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March 27, 2012 10:40 AM Trying the Victim

By Ed Kilgore

Anyone familiar with the history of how rape cases are prosecuted and defended should recognize the M.O. of conservative opinion-leaders who are pushing back against the furor over the death of Florida teenager Trayvon Martin: blame the victim. And so we are being treated to an assortment of facts, half-facts, assertions and inventions about the kid’s questionable character and alleged misdeeds, none of which, of course, involves behavior punishable by the death penalty.

Aside from trying to undermine public sympathy for the victim, and growing sentiment against the permissive gun laws that seem to have encouraged George Zimmerman to play cops-and-bad-guys with a real-live hand cannon, the idea is to plant the suggestion that Trayvon Martin “asked for it”—a thuggish “youth” (itself a racially-tinged code word) wearing a thuggish hoodie roams the streets of a gated community after being booted from school on drug charges, hungry not just for Skittles and iced tea but for a confrontation. And he got one, and thus got what he deserved.

A lot of this stuff is clearly coming from the police who failed to make an arrest and the prosecutors who concluded Zimmerman was protected by the Stand Your Ground law. Now let’s be clear: that law, bad as it is, does not say anyone claiming to be interested in protecting his neighborhood can stalk, aggressively confront, and then execute anyone looking suspicious or inspiring—rationally or not—fear. What it does essentially do, however, is make the use of deadly force in an ambiguous conflict vastly less culpable. Once blows are exchanged, a gun is not necessarily any different from a fist, a foot, or anything else that can inflict serious physical damage.

But for there to be any clear-cut legal protection for Zimmerman, making even an official investigation of the facts unnecessary, you have to believe, somehow, that the guy with the SUV and the gun was defending himself against the guy with the sneakers and the Skittles. And so the implausible but not impossible story is circulated whereby Zimmerman “investigated” Martin, retreated to his car intending to go his own way in peace, got ambushed by this “youth” on a rampage, and then had to use his “equalizer.”

Maybe that’s how it actually went down, but it’s hard to imagine that the facts so clearly establish that’s how it actually went down, to the extent that the police had no reason to arrest Zimmerman and the prosecutors were helpless to put together a case against him. And it’s hardly reassuring that said police and prosecutors aren’t putting out their side of the story in sworn public statements or an official proceeding, but are instead leaking it to the press in hopes the more obvious interpretation of the situation can be undermined.

And so the dead kid gets put on trial in the court of public opinion, less to protect Zimmerman than to vindicate the public servants who seem to have taken one look at the situation and decided Trayvon Martin was indeed “asking for it.”

Pseudo-journalist Geraldo Rivera was indeed prophetic in fixating on Martin’s apparel in expressing sympathy for his killer, sounding exactly like the men who figure any attractive woman who gets raped must have been “asking for it.” It’s a saddening and maddening pattern.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • POed Lib on March 27, 2012 10:51 AM:

    The "stand your ground" statute is unconstitutional. The Second Amendment states "A well-regulated militia". Regardless of what you believe "militia" to mean, the "well-regulated" part is certainly not a component of "stand your ground". It is "unregulated". Someone needs to take this law on from the constitutional standpoint.

  • Walker on March 27, 2012 10:52 AM:

    To be fair, this has always been Geraldo's schtick. I had almost completely forgotten about him until this incident.

  • Curious on March 27, 2012 10:52 AM:

    Just out of curiousity, what happens if what happened is that Martin felt he was threatened by Zimmerman. Wouldn't the 'Stand Your Ground' law then defend any action taken by Martin in 'self-defense' against Zimmerman? So even if Zimmerman was 'defending himself', if that was because Martin was 'defending himself', too, would that negate the 'Stand Your Ground' defense by Zimmerman if any action that might have been taken by Martin would have been protected by the same law?

  • robert mcclellan on March 27, 2012 11:02 AM:

    The prosecutor may find himself in a bad situation if this goes to trial; he has no official statement and no gunshot residue test.

