I submitted this essay for publication as an editorial on July 18, a day before President Obama's powerful and personal remarks about the killing of Travon Martin. It has been taken over by events - the President's powerful recounting of his own experience changes the terrain, hopefully directing our national discussion. So I am posting it now in original form. - GWC
A Free Man
Last year we called for a fair trial for George Zimmerman and warned that the prosecutor had failed to present the matter to a grand jury and seemed to lack the evidence for the second degree murder charge lodged in the shooting death of Trayvon Martin, a seventeen year-old black youth walking home.
Zimmerman declared himself the armed guardian of a gated community. Despite being warned off by the police he stalked a boy carrying only a cell phone who was walking to his father’s house, got in a fight, and then shot Martin dead. Thanks to effective defense and the law of Florida Zimmerman goes without punishment for the confrontation he plainly provoked in his quest to stop “punks” and “a**holes” who “always get away”. Our principal reaction to the verdict in the George Zimmerman case is sadness.
The result shocks and depresses many who, like Attorney General Eric Holder, Times Columnist Chalres Blow, and Cardozo law professor Ekow Yankah see in the verdict an old sad story: that a widespread popular presumption of black male criminality threatens every black man. But the acquittal also directs our attention to the law relied by the six women on the jury - none of whom was black. The defense asserted that Zimmerman had the right to be armed, and to follow Martin, suspicious of the hooded youth who was talking on his cell phone and looking about as he walked home in the dark. A fight ensued and Zimmerman claimed Martin was getting the better of him. Self defense was the claim. In this Zimmerman was aided by the Flroida jury instruction read to the jury:
If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of George Zimmerman and Trayvon Martin. If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether George Zimmerman was justified in the use of deadly force, you should find George Zimmerman not guilty.
Thus the jury learned that if it thought that Zimmerman might have been defending himself it was obligated to acquit - as it did. Absent from the Flrida instruction is the principle with which a New Jersey jury would be instructed
Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her.
The undisputed evidence that Zimmerman identified Martin as a “punk”, etc. of the type that “always get away” might have led the six women on the Zimmerman jury to conclude that his use of force was not justified. That where he had provoked such a confrontation he had a duty to retreat, that his right to use force was limited in those circumstances. We therefore endorse the call of Attorney General Eric Holder who said at his talk at the NAACP national convention which followed shortly on the heels of the Zimmerman acquittal that:
[I]t’s time to question laws that senselessly expand the concept of self-defense and sow dangerous conflict in our neighborhoods. These laws try to fix something that was never broken. There has always been a legal defense for using deadly force if – and the “if” is important – no safe retreat is available. But we must examine laws that take this further by eliminating the common sense and age-old requirement that people who feel threatened have a duty to retreat, outside their home, if they can do so safely.
- George Conk
July 18, 2013