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    • Hank Fradella

    • July 14, 2013 in Columnists

    Thoughts on the State v. Zimmerman Verdict: Everything That’s Right and Wrong with the U.S. Justice System


    The morning after the jury’s verdict in the trial of George Zimmerman’s for killing Trayvon Martin, I read dozens—perhaps as many as hundreds of FB posts, news articles, and blogs concerning the case.  One of the most infuriating posts I saw praised the justice system and said, “We cannot allow politics, political correctness, and race to enter into justice.”  Rather than responding by posting a “comment” decrying the author’s ignorance, I decided to write this instead. My seemingly paradoxical premise is that the Zimmerman verdict is both right and wrong at the same time.

    First and foremost, a young, unarmed teenaged boy was shot and killed.  And that in and of itself is a tragedy.  Life is precious and the loss of an innocent life is something that should be mourned by all. Trayvon Martin and his family deserve “justice” of a sort that the verdict denied.

    Second—and to respond directly to the first of the uninformed assertions I wish to address, “justice” is inextricably tied to “politics.”  There is no separating the two.  Why?  Well, for one thing, laws are created through a political process.  In other words, no laws get enacted unless the body politic endorses them.  But perhaps more importantly, all of our individual conceptualizations of “justice”—including those who serve as jurors—are based on the political philosophies we have adopted as our own worldviews.  Some see “justice” as equality of outcomes; others deride such views as inherently unjust, instead focusing on “justice” as a quality that protects individual rights and liberties.  Some see “justice” as nothing more than equality of processes—an emphasis on fairness of procedures rather than outcomes; others reject the notion that processes can be “fair” if they lead to unjust outcomes.  And still others see “justice” as serving retribution—either through revenge (“an eye for an eye”) or through the atonement of sin; others reject the notion that it is ever “just” to seek retribution, arguing that “two wrongs don’t make a right.”  My point here is that whatever one considers to be “just” is tied to one’s philosophical beliefs which, in turn, affects one’s beliefs about law and politics.  Any argument, therefore, that politics doesn’t affect the law, its implementation, its enforcement, or its interpretation is misplaced.

    Third, in the words of Dr. Cornell West, “race matters” (1994).  I literally shuddered when I read the posting arguing that we “cannot allow . . . race to enter justice” because race affects nearly every aspect of the justice system’s operations!  Let’s start with looking at the “stand your ground” (SYG) law.  The law itself reflects a certain politic—that it is justifiable to take a life rather than retreat in safety—a perspective adopted primarily in southern and western states.  In contrast, the law in most northern and mid-western states imposes a duty to retreat (if one can do so safely) before the use of deadly force is considered justifiable.  Which approach is the more just? People with diverse political philosophies would undoubtedly answer that question differently.  But empirical data provides an answer to this question with which it is hard to argue.

    SYG laws clearly tilt “the odds in favor of the shooter” (Roman & Downey, 2012, para. 3). In fact, “in SYG states, 13.6% of homicides under these circumstances are found to be justified. In non-SYG states, only 7.2 percent are justified (para 8).  But, Dr. Lisa Wade (2013) asks, the real question is “which homicides?” (para. 3). Wade argues — and the Zimmerman verdict illustrates — that although SYG laws increase the chances of a not-guilty verdict, they do so only when the defendant is accused of killing a Black person.  There is no such increase when the accused kills a White person (Roman & Downey, 2012).  In other words, SYG laws increase “racial bias in legal outcomes” (Wade, 2013, para. 5).  This comes as no surprise to those of us who actually study the justice system (as opposed to those who—thanks to social media, the nature of web-based self-publishing, and the de-professionalization of journalism vis-à-vis punditry—espouse rhetoric that is unsupported by factual evidence).  After all, scholars have argued for years that death penalty laws similarly promote racial bias in legal outcomes as illustrated by the fact that (after controlling for a wide array of nonracial variables such as socio-economic class and mode of killing), Blacks are 3.5 to 8 times more likely than Whites to face trial on a capital crime than Whites are (Baldus, Pulaski, & Woodworth, 1983; Baldus, Woodworth, Zukerman, Wiener, & Broffitt, 1998; Paternoster, 2013; Pierce & Radlet, 2005).  In fact, the U.S. General Accounting Office (1990) conducted a meta-analysis of peer-reviewed research on the death penalty in 1990 and reported that 82% of the studies reviewed found that the races of the victim and accused significantly influenced the likelihood of being charged with capital murder or receiving the death penalty.  Consider, for example that only 27.6% of murder victims in California are White, yet 80% of executions in the state involved defendants convicted of killing Whites (Pierce & Radlet, 2005). And that’s in a supposed “liberal” state; the statistics are starker in the South (Baldus, et al., 1983).

