Most of the trial of George Zimmerman (GZ) for the second-degree murder of Trayvon Martin (TM) overlapped with my vacation. I’m a trial junkie (yes, I watched large portions of the Casey Anthony and Jodi Arias trials, and am not ashamed to admit it), and much to my companions’ dismay, I spent quite a bit of my vacation time streaming the trial on my laptop or iPhone. I had paid very little attention to the case prior to trial but, like anyone with a pulse who consumes any media whatsoever, I became passively aware of the basic “facts” of the case: White wannabe cop GZ calls 911 to report “This guy looks like he’s up to no good. He looks black.” Shoots TM dead and emerges without a scratch on him. Stand Your Ground. #OhFlorida.
Watching (about 80% of) the trial, then, revealed several things to me, much as it did to others. GZ, it turns out, did not emerge unscathed from his encounter with TM, and in any event, the legal relevance of his actual injuries is not what many (mostly non-lawyers) believe it to be (me, commenting at Prawfs). The trial had precisely nothing to do with Stand Your Ground or any quirk of Florida law, and everything to do with the utterly banal legal rule (me, commenting at CoOp) that someone who reasonably believes that he or she is in imminent danger of great bodily injury or death may use deadly force — juror B37’s remarks notwithstanding. (I’m inclined to support repeal of the SYG laws that exist in some 20 states, but I’m not convinced that pretending that SYG had much or anything to do with this particular case is constructive; indeed, I fear using the Zimmerman case as the symbol of SYG undermines the credibility of those fighting to repeal such laws.) Even a provocation instruction to the jury likely wouldn’t have altered the outcome (me, commenting at Prawfs). GZ is white on his father’s side but his mother and uncle are first-generation immigrants from Peru with (relatively) dark skin for whom English is not their first language (and one of GZ’s great grandparents is apparently of African descent). GZ’s jury was not “all-white”. And so on.
I have been struck by the frequency with which many commenting on this case, including the public on social media — but also journalists, scholars, and lawyers, all of whom should prize fidelity to facts — have made bald, confident assertions, often without citing any evidence, and sometimes in direct contradiction to the available evidence. This is all the more startling in light of the egregious editing of Zimmerman’s call to police the night of the shooting made early on in the reporting of the case by NBC, which is the subject of a defamation lawsuit by Zimmerman.
An almost equally egregious error continues to be made by those who cite, in support of the proposition that GZ is clearly a racist, the “fact” that he racially profiled a seven-year-old black boy, calling 911 to report the child’s suspicious behavior. When George Mason Law Prof. David Bernstein read this claim repeated by a fellow law prof on a listserv (see part VI), it struck him as so implausible an action for any non-insane individual to have taken that he spent one minute with Google and discovered what should not be surprising to anyone who hasn’t already committed to a narrative of that night and decided that they have GZ’s number: it’s just flat wrong (more below). Shortly after reading Bernstein’s post, I myself encountered a law professor perpetuating the same myth, this time in a serious, edited publication, The New Republic (emphasis in original):
. . . Zimmerman was an edgy basket case with a gun who had called 911 46 times in 15 months, once to report the suspicious activities of a seven year old black boy.
As Bernstein notes, the confusion seems to be the result of carelessness by The Daily Beast, followed by reliance by other journalists, scholars, and lawyers on The Daily Beast rather than on primary sources readily available on the Internet. [Update 7/25/13: see this post for TNR's non-correction correction of this error. Update 7/26/13: The sentence has now been fully corrected and the errors and subsequent edits acknowledged by TNR.]
In post-trial discussions, most lawyers seem to agree that acquittal was the legally correct decision, given the evidence presented. However, many continue to wonder why the prosecution of GZ was so poor. The most obvious explanation, and one I have a lot of sympathy for, is that the factual case — especially for second-degree murder, but only marginally less so for manslaughter — was so weak. Why be surprised when a dog of a case barks? Still, at several points, prosecutors could have made better decisions. Why didn’t they? On CNN, Mark Geragos repeatedly suggested (to much eye-rolling from Jeffrey Toobin) that prosecutors “threw the case.” I find it fairly implausible that the prosecution both (1) egregiously overcharged and may have withheld exculpatory evidence (me, commenting at Prawfs) and (2) threw the case. Perhaps if the parties doing the overcharging and those actually trying the case were operating entirely independently this would be possible, but what I’ve read suggests that Corey and de la Rionda are personally close.
