Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

19 July 2013

The Zimmerman Matter

An unremarkable trial
Vigilantism and its discontents
Why we have police
Update: the President’s Impromptu Talk

An unremarkable trial

George Zimmerman’s acquittal for killing unarmed teenager Trayvon Martin proves two things about our society. First, our criminal justice system worked the way it’s supposed to work. Second, our culture—especially in Southern states like Florida and Texas—is becoming dangerously pathological and pathologically dangerous.

Insofar as anyone not obsessed with the case can tell from reading the press, the trial was unremarkable. A man was accused of murder and manslaughter. There were only two eyewitnesses to the incident. One (the victim Martin) was dead. The killer (Zimmerman) exercised his constitutional right not to testify.

So there was no direct evidence of what actually happened. None at all. Zimmerman’s lawyer said that Martin had attacked Zimmerman, and that Zimmerman fired in self-defense. The entire trial turned on whether that was true.

The prosecutor had to engage in sheer speculation to make his case. With Zimmerman silent, there were no eye witnesses. There were some ear-witnesses, to a scratchy recording of a scratchy phone call transmitting a distant call for help. Martin’s and Zimmerman’s mother each said the person crying for help was her son. But in a commendable display of honesty (given the poor quality of the recording), Martin’s mother admitted she wasn’t sure.

So there was not just scanty evidence. There was virtually no reliable evidence on the key points of the defense: who attacked whom, and whether Zimmerman had reasonable ground to fear for his safety or his life. On these crucial issues, there was nothing but weak circumstantial evidence, the conflicting testimony of ear-witnesses, and plenty of speculation. The two sides relied on “narratives,” i.e., conflicting stories told to achieve opposite results—acquittal or conviction.

If anything important in public life should teach us the difference between “narratives” and fact, this case was it. When “narratives” replace hard evidence and science as the basis of “truth,” a society decays. We are moving faster and faster down that descending road.

Although it’s not explicit in our Constitution, our law recognizes the need for a higher standard of truth before we put someone in jail, let alone execute him. It requires proof “beyond a reasonable doubt.”

A juror would have had to be brain dead not to have had a reasonable doubt whether Zimmerman killed in cold blood, or even through negligence. There just wasn’t enough reliable evidence either way to know for sure. So the jury acquitted Zimmerman.

That’s precisely what’s supposed to happen in a case like this. People don’t go to jail in America unless they confess (and their confession is credible!), or unless we are virtually certain they belong there. (Whether our so-called “scientific” or “forensic” evidence is worth the credence that juries typically give it is another story entirely, one on which PBS’ “Frontline” series recently cast serious doubt.)

A few years ago, an African-American named OJ Simpson walked free from a double-murder trial because of that selfsame high standard of proof in criminal cases. Later, when the parents of one of the victims sued him for wrongful death in civil court, they won.

These apparently inconsistent results did not arise from flaws in the law or the respective juries. The parents won, while the state’s prosecutor lost, because the standard of proof in civil cases is a “preponderance of the evidence,” or in nonlawyers’ terms, more likely than not.

So the real issue with the Zimmerman matter is not the trial. If we don’t like a system that lets so many probable criminals go free, then we have to change our standard of proof of guilt from “beyond a reasonable doubt” to a “preponderance of the evidence,” as in civil cases. But before doing that, each of us should think hard about what would happen if we found ourselves in the criminals’ dock because of mistaken identity, or for other reasons of which we have no clue.

Vigilantism and its discontents

Routine application of our high burden of truth in criminal cases doesn’t mean that Zimmerman’s entire course of action was proper, let alone laudable. What it means is that we have to distinguish between our criminal justice system, which is chugging along as planned, and our culture and communities, which are in social and moral decay. We have to separate the trial from the larger incident or “case.”

What was Zimmerman doing following Martin around, by car and on foot, with a loaded weapon at his side? Both sides in the trial agreed on those facts.

They also agreed on Zimmerman’s probable motivation for those acts. He was following Martin around because he suspected Martin of being a criminal or “punk,” from whom he wanted to protect his mother and his neighborhood. Although the judge would’t let the lawyers use the word “race,” it’s obvious that Zimmerman based his suspicions largely on Martin’s race, age, behavior and dress. Since he didn’t know Martin from Adam, there was nothing else from which he could have formed an impression. What Zimmerman did was profiling at its very worst.