  • cal on March 27, 2012 11:04 AM:

    I'm wondering the same thing as Curious. Doesn't Martin get to stand his ground? Someone came at him aggressively and if he feared for his life than by the rights of the Stand your Ground Law Martin had a right to fight .
    Couple of things: Can you only stand your ground if you have a gun? Or if you're white? I think this law shows the pernicious thinking of conservatives/NRA etc. It's a relentless drive to distill fear to divide people and to make people fear the "Other" They have created a society where we need to fear each other and then shoot/kill 1st and the person left alive Stood His Ground. Not that we should deal with each other through trying to understand each other through trying to de-escalate conflict but to ramp.

  • BillFromPA on March 27, 2012 11:06 AM:

    Quote: 'Pseudo-journalist Geraldo Rivera was indeed prophetic in fixating on Martinís apparel..'

    He wasn't being prophetic, he created the opening, and cover, for the vile wingnuts to blame the victim. He justified his existence on Fox.

  • Sgt. Gym Bunny on March 27, 2012 11:08 AM:

    So even if Zimmerman was 'defending himself', if that was because Martin was 'defending himself', too, would that negate the 'Stand Your Ground' defense by Zimmerman if any action that might have been taken by Martin would have been protected by the same law?

    Nope. In order to claim Stand Your Ground, you merely have to be the last man standing. Duh! Since dead people can't speak, they can't claim any defense. If there dead, God obviously instituted divine justice against evil.

    Sorry for the agressive snark. But SYG sends the wrong message about who can and can't claim reasonable self-defense (at least to this woman of the lay). The way they're treating these cases in Florida is as if the victim doesn't even have a voice to be heard in a court of law.

    Does anyone know if the SYG defense has been successfully challenged in criminal court before? As of now, the media has me believing that once someone hits the SYG button, there automatically deemed "safe" from further investigation/prosecution.

  • Curious on March 27, 2012 11:12 AM:

    Sgt. Gym Bunny -- the reason I ask is because I am wondering if the SYG becomes self-contradictory in these (or essentially any) situations. If the SYG law negates itself, then it should be possible to get it thrown out on the grounds that it's basically stupid and badly written -- impossible to apply -- without getting embroiled in ideological/political entanglements.

  • Bob Geo on March 27, 2012 11:12 AM:

    @Curious Good point. There's only one survivor from the incident. The major points in the Orlando Sentinel story yesterday were from unnamed, unquoted police sources and "what the Sentinel has learned.." Leakers often have agendas. I'm waiting for official word from police and/or prosecutors on what they're willing to stand behind. For now I assume that if there was exculpatory info for Zimmerman in Martin's pharmacology post-mortem it would have been leaked. Since it hasn't, someone put "drugs" into the story with the trace of pot.

  • Danp on March 27, 2012 11:12 AM:

    And itís hardly reassuring that said police and prosecutors arenít putting out their side of the story in sworn public statements or an official proceeding, but are instead leaking it to the press in hopes the more obvious interpretation of the situation can be undermined.

    You might think Zimmerman isn't the only one accused of a crime. The question is why they would even be allowed to continue in this case in any capacity. They didn't even take away the gun?

  • emjayay on March 27, 2012 11:16 AM:

    Obviously the actual evidence - which no one now knows about - in this case will paint a more accurate picture of what happened in the moment. For now, tapes of Trevon screaming up to the second he was killed seem to be a bit damning, unless it is the attacker rather than the victim who does the screaming, which seems unlikely.

    On the other hand, maybe we'll get the dueling forensic experts we all (if you were around and paying too much attention) saw in the O J Simpson case. I remember some apparently top crime expert Chinese guy saying the blood evidence made it impossible that OJ did it, seemingly contrary to any normal logic or usual pattern of behavior.

