Law
9:15 am
Wed July 10, 2013

Is The Zimmerman Prosecution Legally 'Weak?'

Originally published on Wed July 10, 2013 12:56 pm

Transcript

MICHEL MARTIN, HOST:

I'm Michel Martin and this is TELL ME MORE from NPR News. The trial of George Zimmerman in the shooting death of Trayvon Martin has riveted people who are interested in criminal justice issues. But that's not all, the story has clearly touched many nerves, and has sparked all kinds of conversations. Certainly about race, but also about things like how we perceive people based on how they look and how they speak.

So later, we'll talk with some of the people who've been following these conversations on social media and other outlets. But we continue now with the legal case. And now we want to speak with two law professors who've been following the case closely. Joining us now are Paul Butler, he's a former federal prosecutor. He now teaches criminal and race relations law at Georgetown Law. He's with us in our Washington, D.C. studios. Paul Butler, thank you so much for joining us.

PAUL BUTLER: Hey, Michel. Great to be here.

MARTIN: Also with us, Pamela Bucy Pierson. She's also a former federal prosecutor. She now teaches criminal law and procedure at the University of Alabama School of Law. And she's with us from Tuscaloosa. Professor Bucy Pierson, thank you so much for joining us also.

PAMELA BUCY PIERSON: Happy to be here.

MARTIN: So I want to start where reporter Rene Stutzman left off. As we mentioned, she's been covering the trial from the beginning for the Orlando Sentinel. She says that the prosecution has presented a weak case from the beginning. She says the evidence was weak and the case has been poorly presented.

You're both former prosecutors - and part of the reason I'm talking about it in this way is that this is not a civil matter. This is not a matter between two private parties where you can just choose to bring a case, the prosecution decides to bring the case. So Professor Butler, I'll start with you. Do you think she's got a point?

BUTLER: Well, I think it's a kind of lousy murder case because for murder, the prosecution would have to prove what's going on in Mr. Zimmerman's mind - that he was malicious, that he hated Trayvon, that he had all this ill will. And I'm not sure we've seen a lot of evidence of that.

On the other hand, it's a pretty good manslaughter case, and the jury will have the option, almost certainly, of convicting him of that. 'Cause for manslaughter, all that has to be proved is that Mr. Zimmerman was reckless, that he's kind of a loose cannon, and I think we've seen plenty of evidence of that.

MARTIN: Professor Bucy Pierson, what do you say?

BUCY PIERSON: I agree with Paul. I think the government's got a weak case and it hinges on that intent element. That government has got to prove that, of course, that he killed - that Zimmerman killed Trayvon, but that he did so - and here's the magic language - evincing a depraved mind. And then the jury will be told that that means they've got to find that the killing was done with ill will, hatred, spite or an evil intent. And I don't think the evidence shows that.

MARTIN: Paul Butler, I'll go back to you on this. Were the difficulties a matter of the law enforcement investigation to begin with? Is it that - well, you know, there were the number of things that have come out. I mean, the fact that they didn't detain Mr. Zimmerman, the fact that they did not - they tox screened Trayvon Martin's remains, but they never gave him a tox screen, they let him go home, you know, all of these things. Or is it simply that they haven't presented a narrative that makes sense?

BUTLER: It's certainly that. So let's remember how this case started. A skinny teenager was shot and killed when all he was doing was walking home from 7-11 with a bag of Skittles. And somehow, mainly because of a very effective defense, we've lost sight of that. But it's the prosecutor's job to keep reminding everybody that this young kid didn't have a gun and he was shot down.

So, you know, no prosecution, no investigation is perfect, so you always have to play the hand you're dealt. But I'm not sure the prosecution is doing the most effective job of even dealing with all of the evidence.

MARTIN: Pamela, can I ask you that many commentators have pointed out that the prosecution has put on witnesses who seem to undermine their own case. We understand that the prosecution's intent here is to show that George Zimmerman's a liar, and that his pattern of lying that, you know, proves a consciousness of guilt.

But they've seemed to put on witnesses who seem to undermine that whole thing. For example, Detective Chris Serino has taken the stand several times and Mr. Zimmerman's lawyer, Mark O'Mara, asked about an investigation technique, and I'll just play the clip.

(SOUNDBITE OF ZIMMERMAN TRIAL)

MARK OMARA: The fact that George Zimmerman said to you, thank God. I hope somebody did videotape the whole event. His statement, what did that indicate to you?

CHRIS SERINO: Either he was telling the truth or he was a complete pathological liar. One of the two.

OMARA: OK. Now let's look at overall, was there anything else in this case where you got the insight that he might be a pathological liar?

SERINO: No.

OMARA: Matter of fact, everything that he told you to date had been corroborated by other evidence you were already aware of in the investigation that he was unaware of?

SERINO: Correct.

OMARA: OK. So if we were to take pathological liar off the table as a possibility, you think he was telling the truth?

