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Trayvon Martin, National Cliches, and German Smugness

I was quoted a few times in this Legal Tribune story (g) about the Zimmerman case, which makes the point that, if you consider all the facts surrounding the shooting of Trayvon Martin, a German court would likely have acquitted George Zimmerman as well. After analyzing the case in some depth, the author speculates about why the German media has been so consistently wrong about the case (my translation):

Where does the mistaken impression come from that American self-defense law is so much more permissive than German law? For one thing, ignorance of the foreign legal system, combined with national cliches which assign Americans the role of pistol-wielding cowboys. The circumstances of the case certainly lent themselves to this interpretation at first glance.

No, that's not a quote from me, but I could hardly agree more. Coverage of the Zimmerman case in much of the mainstream German media has been marked by truly epic incompetence, smugness, and East-German style moralizing tendentiousness.* So many German journalists desperately wanted to believe that an all-white jury set Zimmerman free after he gunned down a young black man for no reason. To this end, they have resolutely ignored anything that complicates that narrative (why let the facts get in the way of a good story?), implicitly reassuring their readers that in Germany, the best of all possible worlds, such a horrible scandal could never take place.

Much of the coverage has featured in-depth interviews with protesters venting their opinions about the case, as if that were any way to shed more light than heat. Whenever I see German news teams broadcasting completely uncritical interviews with American protesters, I always feel a temptation to go to Occupy Frankfurt, interview some of the ragamuffins and leftist extremists camping out there, and broadcast them on German television until every German viewer is convinced their country is a fascist police state with massive unemployment.

Now, before this post gets any more ranty (but that was pretty fun), I'll just make a few points before moving on from this topic forever:

  • The jury in the Zimmerman case was not all-white. There was one member who was non-white. Although there is no Constitutional requirement that juries mirror the local ethnic composition, this one did. 1 out of the 6 jurors was non-white and Seminole County, Florida, is 78% white. The jury was all-female, which is a bit unusual, but I can't imagine what difference that would have made. Zimmerman himself, of course, is half-Peruvian, and would be identified by most Americans as 'Hispanic', for what that's worth. Only 8% of German judges (g), by the way, have foreign origins, and the number who have dark skin is no doubt miniscule.
  • The jury deliberated 16 hours on the case, was divided over the issue of possible manslaughter liability for a time, but then came to the unanimous conclusion that Zimmerman acted in self-defense. To reach that conclusion, they had to find that George Zimmerman, at the time he fired the gun, had a reasonable fear of great bodily harm or death.
  • Although we will never know exactly what happened and Martin isn't here to tell his side of the story, Zimmerman consistently stated that he followed Martin for a time, that Martin turned around and came back toward Zimmerman and confronted him, and began the physical fight. Martin got the upper hand, forced Zimmerman to the ground, punched him in the face, and hit his head repeatedly against the concrete sidewalk. At this time, Zimmerman fired.
  • Zimmerman had called the police, with the call ending at 7:15 pm, and knew the police were on their way to find him, which they did at 7:17 pm. If you were planning to gun down an unarmed person for no reason or just out of spite or racism, would you (1) call the police beforehand, and (2) carry through on the plan knowing the police were literally seconds away?
  • Physical evidence corroborated Zimmerman's story. He had injuries on his face and head consistent with the story, he had grass stains on the back of his clothes, and the gun was fired from the position he said it was fired. His basic account of the confrontation remained stable through several explanations to the police, which is why the police believed him. The jury, after hearing hours and hours of evidence during a full formal trial on the merits, also found his story about the physical confrontation credible, otherwise it's difficult to see how they would have reached the verdict they did.
  • The 'stand your ground' law in Florida played a role in the case, but it wasn't decisive. The defense never invoked the 'stand your ground law' during the trial. They did not have to -- their theory from the very beginning was that, at the time of the shooting, Zimmerman was on the ground, being repeatedly hit by Martin. Since there was no chance of his escaping anyway, the question of whether he should have tried to do so was moot. It is true that the phrase 'stand his ground' appeared in the jury instructions and one juror has said they discussed the idea. But there's no evidence the law played a significant role. Zimmerman would have been acquitted by the jury even if Florida didn't have a stand your ground law.