  • Neil Bates on March 27, 2012 11:22 AM:

    Martin may indeed have tussled with Zimmerman, and first, but that is not really the main point. First, Z. was told by Dispatcher "don't follow him" - not force of law but still a warning from official contact. Since Z followed Martin, IIRC even the writer/promoter of the SYG law said that Z lost his "rights" under that law. (IOW, Z was not standing at bus stop when some punk starts hassling him.) Indeed, from phone records of call to Martin's GF, he is saying "why are you following me" etc, then Z says "what are you doing here" then struggle, then shot/s IIRC.

    But the real problem is the police response. As conservatives know, the burden of proof is on *defendant* to show excuse etc, rather than if "did acts." They should have arrested Z, not taken his word, where is picture of his bloody nose (and he is around 90-100 pounds heavier) etc. They had no right cause to dismiss case because they could *not find* evidence that Z's story was *wrong* - instead, Z had to show he had excuse in a public place after pursuit, not in his home etc.

  • emjayay on March 27, 2012 11:23 AM:

    It's immaterial anyway, but a big percentage of high school students, and this includes all of them in any socioeconomic class, might have a baggie on them with traces of pot in it. It hardly indicates that he was dealing, only that he was typical.

    Under what circumstances was it found anyway?

  • Jan on March 27, 2012 11:24 AM:

    Thank you. You described this attempt to blame the victim perfectly.
    I hope your post is read wide and far!

  • Neil Bates on March 27, 2012 11:27 AM:

    BTW I do not think the SYG law itself is to blame here, as I noted: Z improperly exercised the rule anyway. If you *really are confronted* either at home etc or MYOB, I don't see that you should have to run away.

  • Kathryn on March 27, 2012 11:29 AM:

    The obvious corruption in this country is becoming unbearable to me. The Sanford cops are obviously blaming the victim and covering their own asses, the woman who wrote the article in the Orlando paper presented Zimmerman's story as fact not as his account, open to scrutiny. Now predictably, the right wing media is jumping on the band wagon, they've scrounged up an African-American defender of Zimmerman, there is no forensic evidence due to incompetence, the fix is in, just another day in America, the former land of the free and home of the brave.

  • Josef K on March 27, 2012 11:36 AM:

    Itís a saddening and maddening pattern.

    You've just encapsulated the entire human race in those six words.

    Like most here, I'm not even remotely surprised by these developments, except this time I don't think it'll stick as well as in the past. Time will tell.

  • N.Wells on March 27, 2012 11:42 AM:

    Apparently Cheney is not the only Republican in need of a heart. Perhaps he could share with all his pals.

    Of course the "stand your ground" law would have given Trayvon at minimum an equal right to blast back in self-defense had he been armed. The fact that so many on the right are implicitly assuming that it only applies to white victims defending themselves speaks sorrowful volumes about the extent of race-based prejudgment in this society. Amidst all the mud-slinging and red herrings being flung in defense of the shooter, people need to remember only that someone who supposedly needs to shoot an assailant because they are in fear for their life does not go chasing off after the "assailant" because of a worry that the "assailant" is getting away.


  • left reach on March 27, 2012 11:42 AM:

    "New details from the night Trayvon Martinís death are emerging, and law enforcement officials have hinted that there is a recording of a 911 call placed by Trayvon moments before he was shot and killed. One radio station in Chicago is reporting that the FBI is attempting to enhance the audio, and that shooter George Zimmerman can be heard in the background."

    From thinkprogress.org with link to radio station

  • Steve P on March 27, 2012 11:42 AM:

    It's too horrific to joke about, but I thought at once about the old subway bump-"Give me the wallet!" story. And Zimmerman's friends brought up the "Barney Fife" meme, though it may have been more along the lines of Gomer trying to arrest Barney for double parking: "Citizen's arrest! Citizen's arrest!"

    I'm waiting to see Carl Hiassen's take on the whole thing, what with him being the explicator of the open air insane asylum that is Florida.

  • Sgt. Gym Bunny on March 27, 2012 11:44 AM:

    @Neil Bates: As conservatives know, the burden of proof is on *defendant* to show excuse etc, rather than if "did acts."