So here we had an ordinary citizen following another around with a gun, trying to do the job of the police. To my knowledge, Zimmerman had no training in investigation or police work, let alone in self-restraint. All he had was basic training in Neighborhood Watch—which amounts to “if you see anything suspicious, stay out of trouble and call the police.”

Zimmerman self-evidently failed to stay out of trouble. And when he did call the police, he went beyond what the police wanted him to do. He disobeyed the dispatcher, got out of his car, and followed Martin on foot.

We used to call such people “vigilantes.” That was not a term of approbation.

Why we have police

Let’s analyze where we as a nation, or at least Florida and Texas, might be headed. To do that, we must take a look at history and architecture.

Ancient Rome had no such thing as a police force. The idea of having a specialized paramilitary force to protect ordinary people from assault, robbery and other crimes arose after the Renaissance. Today, no country in the world lacks such a force, whether they spell it “police” like us or “polis,” as in many other nations that use the Roman alphabet. Police forces seem to have been a good idea that caught on, species-wide.

So how did ancient Rome protect its citizens from crime? It didn’t. The citizens had to protect themselves. The rich had able-bodied slaves to protect them, including trusted ones with good weapons. Veterans of the many Roman wars had their own weapons and military training, which most civilians (including criminals) lacked. Ordinary people made do with what they had. Mostly, they took their risks and lumps.

But everyone—rich and poor alike—relied on architecture for personal safety. The standard Roman home had a single entry. Usually, it had a stout door with an iron bar. The rich had pleasant outdoor courtyards, but they were all inside the outer walls. The roof was open to sky, sun and breeze, but high, hard-to-scale walls with spikes on top prevented intrusion. Outsiders could not even look in, let alone enter.

Now fast-forward to America in the twentieth century. I was born in the mid-forties. Early in my life, my family moved to the same upscale West L.A. suburb where OJ Simpson lived at the time of his trial.

When I was a kid there, all the front lawns were open to the street. There were small fences between lots, but they were easy to cross. They gave us kids practice in fence-climbing.

We kids played football on my front lawn. At a whim, we would go to a neighbor’s house to continue the game or to do something else for fun. Nothing barred our way but the occasional unlocked gate latch, which kept neighbors’ dogs confined and toddlers out of swimming pools.

Today my (and OJ’s) old neighborhood is much changed. High fences and impenetrable hedges line the streets. The big front lawns are no more visible than the inner courtyards of rich people’s estates in Roman times. Little signs dot fences and stick up at odd angles, threatening “Armed Response.”

What those signs say is that rich people, at least in LA, no longer trust the police entirely. They supplement police protection with physical barriers and private security services.

Some, no doubt, have weapons on their premises. But most rightly conclude that policing, like anything else, is a speciality. So it’s better for them to do what they do best than to try to be jacks or jills of all trades. They practice law or medicine, buy and sell companies, make or star in movies, or otherwise wheel and deal, leaving the specialized business of personal protection to the police and licensed private contractors.

With this background, Akron, Ohio, was a revelation for me. Our house there is worth about one-fourtieth what my childhood home in OJ’s neighborhood is now worth. Our Akron neighborhood is well integrated, mostly African-American and white. For the eleven years I lived there, and for our regular visits back still, I have never felt so safe.

Many times, we returned from trips to find FedEx or UPS packages sitting on our front porch, in full view of the street. Nothing ever went missing. A few times I left the keys in the front door overnight, out of sheer fatigue or absent-mindedness. They were still there in the morning.

Most properties have no fences between homes at all. The properly lines meet somewhere in the middle of a big lawn, and no one but realtors seems to care exactly where. If kids are playing and a ball strays into a neighbor’s lot, the kids retrieve it and, if anyone is there, wave at the owner. The owner waves back. Everyone can see the sky, all of it not blocked by trees.

For a few years, a policeman lived across the street and a few doors down. For a while, he parked his police car on the street. So did another policemen a few blocks away. The closer one moved away, and maybe the rules for personal use of police cars changed. We don’t see the squad cars much anymore.

Anyway, nothing has changed in our old Akron neighborhood since the squad cars went away. Safety, it seems, is more a matter of culture and social norms than fast-response policing. But having police who know and live in the neighborhood certainly helps. Today it’s called “community policing,” but it’s really just common sense and neighborliness.

