"
9. It's so about race.
But one of the ugliest things about this hasn't been Zimmerman. It's been the way so many people in this country have been willing to label the casualty of whatever happened that night as a thug, the way so many people have stereotyped Trayvon Martin. So many comment threads full of white panic about the black kid who surely was at fault here, and they can't be racist to point this out because George Zimmerman is Hispanic, so the people saying it's about race must be the real racists.
Well I'm not going to wholly disagree: if you didn't grok this from the penultimate paragraph in the last section, I'm afraid we're all the real racists. It's just that some of the real racists in this country realize this is a problem and feel bad about it and want to better themselves and their culture, while an unpleasant number apparently want to embrace the racism and even feel good about it while denying it exists at all (neat trick, that).
A lot of Zimmerman supporters want to go well beyond what might be a reasoned defense of George Zimmerman, e.g. that he was apparently within his rights under Florida law, or that there's some confusion about what happened that night and Zimmerman was and is entitled to the benefit of the doubt under our legal customs. These folks need heroes and villains, and if Zimmerman is to be a folk hero they must necessarily demonize the other, and the cheapest way to do that, they find, is to resort to stereotypes. And when they get called out for resorting to ugly stereotypes, they don't recant, they double down.
And then, when their side "wins", some of them want to go all-in: if they're not the real racists, if the real racists are the black folks saying race was a factor in all this, there will probably be some civil unrest, some rioting, some vigilante justice. It's hard not to armchair psychoanalyze and label this projection: these white folks "worrying" about retaliation wish they weren't so civilized and could give into their animal instincts as they're sure those people will. This is thoroughly repulsive.
One of the conclusions a person of good will has to draw from all of this, I think, is that as far as we've come along on race in the past six decades--we no longer have de jure segregation with separate schools and bathrooms, we no longer have whites-only swimming pools and lunchcounters, etc.--we have so far yet to go that one wants to lie down in the middle of the road and die of grief.
10. But is anyone listening to themselves?
But I was less angry and embittered by the usual suspects than I was by my own fellow travelers. Because as disappointed as I might be by overt, high-tier racists, I don't expect any better. I am unsurprised by the way gun advocates spin this whole tragedy--it's hardly different from the last time they spun a tragedy. While I'm not religious, I can't help recalling Luke 23:34, the perfectly apt quote for this kind of thing, these kinds of people.
But this weekend I saw a lot of Twitter tweets and Facebook status updates from people whose values I generally share expressing so much rage and unreasonableness, I found myself shrinking back in shock. Some from friends who I in fact know, some from "friends" in the Twitter and Facebook sense, i.e. people, mostly famous or at least Internet famous, who I don't know in any way at all other than the things they've said and done. I saw too many opinion pieces from thinkers I respect enough to regularly follow and read their blogs and websites where the writers frothed at the mouth without the kind of discretion and judgement I look to them for.
I saw responses reflecting a kind of disappointment I think is probably inappropriate: not just the disappointment that a young man is dead and a family bereft, but a disappointment that Zimmerman was acquitted by a system that is designed to acquit people where there is reasonable doubt about a criminal accusation. As if these folks, disappointed in the result, could presume to know in advance what the result of the trial should have been. As if the whole purpose of the trial was to proceed to the predetermined result of guilt and the only question was how much time George Zimmerman should serve.
I saw highly intelligent, educated, enlightened people seemingly confuse moral responsibility--that Zimmerman shot a child, whether he reasonably thought he had to or out of callousness, can't be disputed--with legal adjudication of guilt. That the Florida jury could only reach one result, and that failure to reach that result could only be explained by racial prejudice, was taken as a given. That assholes sometimes walk where there is reasonable doubt as to what really happened was given little or no recognition. A bedrock principle of our post-Enlightenment legal system, that crimes are defined as specifically as possible so that citizens know what is illegal, and thus a prosecutor must prove a criminal charge as if he's following a recipe, and even a failure to prove just one, single element beyond all reasonable doubt is fatal to the entire prosecution, was widely ignored. (C.f. Digby's honest acknowledgement, which I greatly appreciate, that the instructions for manslaughter--a verdict she thought would have been appropriate--could justify acquittal.) People I think should know better joined people I don't expect to, to confuse acquittal with innocence when it might mean "not proven" or "whatever George Zimmerman did wrong, if anything, wasn't this".
I saw people repeat equivalencies that, upon inspection, proved to be dubious ones. A popular meme compared Zimmerman to a woman named Marissa Alexander, convicted of several counts of aggravated assault after a Florida judge threw out Ms. Alexander's Stand-Your-Ground defense. This was presented as evidence that an African-American woman could not expect the same results as a Hispanic male in a racist legal system, a proposition which may indeed be true, but the case of a woman who allegedly threatened her husband, went to the garage to retrieve a firearm, came back and then apparently fired several shots in his direction (her defense called them warning shots, it appears the prosecutor called them misses) may not, in fact, be the best evidence of institutional racism in Florida's legal system. Other cases were mentioned that might be examples of why Stand Your Ground laws are bad ideas, of why firearm possession is generally a bad idea, of institutional racism within the legal system in Florida and elsewhere--but few, if any, writers did more than copy'n'paste a link to an opinion piece regarding a news item that might be distinguishable from whatever happened in the Zimmerman case.
Worst of all, I found myself thinking again and again as I scrolled through tweets, updates, comments, retweets, editorials, articles, posts, etc., how much the authors sounded embarrassingly like the other side would have if Zimmerman had been convicted. It was not just disappointment, but the tenor of so much of the disappointment. The knee-jerkiness, reflexive and reactionary. I wondered if my side would sound as leeringly triumphant as the other side did now, if Zimmerman were convicted.
I found myself wondering why so many of my fellow-travelers were picking sides at all. Wasn't our side supposed to be the side of rationality and truth and systematic justice, and not merely the side of a person? I don't mean that we aren't on Trayvon's side as the victim killed too young by an asshole's gun-enabled assholery; I mean that isn't our side supposed to be the one that accepts losses with grace, that takes setbacks as momentary defeats, whose eyes are on a prize that remains glimmering on an eternal horizon however many times the forces of the unenlightened past grab us and kick at our knees? Weren't we supposed to hope, not for a conviction, but for the fairest trial possible, whether or not we liked the defendant? If the trial was fair, aren't we supposed to accede to the result with dignity and grace, accepting it as the right result, even if we find the chief beneficiary fairly despicable? And if the trial wasn't fair, instead of finger-pointing and jeering and sneering about what else did anyone expect from the crackers and from Florida, isn't our side supposed to be the one that offers reasoned analyses and practical criticism, that takes an unfair trial in stride and looks for the remedies that might bring things closer to fairness, and if that isn't possible to at least make future trials fair?
Aren't we the good guys? Because I think we sound like a bunch of assholes right now. Not all of us. There are exceptions. But enough of us to make me feel down on our tribe right now. What's the point if we're no better than the reactionaries and bigots?
We should be ashamed of ourselves.