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Justice, Trayvon Martin, Race, and Ethnicity

The Trayvon Martin case is being widely condemned as an instance where the criminal justice system failed. The system did not fail. The criminal justice system worked as it is intended to work in the Martin case. A reasonable jury based on the evidence and the law could find a reasonable doubt and acquit on murder and manslaughter.

I am a civil rights attorney. I also served as an Assistant United States Attorney in the Southern District of New York under John Martin and Rudy Giuliani, prosecuting complex federal criminal cases. I represented an innocent man on death row whose conviction and sentence were set aside and the charges dropped. I helped release the late Black Panther, Geronimo Pratt, from prison after 27 years for a crime he did not commit, working with Johnnie Cochran and others.

An acquittal in a criminal case does not mean the system failed. An acquittal can mean the system worked. "Better that ten guilty persons escape than that one innocent suffer," according to English jurist William Blackstone. Defendants are presumed innocent, and the jury must find guilt beyond a reasonable doubt.

That does not mean race and ethnicity are not involved in the Martin incident. There are lessons to be learned about positive steps we can take to promote justice for all regardless of race, color, or national origin.

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The Legal Setting

The criminal justice system is riddled with disparities based on race, color, or national origin. The U.S. Supreme Court, for example, held 5-4 that the racially discriminatory imposition of the death penalty does not violate the Constitution in McCleskey v. Kemp in 1987. A person accused of killing a white victim is four times more likely to be sentenced to death than a person accused of killing a black victim, according to a meticulous study by David Baldus. This suggests that juries value the lives of black victims less than the lives of white victims. Justice Lewis F. Powell Jr., who wrote the opinion, was asked after he retired whether there was any vote he would have changed. "Yes," he said. "McCleskey v. Kemp." "I have come to think that capital punishment should be abolished." The death penalty continues to be applied in a concededly discriminatory manner. The death penalty should be abolished.

A reasonable jury could conclude that the evidence left a reasonable doubt in the Martin case. The fight "was a muddle, fodder for reasonable doubt. It remained unclear who had started it, who screamed for help, who threw the first punch ... at what point Mr. Zimmerman drew his gun," as reviewed in the New York Times. Photographs showed Mr. Zimmerman's head bloodied and battered. The prosecution changed its story, arguing at the beginning of the trial that Mr. Zimmerman was on top when he fired the fatal shot, and arguing at the end of the trial that Mr. Martin was on top, or that it did not matter who was on top. Prosecutorial flip flops are the stuff of reasonable doubt. The chief police investigator, Chris Serino, told the jury that he believed Mr. Zimmerman, despite contradictions in his statements. Typically, police testimony boosts the state's case. Here, the chief investigator undermined the prosecution before the jury. The police testimony that Mr. Zimmerman was telling the truth was irrelevant and prejudicial to the prosecution. Indeed, the court struck the testimony the next day. But why did the court admit the evidence in the first place? And how could the jury ignore that evidence once they heard it? No jury could unring that bell. Mr. Zimmerman's family testified that it was he screaming for help on the tape, and Mr. Martin's family testified that it was Mr. Martin. Nobody knows. The Times notes that the police and crime scene technicians made mistakes, including mishandling DNA evidence. The defense might have won the case at the jury selection stage, with six women jurors and no African American. The jury could properly conclude there was a reasonable doubt based on the evidence, the law, and the charges filed.

Experienced prosecutors and defense attorneys agree the verdict was appropriate based on reasonable doubt and the charges filed, as reported in the Los Angeles Times.

A federal civil rights case based on the theory that Mr. Zimmerman intended to kill Mr. Martin because he was black would be difficult to prove beyond a reasonable doubt, judging by what is publicly known about the case.

There were no eyewitnesses except for the two participants, and Mr. Martin is dead. The defendant did not take the stand. Even where there is a videotape, what the "facts" are can be difficult to assess. A criminal trial is not just about "what really happened," but about the values at stake.

This is illustrated by the Rodney King beating. Four police officers beat Mr. King while some twenty other officers stood by and did nothing to stop the illegal beating. George Holliday captured the beating on videotape from across the street. Many who see the tape with their own eyes think it shows a slam dunk case of police abuse. The culpability of the officers who beat Mr. King nevertheless remains ambiguous in the eyes of the law. The Simi Valley jury acquitted the four officers of criminal charges. Los Angeles reacted with multicultural riots and rebellion. The U.S. Justice Department charged the four officers with criminal civil rights violations. The jury in the federal case convicted two officers, and acquitted the other two. There was no violence in response to those verdicts. The trial judge sentenced the two convicted officers to 30 months in prison. The federal court of appeals affirmed the convictions, but reversed the sentences on the grounds that they were too lenient, in violation of federal sentencing guidelines. The U.S. Supreme Court affirmed the appellate court in part and reversed in part, and sent the case back to the trial court for resentencing. The trial judge reimposed the same sentences.