A theory that is less sensational (indeed, banal) but more plausible is that the prosecutors, too, bought into the early narrative of the case — of a “white” bigot who targeted TM only because he was black, and killed him “not because he had to, but because he wanted to,” as prosecutors repeatedly put it during trial — that it led them to be overconfident and to assume that jurors would see what they saw. If you adopt that narrative, as the media did, and as many who “learned” about this case only through its filter, it becomes easy to see (to take just one example) the inconsistencies in GZ’s multiple tellings of events (which not only juror B37 but also most lawyers have described as fairly trivial) as “a string of lies” rather than as illustrative of how we know memory works (I wondered, in fact, why the defense didn’t bring a memory expert in to testify). This phenomenon is perhaps exacerbated by something like self-selection bias: the original prosecutor declined to bring charges, and a special prosecutor willing to charge and try the case had to be brought in. In addition, the prosecutor’s decision to forgo the grand jury indictment process may have been a missed opportunity to obtain valuable feedback about potential weaknesses in the state’s case.
In any case, now that most legal academics seem to agree that an acquittal was the correct decision as a matter of routine law, much of the focus, as reflected by President Obama’s comments (transcript) about the Zimmerman case this afternoon, has turned to the role that racial profiling may have played in the events of February 26, 2012. And that conversation, in turn, has focused on the allegedly racialized pattern of calls that GZ made to police over a number of years. At Prawfs, for example, various commenters discussed how many of GZ’s calls were made to report black males as opposed to people of other races, and whether the ratio would matter. Given the tendency of commentary about this case to contain factual errors and exaggerations, including among the most egregious one based on these calls (GZ’s alleged racial profiling of a 7-year-old black child), I thought it might be constructive to try to lay out the available evidence as the basis for conversation.
I myself don’t have a strong position on what GZ’s calls suggest about his view of black men. (So the post’s title is more of an invitation to readers to opine rather than a promise of things to come from me.) I do offer, after the list of his calls, some tentative thoughts about distinctions we might want to make among the calls in determining what the relevant ratio of black-to-non-black calls should be, and I’ll be very interested in what others have to say. I confess that I think these data, however we interrogate them, will give only limited insight into GZ’s habits (and even less insight into his attitudes and beliefs). As you’ll see below, we don’t know, for instance, the race/ethnicity of all of the individuals GZ reported. Nor do we know how many black (and white and Hispanic) males GZ encountered or observed in his neighborhood but did not report as suspicious. Still, given that many have drawn conclusions from GZ’s police call history and will continue to do so, better to do so from accurate factual predicates.
My primary purpose in this post, then, is to place the facts on this particular issue in the law prof blog domain so that conclusions that are drawn about GZ’s racial profiling — whatever those conclusions are — are based on the facts, as best as we can know them. (This post is limited to the phone logs that are receiving the bulk of attention and seem most relevant to the shooting. I have omitted other “facts” that have been alluded to in the media that may pertain to GZ’s views of race — e.g., racist comments about Mexicans he allegedly made on MySpace and, on the other hand, his apparent agitation to discipline the son of a white police officer who beat a black homeless man, and the Sanford Police Department GZ says covered it up.)
Who Gets To Talk About Race?
And because I am offering some tentative thoughts on a matter related to race, a brief digression is in order. Over at Prawfs, Brando Simeo Starkey expressed skepticism about whether one commenter on the Zimmerman trial was “well-versed on issues of race.” I am not a fan of the “you can’t discuss X unless you’ve experienced it” form of argument. But Brando’s objection is more nuanced than that. I think he’s broadly right that people tend to participate differently in conversations about subjects they perceive as technical (biology, in his example) as compared to subjects that seem, but perhaps only superficially, equally accessible to all (we all have a race).