Zimmerman would probably have also been acquitted under German law. German law also has a 'stand-your-ground' principle, called (in various wordings) 'Recht muss dem Unrecht nicht weichen' -- someone who is not doing anything illegal is not obliged to retreat in the face of an illegal attack. The response to the threat must be proportional, but the judge will take into account the means available to the attacked person when judging proportionality. You cannot immediately respond to a punch with a knife, for example, but if you are punched repeatedly and you have a reasonable fear of severe bodily harm or death and cannot adequately defend yourself with your fists, you may then use the knife. German law also allows you to use a gun in these circumstances. If you are being physically attacked, have a reasonable fear of severe injury or death, and the gun is the only realistic means you have to stop the attack, you may use it to defend yourself. You are ordinarily expected to yell a warning or fire a warning shot, but the law will not require you to do these things if the circumstances don't allow for it. As does American law, German law realizes that a physical fight is a chaotic event and that you cannot expect people to exercise careful, detached judgment in the middle of one.

Of course, spinning out a counterfactual about how a case would have played out in another legal system is only a mental exercise, but I think that Zimmerman would have had a good chance under German law. He would have argued that (1) he was doing nothing illegal at the time of the incident (following someone isn't a crime, nor -- for the purposes of this hypothetical only -- is owning a legal, licensed concealed weapon); (2) Martin started the physical confrontation; (3) Martin got the upper hand, forced him to the ground, and punched him and hit his head against a concrete sidewalk; (4) he was unable to defend himself with his fists against the continued beating and feared serious injury or death; (5) was not in a position to yell a warning or fire a warning shot, since he was lying on the ground being punched; and (6) fired the gun in self-defense.

Of course, it should go without saying that the death of Trayvon Martin, like the senseless death of any 17-year-old, is a tragedy (in the genuine sense). Martin was where he had a right to be and was doing nothing wrong when some guy began to follow him for no reason he could discern, quite possibly just because he was black. It appears Martin may have overreacted out of fear or anger, but it's hard not to sympathize with him. If Zimmerman hadn't been carrying a gun, it's likely nobody would have died. But still, this case is simply not a convincing symbol for the very real, very problematic racial and class disparities in the U.S. criminal justice system. In fact, it's not even a symbol of how 'different' American justice is from German, or European justice. The fact that so many (not all, but many) German journalists have tried to make these points by using a selective and distorted version of the case is yet another serious black mark on the German media.

* I know this comparison is unfair. It's unfair, that is, to East German media. I once read a content analysis of East and West German school textbooks from the 1980s which found that the West German textbooks presented a more biased, one-sided, and negative portrayal of American society than East German textbooks. Let that sink in for a minute. (I'll work on getting the cite for this soon).

Comments

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james rytting

Your right, I did go beyond the evidence and speculated, and I prefer an acquittal under these types of circumstances given the evidence, although my sentiments are likely influenced by my belief that the consequences of conviction, for anyone, are systematically inhumane, because of the length and conditions of incarceration in the U.S. Nonetheless, I think what Zimmerman did was unjustifiable.

Zimmerman shot an unarmed kid during or after a fisticuff. There's no evidence the kid was going after Z's gun, not even evidence leaked to the media. The conclusion seems pretty clear: during the struggle or afterwards, Z decided to pull his gun and then shot the kid for slugging him. That's it; that's premeditation, just like deciding to go for a knife and then stabbing someone during a fisticuff (which among amateurs involves several aimless swings followed by equally clumsy wrasslin, having seen and been in a few of these tussles as a kid). As for having black relatives and friends, that is not a prophylactic to prejudices and misconceptions, a point easily proven, by analogy, to the persistence of misogyny.

Andrew

James, you're engaging in a lot of mind-reading here. You confidently assert that Zimmerman harassed Martin 'because of his race' that his conduct was 'premeditated', and, by implication, that he thinks of all black people as 'animals'. Simply asserting these things doesn't prove them, not by a long shot. Don't you think that if there had been solid, convincing evidence that Zimmerman harbored racist beliefs, the prosecution wouldn't have trumpeted it everywhere?

Zimmerman had black relatives and took a black woman to his high-school prom. I certainly don't know whether that proves he's not a racist; I am not privy to his inmost thoughts, and neither are you.

As for the premeditated part, how can you square that with the fact that he called for the police and knew they would soon arrive before following Martin? It's the odd premeditated murderer who calls the police to the scene of the crime before he acts, and then waits there for them to arrive.

