Protests over the George Zimmerman verdict continue — another was held in downtown San Jose on Sunday. On Friday, President Obama helped keep the the story in the news with a statement on the case that spoke directly to his experience as an African American. (Watch that video here.)
Last week, on KQED Radio’s Forum show, Oakland civil rights attorney John Burris, active in many high-profile Bay Area cases; and former San Francisco prosecutor Jim Hammer answered questions about the case. Taken from that conversation …
On whether the U.S. Department of Justice will take up the prosecution of George Zimmerman on civil rights charges
John Burris said he had sent about 10 cases over the course of his career to the Department of Justice for prosecution, including the Oscar Grant shooting.
“To be honest with you, they always open an investigation,” Burris said. “But they never complete the investigation. So I don’t think it’s likely.”
Burris said that the NAACP and Al Sharpton advocating for federal involvement might put pressure on the DOJ, but given the facts of the case, prosecution was unlikely.
“Because [Zimmerman's] not a police officer, then it’s a question of if it’s a hate crime, and in order for that to be a hate crime, you have to have animus that demonstrates that this was done as a consequence of hate.
“Initially, there was an issue about whether or not he’d made some kind of racially derogatory comment, and that caused the Justice Department to be concerned. But once that wasn’t there, then it seems to me that you don’t have the kind of animus that you need. Plus, it has to be a specific intent crime. So you almost have a higher standard than we have here, in beyond a reasonable doubt. ”
Burris said that in a federal criminal civil rights investigation, Zimmerman could still invoke his Fifth Amendment rights and would not be forced to take the stand.
What about a civil case by the family?
Burris said Martin’s family could file a civil case, suing Zimmerman for money damages. In this kind of lawsuit, the burden of proof is much less strenuous; the family could win if only a preponderance of the evidence is judged to be on their side. Zimmerman could also be required to give a deposition and take the stand.
On the message from the verdict
A caller from Oakland expressed concern about the ultimate message that the verdict sent.
“In my opinion, because what has happened, you have families now that are going to be living in fear,” the caller said. “[We have] a disabled son that we’re trying to teach independence to and he’ll be 12. And my daughter says to me, ‘I know you were thinking about allowing him to ride the bus home after school, and I don’t think you can do that anymore because it’s a possibility that he could leave home and never ever come back because he can be accosted by anyone and shot and killed.’ So the Florida courts have created a climate of fear.”
Jim Hammer said he shared the caller’s distress.
“The outcome of this is that George Zimmerman walks out, gets his gun back — there’s no reason, he hasn’t committed a crime — and could get in his van and patrol neighborhoods again. Its scary, its outrageous,” Hammer said.
Hammer said he taught at a black high school in Watts, and that he “hung out for a year with Trayvon Martins, you know, 17-year-old African-American kids, the most wonderful kids. But when they hit that street, they’re seen by many people as suspects and criminals, and all the rest of it. Over half of them went to college, but people don’t see them that way, so it’s a horrifying thought what young black men are thinking after this verdict.”
Was Stand Your Ground relevant to the case?
Zimmerman’s defense did not invoke Florida’s controversial stand-your-ground Law. But, as Hammer and others have pointed out, it influenced the initial investigation of the shooting.
Hammer said that “if you listen to [the investigator's] testimony, [he said] ‘well in light of Florida’s law, I believe this guy, so I let him walk home that night.'”
(A New York Times investigation on the mishandling of the investigation by local police said the stand-your-ground law “became the framework within which the police and prosecutors had to work after Mr. Zimmerman claimed that Mr. Martin confronted and pounced on him.”)
Burris pointed out that the jury instructions cited stand your ground. “So therefore the jury … could then use that in terms of an application,” he said.
You can read the jury instructions here. They read, in part:
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.
On the question of race
Speaking about the initial investigation, Hammer said,”If you do the race reversal for a moment … if it had been an African-American man shooting a 17-year-old freckled faced white kid, would the cops have sent the African-American home and said have a good night? I don’t know. My gut says probably not. I can’t say that’s false but to say race plays no role in this is a bit naive I think.”
On the legal case
Burris said he was “dumbfounded” that the prosecution did not invoke the Florida statute that invalidates a self-defense justification if the person claiming it is the aggressor. (One prosecutor, in analyzing the case, told the Bradenton Herald that Zimmerman’s pursuit of the unarmed Martin could be considered a threatened use of force that could have defined him legally that way.)
Hammer agreed. “What I thought was wrong here, was that you had the stand-your-ground argument there, but there should have been another instruction that said, ‘if you are the aggressor, then you cannot avail yourself of the stand-your-ground law.’ I think that might have been more helpful to the jury because then that would have given them some basis to consider that if George Zimmerman in fact touched, approached, aggravated, and started this, then he couldn’t say I got self-defense without showing that he had tried to retreat.”
Hammer said that there is too much burden on the prosecution in cases like these. “Part of the problem is the prosecution has to prove a negative …. He can literally sit back and say, ‘prove I’m a liar.’ And that’s almost an insurmountable hill to climb.”
Hammer suggested that considering that how the fight started is still an unknown, the jury’s not-guilty finding was legally correct. “By not knowing how the fight started, all we are left with is the end result, and the end result you get is … what you see in terms of George Zimmerman’s injuries and a witness that sort of suggests that George Zimmerman was losing a fight. And in that sense, the jury verdict is probably consistent.”
Burris said there was only circumstantial evidence to disprove the defense’s claim that the shooting was self-defense, which proved to be a high hurdle to overcome.
He also said that the prosecution should have argued that Martin was actually the person standing his ground. “After all, he was the one being pursued,” he said. “That never was argued in any kind of way by the prosecution. The fact that he himself was standing his ground, and what he had a right to do. And so, that’s what made it more challenging for the prosecution, because they didn’t take advantage of the opportunity that they had to make arguments, to make Trayvon Martin a more sympathetic person, and they allowed the defense to define Trayvon Martin in ways that were hurtful and easy for the jury to accept.”
On six jurors versus 12
The Martin case had just six jurors. Hammer said that benefits the prosecution. “It’s certainly easier to get six to agree,” he said. “The danger of it … is when you get such a small group, the chance of not getting a diverse jury goes up exponentially. Out of 12, you have a good chance of getting an African-American or two. And again, once that jury was set, I think the die was somewhat cast, and the chance of people not having faith in the verdict went through the roof.”
On whether the case was prosecuted competently
Burris said he thought the prosecution saw that it was a tough case to win, but that public outrage and political pressure had forced their hand. “They kind of went through the motions,” he said. “I didn’t see the aggressive prosecution that I would have expected.”
On untrained individuals confronting suspects
Hammer said things might have gone differently if a police officer had been the one who confronted Martin instead of Zimmerman. “I went through 2,000 hours of training,” he said. “I was a police commissioner in San Francisco and supervised, among other commissioners, 2,000 police officers. Police officers have many other means at their disposal just short of deadly force. They also wear a uniform … [A police officer] would have said, ‘son what are you doing here’ and hopefully it would have gone on its way.
“The idea that we have untrained [people] … muttering these sort of angry tirades [about] the police, driving around with guns and getting out of their cars is madness. I’m a big fan of well-trained police officers, and if we need more security, we should hire more of them. But we ought to get guns out of the hand of untrained police officers driving around, trying to be their own police officers.”
Listen to the whole show here…