So, to head off similar objections, for those who deem them relevant, let me offer a few biographical details. Before doing so, let me be very clear that no experiences I have ever had, or ever will have, substitute for or even approximate what black men experience every day over their entire lives in the U.S. But, since Brando discussed “put[ting] in the work to understand something from an intellectual standpoint,” I’ll say that I have a humanities Ph.D. (in addition to my law degree) and that for seven years I was in a relationship with a black man. You don’t get out of either of those experiences without getting an education in race. I experienced life as part of an interracial couple in rural New Hampshire and in Virginia and we survived the O.J. verdict. In grad school, I spent plenty of time reading about race, gender, and class (and heteronormativity), I taught units on affirmative action and capital punishment, and UVa’s Studies in Women and Gender department even awarded me its Zora Neale Hurston award for best graduate student essay across the university, which then became the basis for a portion of my dissertation.
In the year between my Ph.D. and starting law school, I spent a year working on an edited volume about DNA and the criminal justice system. I spent my 1L summer at DOJ’s Criminal Appellate section. Charles Ogletree taught me criminal law, the late great Bill Stuntz taught me advanced criminal procedure, and Carol Steiker taught me about capital punishment (needless to say, none of these individuals should be seen as endorsing any part of this post). I clerked on the 11th Circuit, which has a crime-heavy docket. In short, I know how important race and prosecutorial discretion are in the criminal justice system.
And if I’m reaching way back, when I was in junior high, my friend and I were routinely followed around a drug store we frequented, whose owner was refreshingly honest in telling us that since people of our age group were, in his experience, the most likely to shoplift, we were not to be trusted. That made me very angry and hurt. Again, though, I can literally only imagine what it would be like to live that kind of experience every day and never grow out of it.
List of Zimmerman’s Calls to Police
With that said, below is the list of calls; my commentary, such as it is, follows in the next section.
This chronological list of calls to both 911 and the non-emergency number is my rendering of the police records of GZ’s calls (link is to original source material). I have translated police codes and lingo to normal English as best I can. Whenever race/ethnicity is mentioned in the call log, I have included it here (any omissions are unintentional; if you discover any, please let me know so that I can correct this post).
A note about the number of calls GZ made. I’ve listed 43 incidents over about 7.5 years. (In a few cases, GZ called the operator back to provide additional information or to cancel the report, and that generated perhaps something closer to 46 calls, but I have chosen to focus on incidents.) On several occasions, I have seen vastly different claims about both the total number of calls GZ made and the time span over which he made them (e.g., “Zimmerman…called 911 46 times in 15 months” and “Zimmerman called…over 150 times”). I have not seen evidence of any additional calls made by GZ to either 911 or the non-emergency number, and all of the calls introduced into evidence by the state at his trial came from the 43 incidents I catalog here. But if there are other calls that should be included in the calculus, I will be happy to learn about them and update this post.
