Will the outcomes prove similar as well?
As the preliminary hearing gets underway in Georgia for Travis McMichael, Greg McMichael and William Bryan in the death of Ahmaud Arbery, it has not gone unnoticed that the fatal shooting of Arbery, an unarmed Black jogger in February by two White men, bears a striking resemblance to another slaying eight years ago—that of Trayvon Martin.
Both the 17-year-old Martin and the 25-year-old Arbery were accosted by self-appointed White vigilantes who shot them at point-blank range after a scuffle. In both cases, prosecutors initially declined to prosecute and charges were filed only after weeks of sustained pressure from the Black communities in both Deep South states.
In the Arbery case, charges were brought against the McMichaels only following protests and the release of a gruesome cellphone video that depicts a clearly unarmed Arbery merely jogging down a neighborhood street in the city of Brunswick in the southeastern part of the state.
No attorney would’ve called the State’s case against George Zimmerman for murdering an unarmed teenager “airtight.” But prosecutors were so ineffective in the 2013 trial that it left more than a few trial lawyers and legal scholars wondering aloud whether the prosecution didn’t intentionally lose the case.
In a 2016 law review article, Boston College law professor Mark Brodin wrote that prosecutors in Florida bungled the Trayvon Martin case by “committing the most inexplicable strategic and evidentiary blunders of a type that experienced prosecutors would very likely not commit in a more earnest effort to convict.”
Of the prosecution’s many missteps, Brodin wrote that the most damning might’ve been the failure to “to convey to the trial jury this simple narrative of racial profiling and stalking by a vigilante not acting under color of law.”
Calling the trial an “homage to racial vigilantism,” Mark K. Spencer, a former deputy state’s attorney in the Washington D.C. suburbs, concurred with Brodin’s assessment of the prosecution’s failure. “The Trayvon Martin case represented one of the gravest miscarriages of justice I’ve ever seen,” he said.
The default position of the criminal justice system, according to Brodin and many other attorneys, is to reflexively protect the killers of Black males, particularly if they are law enforcement officers or their surrogates. This raises a profound question as the state of Georgia prepares to try the McMichaels: Are prosecutors in it to win?
In an email to the Spokesman-Recorder, Brodin wrote: “This ‘playing to lose’ strategy is a theme that runs through many ‘prosecutions’ of White police or vigilantes who have killed Black men. As you know, there are structural and institutional barriers that interfere when police officers commit crimes, as they are viewed as part of the ‘law enforcement team’ by prosecutors.
“And then systemic racism (tainting judge and jurors) often raises its ugly face at the trial when it’s a White cop and Black victim. Thankfully we have a few progressive prosecutors (Philadelphia, Boston, Brooklyn) who are starting to fight the influence of race and class in our criminal justice system, but they are clearly the exceptions.
“The result has been a greenlighting of gross police misconduct across the nation.”
Zimmerman was, of course, only a police “wannabe” although he was friendly with patrol officers in the community. The elder McMichael, on the other hand, was a retired officer who had worked as an investigator with the local prosecutor’s office.
The Thin Blue Line
The video of the assault on Arbery is damning but it is not, in and of itself, enough to win a conviction, explained Spencer, who presently serves as inspector general for the Prince George’s County Sheriff’s Department. The often cozy relationship between prosecutors and police tilts the playing field in favor of law enforcement, he said.
During his early days as a prosecutor nearly 30 years ago, he said it was not uncommon for the prosecutors to encourage defendants to sign a waiver absolving police officers of any liability for the use of excessive force or other misconduct.
“The challenges with accountability for potential acts of police misconduct were, are, and will always be problematic because of the structure of our justice system,” Spencer said. “In my experience most prosecutors avoid being assigned police accountability cases because there has been little reward in pursuing them. The cases are always difficult to assess and present because each of the working parts involves many sometimes interlocking relationships.”
He continued, “Imagine prosecuting a case where the police are the principle or only source of evidence. The police were the first responders to a crime scene or complaint. The police control the crime scene and the quality and quantity of evidence that is collected.
“And the police are potentially the principal witnesses or sole witnesses to an event that may have included police misconduct. Trying to pierce the ‘Thin Blue Line’ is mostly a daunting task.”
The Martin case is by no means unique. When the Bronx district attorney in 2000 failed to procure a conviction against four New York City police officers for the fusillade of gunfire that killed an unarmed African immigrant, Amadou Diallo, some immediately questioned whether the State intentionally undermined its case to shore up support for the City’s aggressive police tactics.
One African American juror, Lavette Freeman, told reporters at the time that she understood the protests that followed the verdict, but jurors felt they had no choice but to acquit. ”I have to take it back to the district attorney’s office. They didn’t give me anything. Nothing.”
Another complication in the case against the McMichaels will undoubtedly be the state’s “Stand Your Ground” statute, which was cited by the original prosecutor in the case, George Barnhill, in declining to pursue charges.
Stand Your Ground effectively overturns a legal principle dating back to 17th century British common law requiring that a claimant demonstrate a defensive posture before using lethal force. The Castle Doctrine, however — a man’s home is his castle — provides an exemption in the case of an intruder or burglar.
Stand Your Ground laws expand the legal justification for lethal self-defense and give prosecutors broad discretion to apply the law. While Zimmerman’s lawyers did not rely on Florida’s Stand Your Ground law in their defense, jurors in Martin’s murder trial were instructed to consider the law in their deliberations. “Trayvon Martin was betrayed by the entire American legal community,” decried Spencer.
Jon Jeter welcomes reader responses to email@example.com.