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.)