The following article on the Trayvon Martin trial suggests that together  doctrinal and critical analysis can often be more powerful than either alone  Written for a symposium issue on Critical Latino LatCrit scholarship the article posits that jury nullification can operate to reduce the impact of a defense in which the jury does not really believe such as self defense or standyourground  And in the Martin case felony murder coupled with felony stalking was an avenue that the Florida prosecutor left unexplore

Delgado, Richard

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Alabama Law Scholarly Commons Articles Faculty Scholarship 2013 The Trayvon Martin Trial - Two Comments and an Observation Richard Delgado University of Alabama - School of Law, rdelgado@law.ua.edu Follow this and additional works at: https://scholarship.law.ua.edu/fac_articles Recommended Citation Richard Delgado, The Trayvon Martin Trial - Two Comments and an Observation, 47 J. Marshall L. Rev. 1371 (2013). Available at: https://scholarship.law.ua.edu/fac_articles/362 This Article is brought to you for free and open access by the Faculty Scholarship at Alabama Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Alabama Law Scholarly Commons. THE TRAYVON MARTIN TRIAL - TWOCOMMENTS AND AN OBSERVATIONRICHARD DELGADO 1I. Introduction: Doctrinal and Critical Analysis, BetterTogether Than Either Alone .............. ......... 1371A. Charging a less serious offense coupled with felonymurder. ........................... .......... 1372B. Jury Nullification ....................... 1373II. Conclusion ............................. ........ 1375I. INTRODUCTION: DOCTRINAL AND CRITICAL ANALYSIS, BETTERTOGETHER THAN EITHER ALONEWhen the jury in the Trayvon Martin trial returned itsverdict of not guilty, most minority commentators and manyliberals were deeply disappointed. 2 Many posited that had theplaces of the two central characters, George Zimmerman, thewhite-looking Hispanic neighborhood watch volunteer, andTrayvon, the black teenager who ended up dead, been reversed,the black teenager would have been convicted of the other'sdeath. 3Others focused on Florida's stand-your-ground law, a beefed-up self-defense statute that places no duty on an attacked personto retreat if possible to avoid a dangerous confrontation.4  ManyI *John J. Sparkman Chair of Law, University of Alabama School of Law.Thanks to Jean Stefancic for comments and suggestions.2 See Lizette Alvarez and Cara Buckley, Zimmerman is Acquitted inTrayvon Martin Killing, N.Y. TIMES, July 13, 2013, available athttp://www.nytimes.com/2013/07/14/us/george-zimmerman-verdict-trayvon-martin.html (noting the scene outside the courthouse after the not guiltyverdict was returned and comments by disheartened NAACP personnel).3 See, e.g., Jon Cohen and Dan Balz, Race Shapes Zimmerman VerdictReaction, WASH. PoST, July 22, 2013, available athttp://articles.washingtonpost.com/2013-07-22/politics/40728194_1-george-zimmerman-trayvon-martin-whites (positing that the verdict was dictated bythe races of Zimmerman and Martin).4 FLA. STAT. ANN. § 776.013(3) (2012). The statute enabled Zimmerman toassert that his shooting ofthe young Martin was in self-defense, since Martinwas on top pummeling him at the time of the shooting and may have beenreaching for Zimmerman's weapon. See Editorial, No Justice for TrayvonMartin, THE BALTIMORE SUN, July 15, 2013,http://articles.baltimoresun.com/2013-07-15/news/bs-ed-trayvon-martin-20130715_1_trayvon-martin-george-zimmerman-own-defense (discussing that137147 JOHN MARSHALL L. REV. 1372noted that these laws increase the chance that an innocent personof color will end up killed and his victimizer acquitted because thejury finds the minority person inherently menacing - the sort ofperson any of us might easily have shot in a situation like the onesupposedly confronting Zimmerman. 5I contend that creative application of existing legal doctrine,informed by critical analysis, might have produced a differentresult in this case. Critical writers can easily overlook doctrinalavenues, focusing instead on the role of broad structural forcessuch as racial stereotypes in shaping perception and credibility.6Sometimes, however, the solution to a problem may lie in theimaginative application of a doctrinal tool found, not in a criticalrace theory reader, but a legal hornbook. Consider two ways thismight have happened in the abovementioned trial.A. Charging a less serious offense coupled with felony murder.Consider, first, how the state might have secured a convictionif they had charged a lesser offense and proceeded from there. Forexample, Florida law recognizes several types of stalking, most ofthem misdemeanors but one a felony.7 Once the police dispatcherordered Zimmerman not to get out of his car, his subsequentbehavior would seem to have amounted to the kind of hounding ofa defenseless person that felony stalking requires - especiallywhen one recalls that he seems to have lost sight of Trayvon for atime and searched until he found him, upon which he resumedconfronting the unarmed youth, who was on his way to visitrelatives. 