    If one is not persuaded by statistics (even though such empirical proof comes from peer-reviewed studies), all one needs to do is look at how SYG laws have been applied to see that the Zimmerman verdict aligns with Roman and Downey’s findings.  In May 2012, “Marissa Alexander, a 31-year-old mother of three, with a master’s degree and no criminal record” was convicted in Florida for aggravated assault for firing a warning shot at her abusive husband (Halper, 2013, para. 3).  Although no one was hurt, she was convicted and sentenced to 20 years (a sentence, I would argue, is inherently unjust as a disproportionate punishment for the underlying act, regardless of whether it was justified or not).  The SYG law didn’t work for this Black woman—par for the course for SYG laws.  Whites who shoot and kill Blacks successfully use SYG laws in approximately 34% of cases nationwide (a figure that staggeringly increases to 73% in Florida).  In contrast, only 3% of homicides in which Blacks shoot and kill White victims are ruled justifiable under SYG laws (Roman & Downey, 2012). In short, only by ignoring the actual facts (or by being oblivious to them) can someone say that race does not affect the justice system; it does.  End of story.

    Having refuted the baseless claims that neither politics nor race affect the criminal justice system, I want to turn my attention to the Trayvon Martin killing.  Strictly legally speaking (i.e., from a purely procedural justice point of view), the Zimmerman verdict was the right outcome.  The prosecution produced very little evidence to sustain a guilty verdict on any homicide charge in light of the burden of proof of “beyond a reasonable doubt.”  This burden is already a high one, but the concept of “reasonable doubt” is widened (perhaps exponentially so) when the SYG law comes into play.  As law professor Dan Markel (2013) pointed out in a PrawfsBlawg posting the morning after the verdict, “there was nothing provably unlawful about Zimmerman’s following Martin, and there’s also no evidence about who was the aggressor, which is a distinct and critical aspect to whether one forfeits one’s privilege of self-defense” (para. 2).  Of course, if Trayvon Martin had lived to tell his side of the story, the verdict may have been different.  But the fact is that the legal standard of proof demands an acquittal when there is “reason to doubt” the defendant’s guilt.  SYG laws create a wide berth for finding reasons to doubt.  And there’s the real rub with this sad case.  The outcome is “fair” and “just” if one views justice from a process standpoint; it’s procedural justice in action in exactly the same way that the O.J. Simpson acquittals on double homicide charges were procedurally just. But this narrow view of justice does not satisfy those of us who politics cause us to believe in broader justice principles.

    As David Schraub (2013) poignantly stated today, “Lay people may not know the formal definition of ‘reasonable doubt,’ but as lawyers we certainly should know that the formal definition often bears little in common with what actually gets people convicted. The problem with citing our highest ideals is that it seems only certain people with certain victims get access to them” (para. 3).  Our criminal justice system places procedural justice—fair processes—above all other philosophical forms of justice, primarily because it is the only conceptualization of justice that the judicial process can come close to insuring (at least most of the time).  But that type of “justice” seems woefully unsatisfying for those of us who seek social justice.  We yearn for a justice system that is not racially-biased (since the one we have clearly is).  And we yearn for outcomes that are “just” insofar as we hope for verdicts that lead to punishment for a man who shoots an unarmed teenager whom he profiled and followed on account of his race.