SERINO: Yes.

MARTIN: So Professor Bucy Pierson, will you talk about that, if you would. I mean, a number of commentators, and of course, these people are not experts, some people are observing - well, some are experts, some of the television legal commentators have been saying, why?

BUCY PIERSON: A prosecutor doesn't get to construct their evidence. You take the evidence as it happened. And I think the bottom line is that this is a very, very weak case to prove that this was second-degree murder. And the facts, which are the witnesses, reflect that. So I don't fault the prosecution in any way for how they've tried the case.

It's a weak case. And I think that's reflected in the ambivalence that there was, certainly at the beginning after the homicide occurred, as to whether it should even be charged.

MARTIN: Do you think it should have been charged?

BUCY PIERSON: I agree with Paul. I think it's a manslaughter case. I don't think it is a second-degree murder case. So, yes, I think he should have been charged but on a lower homicide offense.

MARTIN: Paul, what do you think has been the most compelling part of the prosecution's case so far? And of course, I'm going to ask you about the same of the defense, as well.

BUTLER: So Mrs. Martin's testimony when she was asked who was crying for help on that 911 call, and she said Trayvon Benjamin Martin. She was quiet, she was unshakable, and she was extremely convincing. And I also think, Michel, that Rachel Jeantel, she got a lot of heat in the public, but in part because of all of that attitude.

I think witnesses who don't want to be there are the most persuasive. So it's almost like we were hearing Trayvon testify that there was this weird dude who was following him around, and then he jumped him and Trayvon said, get off me. So if you believe that, then Mr. Zimmerman's claim of self-defense goes out the window.

MARTIN: And Pamela Bucy Pierson, what do you think was the most effective part of the prosecution's case? And then, of course, we're going to turn around and hear the other side of it, too.

BUCY PIERSON: I think John Good's testimony, you know, as Ms. Stutzman said. He was the best eyewitness that the prosecution had. And I thought his testimony was pretty straight forward and pretty compelling.

MARTIN: And what about the other side of it? Professor Bucy Pierson, you want to take that, from the defense side so far, they're still presenting their case as we are talking now, but what do you think has been most compelling so far?

BUCY PIERSON: The chaos of the event. If anyone is in a scary situation like George Zimmerman and Trayvon Martin were, things are going to happen very quickly. And it's your instinct to protect yourself, whether you are perceiving the threat accurately or not.

But the Florida self-defense laws are so broad that with these facts, I think the chaos of everything really weighs in the defense favor and helps show that he, if he did not have a complete defense under self-defense, he reasonably thought he did.

MARTIN: Paul. Paul. OK...

BUCY PIERSON: ...And that's all that's required.

MARTIN: I'm sorry to interrupt. Paul Butler, what do you think. What's been the most compelling part of the defense case so far?

BUTLER: So I don't think the defense has scored any home runs, but they get base hits every single day. So they do what defense attorneys do, which is to put the victim on trial. So I think their best moment is actually yet to come. It's going to be their closing statement where they say the prosecutor has not established any kind of motive.

There's a lot of confusion about who started the fight. And they'll say, ladies of the jury, if you don't know, if you don't have a clear sense of what happened in that encounter between Trayvon and Mr. Zimmerman, you must find him not guilty. I think they're going to say there's reasonable doubt all over this case.

MARTIN: If you're just joining us, we're spending this entire hour reviewing the issues raised in the trial of George Zimmerman. He's the Florida man who killed the unarmed teenager Trayvon Martin last year. He was not initially arrested or charged, but now he's on trial for second-degree murder. Earlier in the program, we spoke to a reporter who's been covering the case from inside the courtroom. Now we're getting analysis from two law professors, both former federal prosecutors, who are reviewing some of the legal issues brought up in the course of the this case.

You know, it's interesting that this case very much has been discussed in terms of race. I mean, the fact that George Zimmerman is a white Hispanic man. His family tells us that he identifies as Hispanic, but many people sort of see him as white. Trayvon Martin, a young African-American man. Many people believe that he was racially profiled and that is why that George Zimmerman treated him the way he did, and why law enforcement initially handled the matter as they did.

It's interesting that Judge Debra Nelson has said, for example, that the word profiling can be used, but not the words racial profiling. And then - so, Paul Butler, I'm asking because this is part of your academic work, how you feel race is playing out in this case, or do you think that the parties have successfully taken race off the table?

BUTLER: Not at all. So this is such a teachable moment in terms of where we are as a country. First of all, how multicultural we are. So Mr. Zimmerman is white, he's Latino. The witnesses have been Asian, Latino, African-American and white. What about all the race talk here? So Rachel Jeantel testified that Trayvon had called Mr. Zimmerman both a cracker and the N-word. So the prosecutor asked, well, why in the world would Trayvon call Mr. Zimmerman the N-word? And Rachel said, well, that's just slang. So we think of those words as so racially charged, but they weren't to Trayvon.

