By Tom Toles (June 16, 2013)

Boston Review July 15, 2013

By Simon Waxman

At the rally for Trayvon Martin in Boston last night, one speaker earned a raucous applause for sneering at the jury that set George Zimmerman free on Saturday. Was that panel of six women, five of them white, the speaker asked, a jury of Martin’s peers? He chuckled and shook his head, and the 500 or so onlookers clapped, booed, and raised hands in agreement.

The impulse to blame the nearly all-white jury is understandable. American history is full of such juries rendering injustice. And there is no question that the result in the Zimmerman trial was injustice. The course of events is beyond doubt: Zimmerman, fearing for the security of his neighborhood with a young black man at large, pursued Trayvon Martin, got in a fight with him, and then shot Martin when his quarry got the better of him.

Thus it has now become an article of faith among many: had the skin tones been reversed, had George Zimmerman been black and Trayvon Martin white, Zimmerman would surely have been found guilty.

This speculation is impossible to test, but it’s probably wrong.

For one thing, the jury was not the source of the injustice. It made a rational decision based on Florida law and the facts it was allowed to consider. One would like to believe that in the speculative scenario, black George Zimmerman would have been subject to the same laws, trial rules, and deliberative process.

But, as long as we are engaged in speculation, we should consider the more likely and therefore more instructive scenario: had George Zimmerman been black, there would never have been a trial.

Had Zimmerman been black, he would have been arrested immediately and charged within days. Because Zimmerman is white — those who wish to suggest he is Latino and therefore the racial “overtones” of the case are exaggerated simply do not understand the difference between race and ethnicity or how race is constructed in America — he was detained for five hours and released without charge or further investigation. Only after six weeks of protests, mostly by black citizens, was he charged, after which he turned himself in.

Recall that in August 2012, Zimmerman claimed to be indigent. His supporters bought his high-priced legal team, but had Zimmerman been typical of the black men who pass through our criminal justice system, as opposed to a cause célèbre, he would have been declared indigent as requested and assigned an underpaid, overworked public defender. After having been charged, black Zimmerman would have languished in prison for several weeks before his lawyer came to him to discuss his case for a half hour or so. This would have precipitated a lengthy process of delays. The lawyer would have sought continuances in order to gain time to make a few more half-hour visits and prepare a case.

Black, indigent Zimmerman would have been denied bail, or else his bail would have been set so high that he would never have been able to pay it. While white Zimmerman prepared his trial from the comfort of his home, black Zimmerman would have spent more than a year behind bars awaiting trial.

But that trial would not have come. As time droned on, the prosecutor — herself overworked, underpaid, and hoping to clear cases by any possible means — would have offered a plea bargain. Black Zimmerman’s lawyer, with a hundred or more defendants vying for his attention, would have encouraged black Zimmerman to take the plea, accept a relatively lenient sentence, and serve his time.

And black Zimmerman would have taken that plea, as 95 percent of American defendants do. A black man knows that, faced with a second-degree murder charge in the killing of a white teenager, he doesn’t stand a chance at trial.

But because the real Zimmerman is white and had money for a private legal team dedicated exclusively to his needs, he was afforded the full range of advantages that a criminal trial can offer a defendant. He was able, for instance, to benefit from the rules of exclusion relevant to the manslaughter charge. These rules apparently narrowed the scope of admissible facts to those of the physical altercation itself, which meant that Zimmerman’s pursuit of Martin, his 46 police emergency calls, and his hateful words recorded by the 9-1-1 dispatcher on the night he killed Martin were all out of bounds as far as the jury was concerned. These rules saved George Zimmerman from a jail sentence.

Black Zimmerman would not likely have been in a position to benefit from these rules. And herein lies most glaringly the racism of the system of law enforcement and criminal justice, which essentially guaranteed that for Trayvon Martin, like so many black men, justice could not be served.

The Constitution tells us that everyone has a right to a speedy trial, with competent counsel, before a jury of his peers. But in practice, indigent black men almost never receive such a trial and the protections it offers.

In the case of black Zimmerman, a jury of six klansmen would have meant as much as a jury of six NAACP Image Award winners because that jury would never have been empaneled. If you are a black man charged with a crime, you had better be O.J. Simpson because otherwise you probably will not have your day in court. You will not have a chance to get away with it, as George Zimmerman did.