- 8/12/04: Reports male driving pick-up without car seat
- 9/20/04: Neighbor’s garage door open
- 8/20/04: Reports white male walking in the road carrying a paper bag, presumably drinking
- 3/17/05: Pothole
- 4/27/05: Neighbor’s garage door open
- 9/21/05: Stray dog
- 9/23/05: Couldn’t reach his sister by phone
- 11/4/06: Reports pick-up driving around apartment complex for last five minutes “driving real slow looking at all the vehicles in the complex and blasting music”
- 6/24/07: Two Hispanic males and one white male loitering near pool; officer spoke to them and determined were locked out of their vehicle
- 10/14/07: Possible intentional damage to his car tire; thinks he knows who did it
- 11/25/07: Reports disturbance involving his ex-roommate, a white male
- 1/5/09: Fire alarm going off
- 3/12/09: Requests patrol outside his home for a week while he’s away
- 5/4/09: Reports blue Audi; unclear why
- 6/10/09: Fire alarm going off
- 6/16/09: People jumping over the fence and going into the pool area, playing basketball, trashing the bathroom; reports make and model of car
- 8/21/09: Disturbance involving landlord over rent and foreclosure
- 8/26/09: Male driving without headlights
- 9/7/09: Pothole
- 9/22/09: Speed bike doing wheelies, speeding and weaving in and out of traffic
- 10/23/09: Pitbull
- 11/21/09: Referring to unclear past event, GZ says subject is in front of his residence
- 11/3/09: White male driver in county vehicle cutting people off
- 1/1/10: White male having loud verbal dispute with female in back of pick-up
- 1/12/10: Neighbor’s garage door open, “very unlike his neighbor”
- 2/27/10: Reports residence in complex where multiple vehicles are constantly coming to the residence; unknown subjects run out to the vehicles and run back inside; the subjects are always outside with the garage open and hang out all night, an ongoing problem; unknown who lives at that address; GZ advises there are constantly different people
- 4/28/10: Vehicle obstructing road
- 6/12/10: At least 50 subjects GZ doesn’t think live at complex are in the clubhouse & pool areas having a party, causing road obstructions
- 6/26/10: Approximately 50 subjects are having a loud party and blocking the street
- 10/2/10: Female driver yelling at elderly passengers, unknown if altercation is physical, vehicle was rocking back and forth
- 11/8/10: Trash in roadway, appears to contain glass
- 11/26/10: Motion alarm tripped while GZ is out of town
- 3/18/11: Pitbull in his garage
- 4/22/11: Black male 7-9 years old walking alone unsupervised on busy street; GZ “concerned for well being”
- 5/27/11: GZ’s alarm tripped while he’s at work
- 8/3/11: Black male on foot at back entrance of neighborhood last seen wearing white tank top and black shorts; GZ believes he’s involved in recent burglaries in neighborhood; GZ says he matches the description that was given to police
- 8/6/11: Two black male teens near back gate of neighborhood, one wearing black tank top and black shorts, 2nd wearing black t-shirt and jeans; GZ says they’re the ones who have been burglarizing the area and predicts subjects will run into the subdivision next to his complex
- 9/23/11: Open garage door; GZ notes he’s part of neighborhood watch and is concerned about recent burglaries in area; had a neighborhood watch meeting previous night with Sgt. Herx who advised him to report anything suspicious
- 10/1/11: Two black males approx 20-30 years old appear to be loitering in their car at gate of community at 1 am; GZ doesn’t recognize subjects or vehicle and is concerned due to recent burglaries in the area
- 12/10/11: White male with shaved head at club house in black Mercedes was hired by GZ to serve food at an event but then GZ replaced him and subject seemed upset and wants to be paid; GZ has never met him in person; GZ’s wife will meet with police when they arrive
- 1/29/12: Five or six kids, ages 4-11 years, running and playing in the street and running out in front of cars
- 2/2/12: Black male wearing black leather jacket, black hat, and printed PJ pants keeps going to the residence of a white male; unclear what he’s doing; subject was gone when police arrived
- 2/26/12 [TRAYVON MARTIN]: Black male, late teens, dark gray hoodie, jeans or sweatpants, walking around area; GZ concerned about recent burglaries
Commentary and Further Context
So what do GZ’s calls say about his views about black men? Many reports concerned open garage doors, potholes, and other inanimate objects. Others involved dogs. Others involved people — sometimes individuals and sometimes large groups — of unknown or undescribed race/ethnicity.
Of the twelve incidents in which race was given, six, including the incident reporting TM, involved black males (#34, 36, 37, 39, 42, 43), 5 involved white males (#3, 11, 23, 24, 40), and one involved two Hispanic males and one white male (#9). We could just count eyeballs (or skin color) and draw conclusions about whether GZ is a racial profiler on that basis. But as in most things, context matters. Which way does the context cut in this case? Probably in both directions.
Of the six incidents involving black males, one, recall, is the one in which GZ reports that he is concerned about the well being of a black male child who is wandering a busy street without adult supervision. So we’re talking about five incidents involving black males GZ found suspicious, and one involving a black male he wanted to help.