    Baldus, D. C., Pulaski, C., & Woodworth, G. (1983). Comparative review of death sentences: An empirical study of the Georgia experience.  Journal of Criminal Law and Criminology, 74(3), 661-753.

    Baldus, D. C., Woodworth, G., Zukerman, D., Wiener, N. A., & Broffitt, B. (1998).  Race discrimination and the death penalty in the post-Furman era: An empirical and legal overview with preliminary findings from Philadelphia.  Cornell Law Review, 83, 1638-1770.

    Halper, K. (2013, June 11).  “Stand your ground” law helps white defendants a lot more than black ones.  Salon.  Retrieved from http://www.salon.com/2013/06/11/stand_your_ground_law_helps_white_defendants_a_lot_more_than_black_ones/

    • WOW, I am sharing this on my wall on FB. Such a fair and balanced approach. I hope they proceed with either a civil rights case or civil case where it is easier to prove.What are you feelings about this idea.? Thanks for sharing your thoughts.

    • The amount of incomplete information in this post is way too much to cover. Did you follow the Zimmerman case? How about the court case itself. You know they rushed the case forward and skipped a grand jury right? That the defense waived their right to a stand your ground hearing and opted instead to employ self defense as their sole legal defense? This was not a stand your ground case. As far as the Marissa Alexander case, did you look into the details of that case? She was prosecuted by Angela Corey, the same prosecutor who prosecuted Zimmerman. Alexander’s case involved plenty that the mainstream news media is not telling the public since their mission seems to be promoting racial division and inciting rage instead of objectively informing. There was testimony that conflicted with physical evidence, a plea deal that was turned down, insufficient evidence to allow stand your ground as a defense, and a direct disobeying of a judge when she later went and attacked the man she’s saying she had no choice but to shoot “towards”. Trusting stats that push superficial arguments about much more complicated issues is something people should be wary of. Too much to cover there as well, but let me just say, because, oh, 75% of the people in a hospital are sick, does that make it right to claim that the hospital made them sick? The amount of personal accountability removed from the analysis by lumping people into groups is not helpful at all. With that process, you could claim that people with brown hair are more likely to do this or red hair more likely to do that, because of their hair color. As far as race goes, the news media made this case about race from the start, NBC editing that 911 Zimmerman phone call and the new term “white Hispanic”. Have you noticed the lack of race mentioned in the original reports of the Alexander case, both people involved were African so the mainstream news media felt no reason to label people by race in that case, at least not until the more recent stories, when their intent was to push an agenda. I mean no disrespect with my post, I respect your opinion, but I just think that including some information that was left out would be beneficial to everyone trying to make up their mind about the way our world works. Have a good day and thanks for taking the time to post your two cents to begin with.

      • Valerie

      • July 15, 2013 at 9:48 am
      • Reply

      The last paragraph is very informative. I never stopped to think that there are different forms of justice within the law. Procedural justice seems to be the one that will “insure” that trials are as free from social bias as possible. Thank you for stating this in a way that makes sense.

    • in my post above, near the end, regarding the Alexander case, I meant to say “… the Alexander case, both people involved were African ***American*** so…”

    • “White Hispanic” isn’t exactly new. On forms asking for race, there have been two Hispanic entries for a long time: white and black. More info https://en.wikipedia.org/wiki/Definitions_of_whiteness_in_the_United_States#Hispanic_Americans

      “The amount of personal accountability removed from the analysis by lumping people into groups is not helpful at all.” — Untrue. We lump people into groups so that we can reveal bias. Yes, the individuals accountability is removed since we’re dealing with problems of this group or that group. But the grouping is helpful for understanding how individuals from that group may be punished more severely because of their membership in that group.