8Florida law includes felony stalking as one of the predicatecrimes for felony murder. 9 Once the Martin incident escalated intoa fatal exchange, it began to resemble one of those textbook casesthis defense encourages vigilante action and induces simple confrontations toturn violent - even deadly).6 Id.6 See, e.g., Sheri Lynn Johnson, Racial Imagery in Criminal Cases, 67TULANE L. REV. 1739, 1749-69 (1993) (noting how racial preconceptions canshape the outcome ofcriminal trials); Cathy Young, Young: Look Deeper atConceptions About Race and Self Defense, NEWSDAY, July 22, 2013, availableat http://www.newsday.com/opinion/columnists/cathy-young/young-look-deeper-at-conceptions-about-race-and-self-defense-1.5744782 (comparing othermixed-race cases with similar self-defense and stand-your-ground claims tothe Trayvon Martin case for a brief analysis of the role race might have playedin Trayvon's case).7 See FLA. STAT. ANN. § 784.048 (3) (West 2012) (describing several types ofmisdemeanor stalking and a more serious form that is a felony).8 See Interactive Map: The Trayvon Martin Killing,http://www.hlntv.com/interactive/2013/06/17/zimmerman-trayvon-map-interactive (exhibiting the location and timeline ofevents leading up to theTrayvon Martin shooting).9 FLA. STAT. ANN § 782.04(2)(n) (West 2012).1372 Vol. 47:4The Trayvon Martin Trialof getaway car drivers who find themselves charged with felonymurder when things turn sour inside the convenience store andthe more active accomplice shoots the manager. 10The prosecution's mistake, then, may have lain in chargingZimmerman with murder alone and not thinking precisely aboutwhat he did from the perspective of the young victim.Note that when a male of color is in the dock, the state oftenover-charges in order to coerce the defendant to plead guilty to alesser charge, thereby escaping a potentially much longersentence. By contrast, when the defendant is someone likeZimmerman, whom the authorities were apparently chargingreluctantly rather than enthusiastically,11 might they have beentempted to over-charge, secure in the knowledge that the jurywould acquit because the crime did not "add up," and theneveryone would be off the hook?Securing a conviction for stalking would seem to have beenmuch easier than one for homicide, in light of Zimmerman's actualbehavior on that fatal night. 12 And the felony-murder rule mighthave allowed Florida to seek the more serious penalty thatattaches when a stalking goes astray and a victim lies dead on theground.B. Jury NullificationA second avenue, jury nullification, could also have played arole in the proceedings. Paul Butler's well-known article in theYALE LAW JOURNAL' 3 describes how this mechanism can operate infavor of a black defendant when a juror (often black) believes thatthe youth is more valuable to society free than behind bars. 14Butler adds that jury nullification is especially in order when thecrime is victimless (malum prohibitum), the law unfair and10 The getaway driver parked outside cannot escape liability by pointingout that he only agreed to drive, nor even that everyone agreed beforehand notto use force. See generally Guyora Binder, Making the Best of Felony Murder,91 B.U. L. REV. (2011) (discussing this doctrine and the scenarios that call itinto play).11 The state delayed several months before acceding to public pressure andcharging Zimmerman with second-degree murder.12 This is not to assert that Zimmerman was guilty of stalking or any othercrime on the night in question. Rather, amassing evidence of stalking wouldseem to have been simpler and easier than for murder, which requires proof ofspecific intent. Further, self-defense would not lie so readily for one engagedin stalking, since a victim's frightened reaction might strike a jury asreasonable. They might reject a stand-your-ground defense for the samereason: no one stands his ground to defend the precious right to stalk another.13 Paul Butler, Racially Based Jury Nullification: Black Power in theCriminal Justice System, 105 YALE L.J. 677, 713 (1995).14 See also Regina Austin, The Black Community," Its Lawbreakers, and aPolitics of Identification, 65 S. CAL. L. REV. 1769, 1776-78 (1992) (advancing asimilar proposition).Vol 47:4 137347 JOHN MARSHALL L. REV. 1374unpopular, and the prosecution tainted by racism. 15In these cases, nullification - where the juror votes to acquitdespite the law and the evidence - assures a hung jury (if just onevotes that way) or an acquittal (if they all do). And an acquittal isunreviewable because of the prohibition against double jeopardywhich, in turn, is rooted in ancient traditions.' 6Although Butler did not say so, nothing would seem toprevent a minority juror from nullifying a defense, such as stand-your-ground, that the juror believes would operate unjustly in aparticular case. In the Trayvon Martin trial, some of the jurorsapparently were initially inclined to convict. 