Zimmerman: The Criminal Trial is a Privilege of Whiteness

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.