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July 16, 2013


There is a real danger in inserting extraneous variables into murder trials, whether race, class or any other variable which could affect the outcome at trial. The only purpose of a trial, after all, is to ascertain whether the defendant took the life of the decedent in the degree charged by the prosecution, from reckless homicide through first degree murder, with criteria for degree from reckless through malice aforethought as proven by the misconduct of the criminal defendant, and all to be proven beyond a reasonable doubt. The prosecution has a heavy burden, and should have. The prosecutor’s burden does not include the race of either decedent or defendant. The law is neutral; such a question is immaterial. The prosecution has enough to prove; the prosecution need not be burdened with having to additionally show a racial component in the guilty state of mind of the defendant.

It is not just because I am a lawyer that I had doubts of this conviction from the beginning. I predicted that Zimmerman would be found not guilty, even though from what I know it appears that he did in fact take a human life in some degree of guilt, at least manslaughter. It occurred to me from the outset of this case that the emphasis on race could set the stage for a not guilty finding, just the opposite of what those who set the stage wanted to happen. I think it entirely possible that Zimmerman would have been found guilty of murder absent racial overtones in this process – that and the state of the Florida “stand your ground” law – which never should have become law in Florida or anywhere else.

It seems to me there were two major problems in this ballyhooed trial. First was the insertion of race (which blotted out the central question of guilt in favor of a socialized view by people who decide guilt based on race rather than evidence or lack of it). The second problem is the one that is continuing, and I agree with the president of the NAACP that it has to go – it is the “stand your ground” statute not only in Florida, but elsewhere. We already have a self-defense ground for legally taking the life of another; we do not need any additions to that defense. The stand your ground statutes popping up in state legislatures across the country should be repealed. They clearly encourage more killing than before under the guise of defense of person, property and family when we need less killing in this country. We are already in a bloodbath; why encourage killing under the pretense that one has a “stand your ground” right to defend oneself when one already has such a right?

The “stand your ground” argument in the legislatures should yield to a “retreat doctrine” when a human life or lives hang in the balance. Which is more rational, a situation in which the threatened putative killer is thinking “I don’t have to take any lip from this guy” under the stand your ground statute; if he keeps it up or makes a move at me, I’ll just kill him,” versus “Maybe this guy is having a bad day, or on dope, or whatever. I can put my ego to one side and walk away. Is my bruised ego (self-concept as defined by the NRA and gun manufacturers) worth a human life?”

People who want to use race in a murder trial are, arguably, racists themselves. Attributing other motives to the criminal defendant than the ones his conduct proves places an additional burden on the prosecution and perhaps the defense as well, depending on how the jury looks at it. As for black racism, we can all expect a blizzard of complaints from real racists as to why the black marchers aren’t marching when blacks kill blacks.

The only purpose of a criminal trial is to ascertain the guilt or innocence of the criminal defendant; whether the deceased or the defendant is black or white is immaterial to the issue of guilt. The prosecutor does not have to prove racial motive because the law does not require it in homicide cases. The question is whether a human life has been taken by criminal means, not whether that life was white or black or yellow. Newspapers and marchers are not in charge of criminal trials; courts and juries are. Guilt or innocence is found in jury rooms, not the streets.

The sad truth is that racists can be found not guilty of a crime because the degree of hatred a criminal defendant may have is not involved in a finding that he/she committed a particular crime. Of course, there are hate crimes, and that is a different story because the elements of proof in such cases do go to racial hatred (or perhaps even class hatred disguised as race hatred). Prosecutors in such cases have to prove beyond a reasonable doubt that the misconduct of such defendants resulted from race hatred per se, which is a heavy burden since a state of mind is involved and the only way to prove such a state of mind is by the knowable misconduct of the defendant (like certain language, discrimination in hiring or whatever other conduct proves race hatred).

Personally, and from what I know (I was not on the jury and did not hear the evidence), I think Zimmerman was guilty of some degree of homicide and should be in jail. However, I think he got a break when the national press decided to talk race instead of guilt, and that the Florida “stand your ground” NRA ego trip statute may have given him the additional motivation over ordinary self-defense law to go ahead and kill the decedent, a statute that never should have been passed and signed into law and one  of which the jury was aware, and which may have given them a grounds for a not guilty finding.

In all events, as I have just recently blogged, the bloodbath in America has to come to a halt, whoever is killing whoever and whatever the motive (real or pretended). “Stand your ground” statutes as approved by the NRA such as the one in Florida are, in my opinion (as well as in the opinion of the president of the NAACP) adding fuel to the fire, contrary to their stated purposes for enactment.

I am a resident voter of the state of Florida, and I intend to agitate for the repeal of this so-called “right to stand your ground” act passed into law by a Republican legislative majority and signed by a Republican governor. We have been sold a bill of goods, and the travesty we have all witnessed in the Zimmerman case is, in my opinion, not only the proof in the pudding, but a harbinger of things to come and totally inimical to the public interest, a legislative mistake badly in need of correction.

One would think that a legislature and governor of any political complexion would be interested in reducing the rate of homicides within their jurisdiction, but the NRA and gun manufacturers have a lot of money available for campaign contributions and a lot of contorted Wild West logic for sale to money hungry politicians who buy such frontier mentality in a crowded nation of over three hundred million people at risk, over three hundred million people at additional risk due to their bought votes.

Has the term “shame” been banished from the lexicon? I hope not, because it has application to these thoughtless politicians who (in my opinion) effectively value campaign contributions over life and are (wittingly or unwittingly) indirectly aiding and abetting homicide. If anyone reading this lives in a state where such is or is about to become the law, I urge you to actively resist such an enactment.  GERALD  E


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