John Oliver on The Daily Show

The Context

Commentators have for the most part ignored Mr. Zimmerman's background. Mr. Martin reportedly called his assailant "a 'creepy-ass cracker.'" The New York Times routinely reports that Mr. Zimmerman's mother is Peruvian. How is that relevant? "Latinos have acknowledged that he's half-Peruvian and that makes him Latino. But no one is going out there to say, 'He's one of us,' just like Muslims don't go out and say, 'Osama Bin Laden was one of us,'" said Gustavo Arellano, editor in chief of OC Weekly and the syndicated columnist behind ¡Ask a Mexican!

The National Council of la Raza (NCLR) has joined other civil rights organizations in calling for action by the Justice Department. "While we respect the legal process and the jury's decision, we are deeply disappointed and saddened by this verdict," said Janet Murguía, President and CEO of NCLR. "However, we believe that it is still possible to achieve some measure of justice for Trayvon Martin and his family, so we are joining with our brothers and sisters in the Black community in calling on the Department of Justice to weigh in more forcefully on the matter."

President Barack Obama gave his first major talk on race since before being elected in 2008 when he spoke about the Martin case after the acquittal. The President based his talk on the experience of African Americans, and on his personal experience. "Trayvon Martin could have been me 35 years ago." The President talked about disparities for African Americans in the death penalty, in drug enforcement, in stop and frisk, in being the victims of crimes, in committing crimes. "[Th]at context is being denied," according to the President.

The President did not address similar disparities for other people, including Latinos. Perhaps this is justified because it is important to focus for a moment on African-American men and boys in the wake of the Martin case, and the President's comments based on his personal experience are a watershed for the African-American community in particular. However, it has taken five years for Mr. Obama to address race, and there is no telling if he will address race, color, or national origin again as President.

Without acknowledging discrimination beyond the context of African Americans, it is harder to fix the problems. In 2012, for example, New Yorkers were stopped by the police 532,911 times. 
473,644 people stopped were innocent (89%) -- there were no arrests or charges filed.
 284,229 were black (55%). 
165,140 were Latino (32%).
 50,366 were white (10%). With deportations at record highs -- 410,000 in 2012, according to the Washington Post -- Latinos are disproportionately suspected of being undocumented. Indeed, the Supreme Court has recognized that the Arizona anti-immigrant statute might impermissibly target Latinos. Latinos who were U.S. citizens were deported in the 1930s. Stops and frisks are particularly frightening for non-U.S. citizens because any arrests, including arrests that do not lead to a conviction and/or improper arrests, can make it more difficult to adjust their immigration status or to become a citizen of the United States, according to the Center for Constitutional Rights. NCLR's Janet Murguía said the concerns of undocumented immigrants were affecting the Latino community, making people feel besieged the way African-Americans felt. Undocumented workers are vulnerable to wage discrimination, sexual attack in the workplace, even theft when they cash their paychecks, since many do not have bank accounts.

Can a Latino stand his ground if stopped on suspicion of being undocumented?

Increasingly after 9/11, racial profiling in stop and frisks also affects Arabs, Muslims, Middle Easterners and South Asians.

The Opportunity Agenda wisely calls for the following reforms.

End Racial and Ethnic Profiling. Clear rules outlawing racial and ethnic profiling, combined with training for officers, clear guidelines and accountability, have been shown to reduce bias, protect public safety and promote equal justice under law.

Repeal Stand Your Ground and other "Shoot First" Laws. Those laws affect individual behavior and police and prosecutorial decision making, as well as jury verdicts.

Build Understanding and Support. Differing reactions to the Martin case are just the most recent reminder that people in the U.S. tend to think and talk past each other when it comes to questions of racial or ethnic discrimination. Many people do not understand current forms of discrimination like institutional inequity, unjustified discriminatory impacts, and implicit bias. This makes it harder to address, for example, environmental justice, health justice, equitable urban planning, and equal access to public resources. The Opportunity Agenda's Ten Lessons for Talking About Racial [and Ethnic] Equity in the Age of Obama can help to bridge that divide.
In addition, Congress should enact progressive immigration reform with a clear path to citizenship. I am an immigrant.

To form a more perfect union, we need to include all of us in learning the lessons of the Trayvon Martin case.

President Obama on Trayvon Martin

Top: The family of Trayvon Martin. Photo: David Shankbone/Flickr/Creative Commons.

About the Author

I am a civil rights attorney. Fighting for the simple joys of playing in the park and school field for children of color and low income children is the hardest work I have ever done.
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