So I think anthropologists are going to have a field day with this. And one other thing, what does it mean to be a racist? That's something that we're thinking more about now. George Zimmerman doesn't seem to anybody like an old-fashioned racist, so it's not that surprising to learn that he has African-American friends. Yesterday, a black woman testified on his behalf. But he may very well have stereotypes about African-Americans. And I think the lived experiences of a lot of people of color is that we've got friends who - they're not racist, but do they hold certain stereotypes? Probably.

MARTIN: Do think it's relevant that there are no African-Americans on this jury? In fact, interestingly enough, the jury is all women. There is a person of mixed heritage on the jury, as I understand it, who is of Latina background. Do you think that that's significant? Is that something that might come up later if this matter goes forward?

BUTLER: It won't come up matter as ground for an appeal, if Mr. Zimmerman is convicted, but I think it makes a huge difference. Even if there were one African-American on that jury, I think that that would make the jurors think about stuff differently.

MARTIN: Professor Bucy Pierson, what do you have to say about all that?

BUCY PIERSON: I think race is the 500 pound gorilla in the room that nobody is talking about. I think it permeates the case and has from the very beginning - the furor about whether Zimmerman was going to be charged. I think that, of course, that was a racial issue there.

So I think it completely permeates the case, and despite the judge's and the attorneys' efforts to keep racial or racist language to a minimum or out of the courtroom, I think it definitely is permeating the entire case.

MARTIN: Well, give an example. Give an example from your perspective. I mean, there are those who obviously talk about the questioning of the young woman that Paul Butler just referenced, Trayvon Martin's friend, Rachel Jeantel, and they feel that she was treated rather contemptuously by defense counsel. And many outside commentators have said that this would not have happened if she were, say, a young, skinny, well-spoken, white woman.

And they just - you can't imagine that. But other people say, well, you know, it's their job to poke holes in her credibility, so of course they're going to take a tough approach to a prosecution witness. I mean, do you have an example of where you feel race is permeating this even if it's not spoken?

BUCY PIERSON: Well, I think the cross-examination of Rachel Jeantel, that's exactly what defense attorneys try to do, is to destroy someone's credibility. But I think the way that you can see that race permeates this is that they went too far. If she had been a thin, white, well-spoken woman, they would've attacked her in every way they could. I mean, that's their job, to attack their credibility.

But we wouldn't be hearing, oh, this was unfair or this is racially biased or - we just wouldn't have that kind of dialogue about this. So I think that's a perfect example of where race really isn't relevant at all to whether or not her credibility was attacked. And yet, that becomes the spin on her testimony.

MARTIN: So, Pamela, how are you going to teach this? Are you going to teach this, and what effect, if anything, do you think this will have on any of the areas that you teach about?

BUCY PIERSON: You know, I've already taught this case twice. And it's a great, great teaching opportunity. I've taught it this summer, and then also as soon as it happened - had a special class on it. And I think it raises two things. One is the prosecutorial discretion. Prosecutors have a job to decide whether a case should go forward. And I think that the prosecutors here bent to public pressure to proceed on tougher charges than the evidence truly warrants.

The other aspect of this that is just fascinating, that we haven't touched on here yet, is the stand-your-ground defense that is available in Florida. Prior to, I think it was 2005, Florida, among other states, was one of the first ones to amend their self-defense law. And prior to the amendment, you had the right to defend yourself but you also had an obligation to retreat if you could safely do so. And the amendment in 2005 did away with this duty to retreat. And it said, you can stand your ground even if you could safely retreat, if you reasonably think you're facing death or serious bodily harm. And law enforcement officials were very much against that amendment, that it encouraged vigilantism, and I think that that has absolutely been proven to be true in this case. It's much too broad of a defense.

MARTIN: Let's give Paul Butler the final word here.

BUTLER: Sure. So thinking about race and criminal justice, we're often used to thinking about African-Americans being the victim of over-enforcement of the law. I've been here a lot, Michel, talking about how many African-Americans are locked up. This is a case about under-enforcement of the law, about the failure of the law, often, to protect African-American victims. So I think it's a shame that - but for the advocacy of Trayvon's parents, this case would never have been brought, so that's one.

The other last thing is just how complicated race is in 2013 with one African-American president, and 1 million black people in prison, and many, many black victims of homicide, by both blacks and whites. So race stuff changes, but it remains really important in shaping people's world's views and their experiences.

MARTIN: Paul Butler teaches criminal and race relations law at Georgetown Law. He was kind enough to join us in our Washington, D.C. studios. Pamela Bucy Pierson teaches criminal law and procedure at the University of Alabama School of Law. She joined us from Alabama Public Radio. Thank you both so much for joining us.

BUTLER: Always a pleasure.

BUCY PIERSON: Thanks. Transcript provided by NPR, Copyright NPR.