17 One of them, aPuerto Rican woman, said afterward that she had supported asecond-degree murder conviction but felt she had to follow the ruleof law as laid out in the instructions that the judge provided to thejurors shortly before they retired to deliberate. 18In her post-trial interview, this juror seems not to haveknown about jury nullification. 19 Most black jurors would havebecause Butler, after publishing his YALE LAW JOURNAL article,went on black radio publicizing this option. Black rappers took upthe cry, 2 0 so that today, many blacks know about jury nullificationand can apply it in appropriate cases.Most Latinos probably do not, in part because no Latino lawprofessor has, to my knowledge, gone on Spanish language radio orTV as Paul Butler did for blacks. Why not? In his article, Butlersays that his objective is to use the master's tools to dismantle themaster's house. 21 In my mind's eye, I saw an elegant house, madeof concrete or stone, with Paul Butler standing nearby, sizing itup. On seeing a tool left behind by the construction crew, he picksit up and begins dismantling the house.No Latino professor to my knowledge has picked up the same15 See Butler, supra note 13, at 679-80, 698, 714-15 (setting out criteria fornullification).16 See David S. Rudstein, A Brief History of the Fifth AmendmentGuarantee Against Double Jeopardy, 14 WM. & MARY BILL RTs. J. 193, 210(2005) (placing the origin in the ferment of the Magna Carta).17 See Nina Terrero, Puerto Rican Juror on Zimmerman Trial: 7Fought tothe End" NBC LATINO, July 26, 2013, http://nbclatino.com/2013/07/26/puerto-rican-juror-on-zimmerman-trial-i-fought-to-the-end/ (relaying the impressionsof the only minority juror who almost caused a hung jury but ultimately joinedthe otherwise unanimous decision to acquit Zimmerman of all charges after alengthy deliberation).18 Id.19 Id.20 See Randall Kennedy, The State, Criminal Law, and RacialDiscrimination, 107 HARV. L. REV. 1255, 1258 n.10 (1994) (noting that raplyrics are widely used to convey messages, like this one, to the blackcommunity).21 See Butler, supra note 13, at 680 (citing a line by AUDRE LORDE, TheMaster's Tools Will Not Dismantle the Master's House, SISTER OUTSIDER:ESSAYS AND SPEECHES (2007)).1374 Vol 47:4The Trayvon Martin Trialtool: going on TV or radio to publicize jury nullification for thebenefit of the Latino community. Might the reason be that many ofus imagine that we are living inside the master's house and find itcomfortable? But our room may be little more than a fixed-upversion of former slave quarters and ours to live in just for a while,during good behavior.Latino culture has plenty of tools for dismantling houses,ranging from guerrilla theatre22 to corridoS23 and counter-storytelling. 24 Maybe we need to brush off our toolkit and get theword out to our community about all of these legal tools lyingaround unused.II. CONCLUSIONTwo legal doctrines might have altered the results in theTrayvon Martin case. Charging a lesser crime - coupled with thefelony murder doctrine - and jury nullification were both availablebut overlooked. Under pressure to charge George Zimmerman forthe death of Trayvon Martin, the prosecution ignored a two-stepmaneuver that might have captured what actually happened. Bythe same token, some jurors were at first inclined to convict, butvoted to acquit when it appeared the only avenue available tothem under existing law. Jury nullification might have enabledthem to vote their conscience, and if even one of them had done so,the first trial jury would have hung. A second trial might haveprovided the opportunity for a more thorough airing of theevidence of what happened on that fateful night. It might havefocused attention on racial profiling, a serious and widespreadsocial problem. It might also have provided a more satisfactoryresolution for both Trayvon Martin's family and for some of thecountry's racial woes.22 See, e.g., LATINOS AND THE LAW: CASES AND MATERIALS 569-71, 577-82,592 (Richard Delgado, Juan Perea, and Jean Stefancic eds, 2008) (illustratinginstances where the Latino and minority communities have resistedoppression through positive avenues); see generally YOLANDA BROYLES, ELTEATRO CAMPENSINO: THEATRE IN THE CHICANO MOVEMENT (1994)(discussing El Teatro Campesino, a community based theater troupe).23 See LATINOS AND THE LAw, supra note 22, at 211-12 (discussingcommunity songs, ballads, and laments highlighting a heroic event or exampleof injustice).24 See generally Richard Delgado, Storytelling for Oppositionists andOthers: A Plea for Narrative, 87 MICH. L. REV. 2411, 2434-41 (1989)(describing the role of storytelling and narrative analysis in oppositionaldiscourse and law reform).Vol. 47:4 1375

The Trayvon Martin Trial - Two Comments and an Observation

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The Trayvon Martin Trial - Two Comments and an Observation

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