On the other hand, of the six incidents involving white males and Hispanic males, we may want to distinguish those incidents where GZ knew or at least had prior contact with the “suspect” (#11, the incident involving his ex-roommate, and #40, the one involving the food server he fired but had never met) from those where he reported total strangers (the remaining four). This leaves us with five reports involving black males GZ found suspicious and four reports involving white and/or Hispanic males.
We may also, however, wish to distinguish reports of men whom GZ found suspicious because they seemed to be loitering or who looked out of place from those who displayed more objectively problematic behavior. So we might exclude the incident involving the white male presumed drunkard (#3), the white male driver cutting people off (#23), and the white male having a loud dispute with a woman (#24). That yields five black male incidents to only the one incident involving two loitering Hispanics and one white (#9).
Of those five black male incidents, however, all took place between August 3, 2011 (the night of a home invasion in the complex), and February 26, 2012 (the night of TM’s death). Here’s where what we mean by “racial profiling” becomes important. I hope those who have thoughts about that particular issue will weigh in. In what follows, I’ve added information about the ongoing crime in GZ’s neighborhood, which he references in his calls to police.
As GZ’s neighbor Olivia Beltaran, the victim of the home invasion, described it at trial (and at the time to police), on August 3, two late-teenaged black males approached her home, and then returned 30 minutes later, entered it through an open window, and stole some items while she hid in a bedroom with her baby and a pair of scissors and called 911. Apparently GZ’s wife also saw the suspects enter or leave Beltaran’s home and provided a description to police. Police recovered some latent prints “that represent the suspects jumping over a fence between Calabrea Springs Cove” (p. 2 of link) and GZ’s complex as well as latent prints from inside Beltaran’s home, and sent them for possible matching. The evening of the burglary, GZ called the non-emergency number (#36) to report someone who matched Beltaran’s description, but he was gone by the time police arrived. The same thing occurred three days later: another call from GZ, with the police arriving too late (#37).
TalkLeft characterizes these calls as follows (emphasis added):
Of the five calls the state introduced as supposed support for its theory that they showed Zimmerman’s state of mind as a profiler and wannabe cop [note that those 5 calls only overlap with the 5 I have identified involving black males], two of the calls pertained to the Beltaran home invasion, in which he didn’t profile anyone. He reported seeing someone who matched the description the homeowner (and his wife) had initially given police. The person he reported not only turned out to be the perpetrator, but the perpetrator was only able to be charged after his latent prints were found on the wall he had jumped over from Retreat at Twin Lakes to the neighboring complex. Burgess didn't just commit one burglary, but several, and he was found in possession of some of the stolen property when he was arrested. He had a long record as a juvenile and he lived in the neighborhood. . . . That leaves a total of 2 calls prior to February 26 in which he reported African American males as suspicious.
In his recent column for The Atlantic discussing New York City’s “Stop and Frisk” program, Ta-Nehisi Coates similarly distinguishes racial profiling from properly taking account of race for law enforcement ends:
It is very important to understand that no one is asking the NYPD to ‘ignore race.’ If an officer is looking for an [sic] specific suspect, no one would ask that the NYPD not include race as part of the description. But ‘Stop And Frisk’ is not concerned with specific suspects, but with a broad class of people who are observed making ‘furtive movements.’
I’ll be interested to hear other views, but it seems that there is at least a plausible case for considering the two calls that GZ made in the immediate aftermath of the Beltaran home invasion as something other than the kind of objectionable racial profiling we want never to occur.
To conclude, here are details of GZ’s last three calls (the two noted by TalkLeft plus GZ’s fateful call reporting the young black man who would turn out to be Trayvon Martin). It is much less certain whether these reflect GZ’s attempts to help police apprehend particular suspects.
On August 29, police asked Beltaran if she had any additional information that could help them, but all she could add was that her husband thought he had seen a black male matching her description of the suspect walking in their back yard one week prior to the burglary. The case was put on inactive status that day.