The injuries to Zimmerman were, of course, superficial. But you know as well as I that self-defense is a hugely fact-based legal determination, which means the mere fact that Martin was smaller than Zimmerman is not dispositive, nor is the fact that his wounds turned out to be superficial. The jury determined that, at the moment he fired, he had a reasonable fear of injury. That seems like a conclusion well within the range of reasonable outcomes. Even if all the jurors were females, a fact which is relevant...how? Is it because women are less capable of evaluating evidence than men, because they're less likely to have been involved in fist-fights?

James rytting

Zimmerman harassed a kid, smaller than he was, because of his race. He was getting the worst of a fist fight so he shot the kid. His life was not in danger, nor was he in danger of serious bodily injury, I. E. the type that might justify killing. I'd like to think only someone who has never been in a fisticuff would hype the bumps on the noggin Zimmerman suffered into mortal danger, which is likely why the defense was thrilled to have an all woman jury. However, it's not just that, but the belief that black people are terrifyingly dangerous animals particularly when aroused that explains why zimmermans premeditated conduct is not seen as an obvious, homicidal overreaction.

Jurist

The description of the german "Notwehr"-Law is not entirely correct. In fact the response to the threat has NOT to be proportional under german law. Only if there are several different means which could end the attack with certainty, you have to pick the mildest out of those. If there is reasonable doubt you can properly defend yourself with your bare hands, you may defend yourself with a knife without taking some punches before. However, if circumstances allow, you are obliged to warn the attacker before using (possibly) deadly force.

If there are no other means to defend yourself, you may even use deadly force to protect your private property even if there is not threat of you being injured. This right is only restricted in the most extreme cases under the concept of "Gebotenheit". A classic example for this is the man in a wheelchair, shooting cherry-thiefs out of his tree. As a exception to the general rule, that man would not act justified under "Notwehr" because the threat to his property is too marginal.

With regard to the Zimmermann case, I concur with you.

S.

Am a bit surprised at the confidence with which you state that a German court would have acquitted Zimmerman as well. Cases of self-defense are notorious for the widely varying assessments of similar situations by the courts. Take the case of Sven G., for example: http://www.spiegel.de/panorama/justiz/streitfall-notwehr-ich-habe-noch-nie-so-viel-angst-gehabt-a-659320.html

"Attempted manslaughter": Three years and nine months for stabbing his assailant in the neck (on appeal, reduced to three years and three months). The guy was in fear of his life after the assailant had just knocked down one of his friends, yet the court said he acted in excess of reasonable self-defense.

Zimmermann's acquittal, too, was not a slam-dunk. We have heard from jurors that initially three of them voted to acquit, two to convict of manslaughter, and the sixth wanted him put away for 2nd-degree murder (!).

And there are other cases, both in the U.S. and in Germany, that exhibit a confusing inconsistency. I don't think any advice can be given except to stay out of trouble and if you're unlucky enough to have to defend yourself with deadly force, lawyer up ASAP... and pray. There is no telling how the legal system will dispose of you afterward.

Ralph

A very long time ago, I read about a Munich jeweler whose home was invaded by two thieves, one of whom the jeweler shot and killed while the thief was searching the house for booty. The jeweler was cleared of all charges.

Altereggo

I just want to add: it was *possible* that nobody would have died. See this case for a counter-example http://www.elpasotimes.com/tablehome/ci_21843760/teen-accused-el-paso-officers-fatal-beating-indicted

One astounding thing about the case was how many people believe violence to be an acceptable social response, as long as the perpetrator is unarmed.

LemmusLemmus

Though I'm a German in Germany, I have read more of the American coverage. In fairness to the German media, isn't it true that the case would probably never have made it to court (because the state "had no case") if it hadn't been for the very biased campaign in the U.S. media?

I'm saying this because I had the impression that the coverage in Spiegel online was based largely on reading NYT et al.

Damon

I was really really amused by the Candide reference. Thank you for that bright spot in my day. That is all.

Stefan Tilkov

Based on what I have read, here and elsewhere, I largely agree with your view. One aspect that strongly influences most Germans' take on the whole thing is the entirely unacceptable idea that someone might just walk around with a licensed, concealed gun. As it was legal under US law, this doesn't, of course, change anything from a legal perspective. But my guess that in the minds of most Germans, the two issues - this particular case and the more general, rather idea of letting people run around with guns - get conflated and contribute to the negative side of things.

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