The Zimmerman Trial
The Zimmerman trial is no O. J. Simpson trial because the characters are nowhere as interesting or as glamorous. The O. J. trial gave you a sense of Brentwood life: restaurants, the layout of houses, the guy who walked his dog every night at eleven, as well as a cast of characters worthy of Damon Runyon. Remember Kato Kaelin, the hanger-on who O. J. thought might be messing with his ex-wife? O. J. was a very jealous person.
The Zimmerman trial, on the other hand, works very hard, as does its coverage, to avoid examining the context of the crime it is dealing with. The bits and pieces about Trayvon Martin’s life that have appeared in the press—that he used marijuana and had some run-ins with the law—have not made their way into the trial, at least not as yet. The young woman with whom he was on his cell phone when Zimmerman approached him appeared as a witness. Rachel Jeantel came across as unattractive, surly and a bit of a dolt. Jonathan Capehart rushed to her defense, saying she was speaking Eubonics and came from a different culture when in fact she was just inarticulate and defensive. In our age of having “candid” discussions of race always promised and never delivered, everyone rushes away from discussing life in Sanford, Florida.
This trial will nonetheless have to do as recent evidence of how little legal reasoning in the criminal justice system has to do with what are ordinary reasoning practices among real people. It is clear from the Zimmerman case that in criminal trials as well lawyers speak a language and present lines of argument unknown in actual discourse. Jurors have to work hard to put themselves in this foreign language and reason in it as best they can. For example, lawyers regularly ask expert witnesses whether a fact, such as a blood stain, is consistent with one or another story line the lawyer is developing. What a peculiar use of the word “consistent”! It does not mean “cause” although that would be the word chosen in common parlance. A blood stain that sprayed such a way might have been caused by this or that blow to the head. Rather, it is a very miserly sense of such an inference. It requires the witness to attest to no more than the fact that the clue does not contradict the story, which is a very different thing entirely. That makes agreeing to the proposition much easier even if it is taken to bleed over into meaning, for all intents and purposes, that one event has not caused another. That a forest fire is consistent with global warming is no proof that the forest fire was caused by global warming. But to stand back and make the general point would seem very far afield to lawyers, a profession which prides itself on the particular.
And yet reference to what are presented as common sense principles of reasoning that are anything but is a staple of legal argument. The defense asked an investigator on the case whether he had not conducted what the defense lawyer called a “confrontation interview” with George Zimmerman. The witness agreed to what he thought was a provisional definition and then withdrew that admission when he saw where the defense attorney was going. The witness said that it wasn’t really all that confrontational. The defense attorney proceeded on as if the demurral had not taken place. The defense attorney said that such interviews were used to probe the person being interviewed to see if the story he told would crack. The interviewee might contradict himself. Never mind that in John Le Carre, the purpose of interviews isn’t to find a contradiction but to convince someone to cooperate. There are many purposes of a conversation other than revealing a contradiction.
The defense attorney then said that if the probing of a confrontation interview does not crack the story then the alternative is to think that the story is correct. It has been tested. But not really. The story had been probed but this was not an experiment where results either confirm or deny the proposition in question. All it proves is that the witness had not cracked, perhaps because he was cooler than the investigator had hoped he would be. The result of failing to crack a story is inconclusive. All it means is that the story hasn’t been cracked, not that it is true. But nobody corrected the attorney’s logic because he can apparently stipulate what he means by logic without fear of contradiction by the opposing counsel or the judge, much less a juror rising in the box and saying that what he said makes no sense except in the sense that it makes sense for the length of time you consider it to make sense.
And it so happened that today, the day after that witness appeared, it was George Zimmerman’s story that was cracked. He had told interviewers that he knew nothing about “Stand Your Ground” and other matters of criminal justice. It happens that he had taken a course in criminal law and was familiar with these terms. He had made out that he was naïve when he wasn’t, which is, to borrow a term, “consistent” with his being a police buff who likes to carry a weapon and carry himself as if he were a police officer.
There are all sorts of ways to explain that away. He misspoke at the interview or was just being unduly modest about his knowledge. He was no expert and that is what he had meant to say. All of these facts, such as whether and how bloodied he was in his confrontation with Trayvon Martin, do not go to the heart of the matter and to suggest that they should bear much weight is another violation of what everyone knows about the logic of narrative.
The key to the case is whether George Zimmerman had been stalking Trayvon Martin and approached near enough and in intimidating enough fashion for Martin to think that it was he who had to defend himself and that he thence got into a struggle with Zimmerman where he might have indeed been gaining the upper hand until Zimmerman shot him at point blank range. The defense attorney suggested to a witness that following a person was not a crime, as if to forestall the line of inquiry I have suggested. That is again to shade a question so as to rob it of its meaning. The question isn’t whether Martin was being followed but whether he was being menaced. Martin is not around to give his side of the story and Zimmerman’s story is clearly self serving and unlikely to be confirmed by any witnesses.
So how is the jury to make up its mind? It can rely on the cell phone call to show Martin’s state of mind, which was one of anxiety, and on Zimmerman conversation with the 911 operator and failing to heed her telling him that he did not need to follow Martin to establish Zimmerman’s state of mind, which was anger at the intruder. That should be enough to give a sense of what probably happened but in such a case you want more certainty than that—or do you? How much certainty is there in the evidence whereby most defendants are acquitted or found guilty? Studies of that sort have not been conducted. There is almost always reasonable doubt because, as in this case, you can treat any of the events as subject to conditions not introduced into evidence and so nothing conclusive can be said. Maybe Zimmerman was just politely inquiring where Martin was going, or maybe he was hostile, or maybe he didn’t say anything. Since there is no record of the matter and Zimmerman will probably not take the stand, the jury will not know and still it must decide guilt or innocence. I just don’t know how. I am glad that I am not on this jury or any other where something more substantial than a slap on the wrist hangs in the balance. The criminal justice system needs to act as if it is certain about its verdicts, but I don’t, especially when I know, as in this case, that at least the defense attorney is out to snooker me.