On September 23, GZ reported an open garage door, noting that at a recent neighborhood watch meeting, Sgt. Herx advised him to report anything suspicious.
On October 1, GZ reported that two black males, approximately 20-30 years old, appeared to be loitering in their car at the gate of the community at 1 a.m.; he reported that he didn’t recognize them or their vehicle and was concerned due to the recent burglaries in the neighborhood (#39). Later in October, Belatran successfully identifies one of the suspected burglars, Emmanuel Burgess, from a photo lineup. Burgess, who was out on conditional juvenile parole and living with his parents in GZ’s and Belatran’s complex, had apparently become a suspect when police matched two of the latent palm prints to him in September. Charges were then filed in October. According to trial testimony, Burgess was only arrested in December, however, and then released as a minor.
On February 2, 2012, GZ reported that a black male repeatedly approached the residence of a white male neighbor. Per the audio recording of the call, which was played at trial, this was the home of Frank Taafe, who was out of town at the time. GZ reported that the individual kept walking up to the house and away from it and then back up to it again, as if casing it (#42).
On February 6, Tatiana Deamicis reported that her residence in the complex had been burglarized. Two witnesses (Arnold Arms and Iain Beard) told police that they saw a black male, mid-20s, 5’8”, approximately 180 lbs., standing next to Deamicis’s residence (but not entering or leaving it). Beard believed that the individual had stolen his bike (previously reported to police). On February 7, Arms and Beard called police to report three black males and one white male on bicycles “in a cut through area of the complex (a grass area where [the complex] backs up to Colonial Village Apartments),” one of whom (who would turn out to be Burgess) they believed to be the person they saw with a possible connection to the February 6 burglary. Police responded and obtained permission to search the backpack of one of Burgess’s companions (Ransburg), and discovered two laptop computers. A third companion claimed that he had purchased the one of the laptops the previous night. Officers determined, however, that the serial number matched the computer stolen from Deamicis’s residence the prior day. While the officers were attempting to handcuff the four suspects, one fled, but was apprehended shortly thereafter in the Colonial Village Apartments. Burgess’s juvenile probation was terminated and he was arrested. He was ultimately sentenced by Judge Nelson (who also presided over Zimmerman’s trial) to 5 years in prison. It is unclear whether the other suspects remained in custody or were released after February 7, and it is unclear whether they were tried or convicted for anything.)
On February 26, GZ reported a suspicious black male walking close to the windows and doors of homes and wandering somewhat aimlessly. This would turn out to be Trayvon Martin:
GZ: “Hey we’ve had some break-ins in my neighborhood, and there's a real suspicious guy, uh, it's Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he's up to no good, or he's on drugs or something. It's raining and he's just walking around, looking about.”
Dispatcher: “OK, and this guy — is he black, white or Hispanic?”
Zimmerman: “He looks black.”
Dispatcher: “Did you see what he was wearing?”
Zimmerman: “Yeah. A dark hoodie, like a grey hoodie, and either jeans or sweatpants and white tennis shoes. He's here now, he was just staring.”
Read the rest of the transcript of the call here.
Update: I meant to note that the tendency to see facts through various lenses — whether their own experiences, their scholarly areas of expertise, or an ideology — does not make people evil. It makes them human. Without swallowing postmodernism hook, line, and sinker, in some very real sense it’s impossible not to approach events through one or more lenses. Indeed, “intellectual conflicts of interests” (as I vaguely group varying tendencies to ignore or distort fact) has become a scholarly fascination of mine, and that is one very strong lens through which I admittedly view commentary about the Zimmerman trial. So we all do it, and sometimes those lenses are valuable and help us see things that others don't (see, e.g., the wise Latina). But sometimes, of course, they obfuscate. The important thing for everyone, but especially for journalists, lawyers, and scholars, is to strive for as much intellectual honesty, open-mindedness to reconsidering one's position, and a hermeneutics of charity when hearing others's views as is consistent with the fact of human finitude and fallibility (told you I have a humanities Ph.D.). Kudos to several law profs who have done just this in the context of some very difficult and painful conversations, including Tamar Birkhead.