When I compare these two places I’ve lived—one unabashedly wealthy, one solidly middle class—I feel sorry for the people living in the rich community today, and for people in the Martin-Zimmerman community. I don’t want to live behind high walls and hedges, or to threaten passers by with “Armed Response.” I don’t want to live in an ancient-Roman style home, looking at just a patch of the sky, straight up. I don’t want to live in a prison of my own making.

Nor do I want vigilantes like Zimmerman prowling my neighborhood, however protective their intentions might be. I want people who’ve graduated the Police Academy, who follow orders from superiors, who can shoot straight under pressure (at other than point-blank range) and who understand that self-restraint is even more important than the weapons hanging from their belts.

In short, I want trained, full-time experts, not amateurs and dilettantes, keeping me safe. Vigilantism offers none of those benefits.

And what about community? Apparently Martin had been living with a relative in Zimmerman’s community for only a few months. He was new in the neighborhood. Why didn’t Zimmerman know that? Why didn’t he approach Martin and get to know him? Why did he feel he had to follow Martin around while carrying a firearm, when a few words might have made friends, or at least allayed suspicions? Martin might even have helped Zimmerman find out who the bad guys really were, assuming Zimmerman’s mother was not just afraid of phantoms.


These are the kinds of questions that people should be asking about the Zimmerman incident. Second-guessing the lawyers, judge and jurors will accomplish nothing. Our double-jeaopardy laws prevent ever trying Zimmerman for the same crimes again, unless the State of Florida can win an appeal, an extreme unlikelihood.

But analyzing where our culture and communities are going is just what we need. A lot of questions need answering, but two things are certain. Returning to the vigilantism of our semi-mythical “Old West” is not the answer to living safely together in the twenty-first century. Nor is returning to ancient Rome’s culture of relying on yourself, your household, and your personal weapons for safety from crime.

If we ever get to that point, the rest of the world will long ago have passed us, and we will have become a banana republic. We will all be devoting too much time to target practice and martial arts, and far too little to gainful employment, innovation, and cultural enrichment. And most of us—whether black, white, brown or yellow—will be running scared, of both vigilantes and each other.

Update: the President’s Impromptu Talk

I published the foregoing post half a day before learning that the President had spoken on the same subject, impromptu, at the beginning of the regular White House news conference. He spoke without notes or teleprompter, from his personal experience and from his heart.

He was sober, even subdued. His understated, quiet language came as a welcome relief from all the opinionated, dogmatic loudmouths who are sure they have the abstract secrets to life, the Universe and everything, including racism and crime, and can fit them on a bumper sticker.

President Obama was most authentic and touching when he described how the experiences of African-American males—even his!—differ from those of the rest of us, largely because who they are engenders suspicion in and of itself.

Our society won’t be fully “post-racial” until that reflex suspicion disappears. Neither the President nor other African-Americans can change it by themselves, for it exists in others, about them. But as the President said, it fades more with each new generation.

The informal talk was less than eighteen minutes long. So I won’t attempt to summarize it or even give highlights.

Yet two points are worth noting. First, the President’s effort not only was well worth making. It also made the news.

The odd notion that the President of the United States gets lost in the cacophony of daily gossip and blowhardry is, in Mark Twain’s words, greatly exaggerated. If the President has to make more impromptu and unannounced appearances at White House news conferences to use his bully pulpit, he should do so. At least once a week.

Second, the President questioned the value of “stand-your-ground” laws. Do they defuse suspicion and confrontation, or do they encourage it? Are they invitations to vigilantism? What if Trayvon Martin had been armed and had shot Zimmerman, out of reasonable fear of an older man, wearing a holster, following him by car and on foot?

There are not many other issues on which the President will feel such a deeply personal stake. But there are others on which he feels strongly. One is spreading the benefits of modern medicine to those who can’t now afford them. If his second inaugural address and recent major speech were indicative, global warming is another.

I hope and pray that his interrupting the normal (and dull) routine of White House news conferences is not a one-of, but the beginning of a new regime of communicating directly with the public. From time to time, we all need to hear from a highly intelligent, even-handed, thoughtful person, who (thank God!) happens to be our President.



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