Commentary Magazine


George Zimmerman and Justice

To the Editor:

In “Conservatives and the Trayvon Martin Case” [June], David French attacks a straw-man argument when he writes:

Contra John Lott, citizens do not have a blanket right to “investigate a strange person in [their] neighborhood.” No such broad right exists in the Constitution, relevant statutes, or common law.

Zimmerman’s alleged right to investigate is certainly limited by Martin’s right to walk in public places free from threats or threatening behavior.

Mr. French might just as well have stated that there is no broad right to eat ice cream or watch ESPN; that no such right is enshrined in the Constitution, statute, or common law; and that it is certainly limited by the prohibition against stealing other people’s ice cream or television set. Was Lott or anyone else asserting that Zimmerman had a right to harass, threaten, or attack Martin? As far as I know, no one has made such a claim.

Rather, Lott’s argument is in response to the claim that the Zimmerman investigation was . . . what? Reckless? Unlawful? That it undermined his claim of self-defense? Is it Mr. French’s position that such investigation by a private citizen is any of these things? If so, let him say it plainly.

This, by the way, is part and parcel of the inference that Zimmerman had overstepped the bounds of recklessness by not following the injunction of a police dispatcher to remain in his car. First, the recording of the police dispatcher did not constitute an order, but rather was advisory. Second, and more important, had it been phrased as an order, it does not seem to me that it had any legal authority. Zimmerman had the right to walk the streets of Sanford and vigilantly observe the goings on in public places.

As it happened, this turned out badly for all concerned. But, in my view, such neighborhood patrolling is on the whole a good thing and not to be condemned.

Lloyd Cohen
George Mason University School of Law

_____________

To the Editor:

Someone reading David French’s article might suppose that it was Rush Limbaugh and George Will who wanted to take the judgment of George Zimmerman away from the law and hand it to the mob. If there were no danger of Zimmerman being railroaded by the threat of riots, if this were an ordinary and disinterested investigation, there would be no need for conservative pundits to point out the evidence suggesting his innocence. The precept fi at justitia ruat caelum (“Let justice be done though the heavens may fall”) is not so easily upheld under the present circumstances. There is widespread objection against the heavens’ falling, and a tendency of those in authority to heed the loudest and most angry voices. I would agree that the objective of conservatives should not be Zimmerman’s exoneration, per se. The objective should be a fair inquiry, unhampered by intimidation—one that might or might not result in exoneration.

Certainly, those conducting such an inquiry would have to improve upon the cavalier depiction of evidence and law that Mr. French offers. He knows that on the fateful night, Trayvon Martin was the law-abiding citizen and George Zimmerman the lawless one. Now there seems to be some evidence that Martin had Zimmerman pinned to the ground and was pummeling him senseless when Zimmerman shot him. I wouldn’t dream of asserting such a final conclusion on the basis of news reports, but Zimmerman’s injuries, the wetness on his back, and the bruises on Martin’s knuckles are at least consistent with that interpretation.

Mr. French, however, confers immunity on Martin because he was naturally frightened and alarmed by Zimmerman’s tailing him. Being frightened or alarmed, of course, is not a legal justification for assaulting someone who hasn’t attacked you any more than it would be a justification for shooting someone. There is also Mr. French’s slightly tendentious suggestion that Zimmerman shot Martin because he “lost a fist fight.” You can die losing a fist fight, if the “fist fight” consists of a large man punching your head as you lie helpless.

Mr. French’s indictment of Zimmerman rests upon the assertion that he had no right to “investigate” Martin under “the Constitution, relevant statutes, or common law.” That is an odd little formulation for someone described as a “constitutional lawyer.” I wasn’t aware that the Constitution specifically granted my right to walk to the corner and mail a letter. The Constitution defines certain powers of government and a number of things that may not be done. As to Florida statutes and common law, it would be easier to tell whether Mr. French is right had he cited a statute or a case, or had he made clear what he means by “investigate.” Does he mean standing outside Martin’s window with a camcorder, or walking a hundred yards behind him on the public streets?

I see that Mr. French was a judge advocate. In that light, I am startled by his complaint that the original decision not to charge Zimmerman was “based not on conclusive evidence of Zimmerman’s innocence but on a subjective assessment that Zimmerman’s self-defense claim would be difficult to overcome.” There is this thing called the “presumption of innocence,” as well as the prosecution’s burden to prove guilt beyond a reasonable doubt. Prosecutors are required to determine whether a case is provable by objective perusal of the evidence before going forward. They are ethically bound to determine whether there is proof showing culpability beyond a reasonable doubt before they prosecute, whether Mr. French wants to trust them with that decision or not.

Every felony arrest cannot result in a grand jury presentation. In a serious presentation, furthermore, a grand jury is led by the prosecutor toward indictment. There are instances in which politically sensitive cases are dumped in the grand jury to provide cover when the desired result is “no true bill” (no indictment). Those instances, however, do not exemplify prosecutorial integrity.

Peter Nichols
Former Manhattan Assistant District Attorney
Morristown, New Jersey

_____________

David French writes:

The correspondents who wrote to question aspects of my article on the conservative reaction to the Trayvon Martin case have largely focused on the core factual issues, and I agree with much of what they say. I do, however, have a few comments.

First, the intent of my article was not to convict Zimmerman but to push back against an emerging conservative rush to exonerate. References to Tawana Brawley and Duke lacrosse were especially wrongheaded when—as I said in the article—the one unassailable fact of the Martin case was that a young, unarmed man is dead. I am glad to see that the correspondents shunned this rhetoric and engaged so directly with the facts and law. This, by itself, was a heartening development.

Second, in the rush to exonerate, conservatives were whitewashing behavior by Zimmerman that was, at best, dangerous and wrongheaded. While the correspondents largely avoid this trap, they do still err in dismissing the potential impropriety of Zimmerman’s “investigation” of Martin. As I said in my article, an alleged right to “investigate” a young man walking in your neighborhood is of course outweighed by that young man’s right to be free of threats and threatening behavior. The prosecutor has alleged that Zimmerman initiated the fateful, nighttime confrontation with Martin. Zimmerman disputes that allegation. That’s why we have jury trials.

Third, I must confess that I have more than a little skepticism for near absolute prosecutorial discretion and have a higher view of the grand jury process than does Peter Nichols. At the very least, even incremental additional oversight is preferable to resting such power entirely in the hands of local officials. As a final note, the hysteria surrounding the case has calmed considerably. Partisans on both sides have reason to feel sobered. Zimmerman’s injuries were worse than initially reported, but at his bond hearing he demonstrated that he is capable of lying under oath—a fact that could hurt him in a case that could well turn on his own credibility.

And I agree with correspondents who question many of the actions of the special prosecutor. Her attempts to silence criticism suggest she is alarmingly thin-skinned and even unfamiliar with what her proper role as an officer of the court and representative of the people should be.

Barring additional, unforeseen developments, we’re left with a tough, tragic case, in which neither a “guilty” nor a “not guilty” verdict would be an obvious miscarriage of justice.




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