Update: This story was corrected to reflect the fact that the jury in the Zimmerman trial was not entirely white, but included, according to news reports, one Latina woman. We apologize for the error.

NY Times, July 16, 2013

By Ekow N. Yankah

The Trayvon Martin verdict is frustrating, fracturing, angering and predictable. More than anything, for many of us, it is exhausting. Exhausting because nothing could bring back our lost child, exhausting because the verdict, which should have felt shocking, arrived with the inevitability that black Americans know too well when criminal law announces that they are worth less than other Americans.

Lawyers on both sides argued repeatedly that this case was never about race, but only whether prosecutors proved beyond a reasonable doubt that George Zimmerman was not simply defending himself when he shot Mr. Martin. And, indeed, race was only whispered in the incomplete invocation that Mr. Zimmerman had “profiled” Mr. Martin. But what this case reveals in its overall shape is precisely what the law is unable to see in its narrow focus on the details.

The anger felt by so many African-Americans speaks to the simplest of truths: that race and law cannot be cleanly separated. We are tired of hearing that race is a conversation for another day. We are tired of pretending that “reasonable doubt” is not, in every sense of the word, colored.

Every step Mr. Martin took toward the end of his too-short life was defined by his race. I do not have to believe that Mr. Zimmerman is a hate-filled racist to recognize that he would probably not even have noticed Mr. Martin if he had been a casually dressed white teenager.

But because Mr. Martin was one of those “punks” who “always get away,” as Mr. Zimmerman characterized him in a call to the police, Mr. Zimmerman felt he was justified in following him. After all, a young black man matched the criminal descriptions, not just in local police reports, but in those most firmly lodged in Mr. Zimmerman’s imagination.

Whether the law judges Trayvon Martin’s behavior to be reasonable is also deeply colored by race. Imagine that a militant black man, with a history of race-based suspicion and a loaded gun, followed an unarmed white teenager around his neighborhood. The young man is scared, and runs through the streets trying to get away. Unable to elude his black stalker and, perhaps, feeling cornered, he finally holds his ground — only to be shot at point-blank range after a confrontation.

Would we throw up our hands, unable to conclude what really happened? Would we struggle to find a reasonable doubt about whether the shooter acted in self-defense? A young, white Trayvon Martin would unquestionably be said to have behaved reasonably, while it is unimaginable that a militant, black George Zimmerman would not be viewed as the legal aggressor, and thus guilty of at least manslaughter.

This is about more than one case. Our reasons for presuming, profiling and acting are always deeply racialized, and the Zimmerman trial, in ignoring that, left those reasons unexplored and unrefuted.

What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.

We know this, yet every time a case like this offers a chance for the country to tackle the evil of racial discrimination in our criminal law, courts have deliberately silenced our ability to expose it. The Supreme Court has held that even if your race is what makes your actions suspicious to the police, their suspicions are reasonable so long as an officer can later construct a race-neutral narrative.

Likewise, our death penalty cases have long presaged the Zimmerman verdict, exposing how racial disparities, which make a white life more valuable, do not undermine the constitutionality of the death sentence. And even the most casual observer recognizes the painful racial disparities in our prison population — the new Jim Crow, in the account of the legal scholar Michelle Alexander. Our prisons are full of young, black men for whom guilty beyond a reasonable doubt was easy enough to reach.

There is no quick answer for the historical use of our criminal law to reinforce and then punish social stereotypes. But pretending that reasonable doubt is a value-free clinical term, as so many people did so readily in the Zimmerman case, only insulates injustice in plain sight.

Without an honest jurisprudence that is brave enough to tackle the way race infuses our criminal law, Trayvon Martin’s voice will be silenced again.

What would such a jurisprudence look like? The Supreme Court could hold, for example, that the unjustified use of race by the police in determining “reasonable suspicion” constituted an unreasonable stop, tainting captured evidence. Likewise, in the same way we have started to attack racial disparities in other areas of criminal law, we could consider it a violation of someone’s constitutional rights if, controlling for all else, his race was what determined whether the state executed him.

I can imagine a jurisprudence that at least begins to use racial disparities as a tool to question the constitutionality of criminal punishment. And above all, I can imagine a jurisprudence that does not pretend, as lawyers for both sides (but no one else) did in the Zimmerman case, that doubts have no color.

Ekow N. Yankah a professor at the Benjamin N. Cardozo School of Law at Yeshiva University.