    • it wasn’t a form classifying Zimmerman as white hispanic, it was the mainstream news media, because he was half white and half peruvian. Does our news media label President Obama the first White African American President? This same news media refused to widely publicize that Trayvon called him a creepy ass cracker. They just had to find a way to keep spinning their own version of racism. The truth is that both are simply Americans, in my opinion its only those with alterior motives that feel the urgent need to force race as a factor into this case.

      • Dr. Hakn Fradella

      • July 15, 2013 at 1:56 pm
      • Reply

      I think there’s a little confusion here about the “Stand Your Ground” (SYG) law that stems from a conflation of substantive and procedural law. Substantively, SYG is nothing more than a definitional part of the law of self-defense. Procedurally (and depending on the jurisdiction), SYG affects the way in which a case might be litigated.

      Unless one is the initial aggressor, a person is generally privileged to use a reasonable amount of force when necessary to prevent an imminent attack upon himself/herself from unlawful force. One may even use deadly force in self-defense to defend against what the actor reasonably perceives as necessary to protect against imminent death or serious bodily harm. But in approximately half the states, the law prohibits the use of deadly force if there is non-deadly alternative known as “retreat.” In these so-called retreat states, one must retreat, provided it can be accomplished safely, before using deadly force to defend oneself from unlawful, imminent attack. (Note that no state imposes a duty to retreat from one’s home before using deadly force in self-defense since one’s home is one’s “castle”; the duty to retreat applies only outside the home.) The remaining states, of which Florida is one, impose no duty to retreat. Rather, one may “stand one’s ground” without having to retreat before using deadly force in self-defense (assuming all of the other requirements of self-defense are satisfied).

      The SYG law operated in three ways in the Zimmerman case. First, it most certainly influenced police and prosecutors when they decided to arrest and charge Zimmerman. That is a procedural requirement of the Florida SYG law, since its applicability needs to be considered in the charging phase.

      Second—and also procedurally—the defense could have asked the trial court judge to dismiss the criminal charges against Zimmerman under the Florida SYG law. Zimmerman’s defense team waived such a pretrial immunity hearing. That was a tactical decision. Such a hearing would have allowed a judge (and not a jury) to free Zimmerman without subjecting him to trial. But it also would have required Zimmerman’s defense team to divulge the details of his case. So, the defense team opted not to have such a hearing and instead present their case at a jury trial. But just because there was no SYG hearing does not mean this was not a SYG case; it was—in terms of the substantive law the jury was told to apply, which is my third point—the one laypersons seem to miss when they assert that the Zimmerman case did not involve the SYG law simply because a pretrial hearing on possible immunity under the law was waived.

      In a non-SYG jurisdiction, Zimmerman would have been under a legal duty to retreat if he was able to do so before using deadly force (even if all of the other requirements for using deadly force were satisfied). But the Florida SYG law excused him from that obligation. Hence, the
      jury was never instructed that had to convict Zimmerman if they found he could have avoided using deadly force by retreating from the encounter. This is a matter of substantive, not procedural criminal law.

      • Valerie

      • July 15, 2013 at 2:59 pm
      • Reply

      Great explanation. Thanks for the clarification.

      • davidlacy

      • July 15, 2013 at 3:04 pm
      • Reply

      Thank you for sharing your expert analysis.

      • Jaxin

      • July 15, 2013 at 8:01 pm
      • Reply

      Good point, but how does one flat on their back retreat?

      • Dr. Hank Fradella

      • July 16, 2013 at 1:45 pm
      • Reply

      Well, one could use physical force to throw the person off. One might warn the other person, “I am armed; get off of me or I’ll shoot.” (In fact, giving such a warning is required by law in some retreat jurisdictions when the particular circumstances prevent retreat.) One might even fire a warning shot into the sky, although that approach didn’t work for Marissa Alexander.

      I think the more important question is to ask how did it come to pass that one person (who is armed and pursuing an unarmed person) gets “pinned down” by the other? In other words, who was the “initial aggressor?” The “who started it” question is a key element to the law of self-defense.

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