    In researching the answer to my own question above, I came across an judicial interpretation of SYG. And, unfortunately (for all of us), SYG suggests the opposite of what you said: It's up to the prosecution, not the defendant, to prove that the accused was not acting in self-defense.

    From Mother Jones: Numerous cases have set the precedent in Florida, with the courts arguing that the law "does not require defendant to prove self-defense to any standard measuring assurance of truth, exigency, near certainty, or even mere probability; defendant's only burden is to offer facts from which his resort to force could have been reasonable." When a defendant claims self-defense, "the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense."

    So, because the police didn't thoroughly investigate, the prosecution might as well be climbing a buttered pole trying to prove Zimmerman wasn't acting in self-defense...

  • TCinLA on March 27, 2012 12:14 PM:

    What do you expect to hear from the products of ten generations of Southern "inbreeding"? Hey, the slaves loved being slaves, good wimmin know never to do anything that would set a man off and anyone not white is always "out to get us." Everyone knows the "Stand Your Ground" law is the "shoot a ni**er get out of jail free" card for white people (and has anyone noticed how either Zimmerman is now an honorary white man, or he didn't use the law right because he's a "Mesican"?).

    I was just looking at the 23 states that have this law, not one of which is a place I would ever voluntarily live in, even without that. The stupidity in those places is so widespread it must be "catching."

  • Old Uncle Dave on March 27, 2012 12:25 PM:

    Zimmerman was clearly the aggressor. He followed someone in his car, then left the car, approached, and confronted the victim, with no legal authority to do so.
    TV talking heads are calling him a "neighborhood watch captain," but that is a lie. He's a self-appointed vigilante.
    Here's your bumbersticker: ZIMMERMAN STARTED IT!

  • Diane Rodriguez on March 27, 2012 12:51 PM:

    Seems that the 911 call made by Zimmerman answers any pertinent question that might arise. He was told to cease following the kid and he didn't. He placed himself in the situation without provocation or authority.

  • Kevin (not the famous one) on March 27, 2012 1:13 PM:

    Sgt. Gym Bunny @ 11:44 from Mother Jones

    That is a pretty incredible find. I translate SYG as open season (and make sure the victim can't testify later).

    I've never been to Florida, got as close as east Texas and that was good enough for me.

    unspeet horfes ... indeed

  • Dianne on March 27, 2012 1:30 PM:

    I won't be going back to Florida any time soon. If I were to walk across a motel parking lot on the way to breakfast and some paranoid jerk decided I was a threat, apparently he can just shoot me dead. Since I'm dead, I can't defend myself and say I'm just getting breakfast - no threat to anyone. And the paranoid jerk under Florida law will not even be charged.
    Not the safest place to vacation for sure. I'll stick to Mexico.

  • Quaker in a Basement on March 27, 2012 1:33 PM:

    As of now, the media has me believing that once someone hits the SYG button, there automatically deemed "safe" from further investigation/prosecution.

    Google: Trevor Dooley.

    Dooley is a law enforcement volunteer who shot a man to death two years ago. He has been claiming justification under Florida's SYG law, yet he's still fighting manslaughter charges.

    Mr. Dooley is black. His victim was white.

  • fostert on March 27, 2012 1:34 PM:

    The solution here is obvious: just shoot Zimmerman. Given his history of killing black people and given that we know he's packing heat, any furtive gesture is justification for any black person to shoot him dead in self-defense. After all, it's reasonable to assume he's reaching for his gun. Rather than complain about the law, we should use the law to get the justice Zimmerman so clearly deserves. The law is a license to kill, use it.

  • Tom Maguire on March 27, 2012 1:35 PM:

    Re: The prosecutor "has no official statement and no gunshot residue test."

    Huh? Zimmerman was interviewed at the station house that night and subsequently. As to the gunshot test, maybe he has one, or maybe not - would it be evidence that Zimmerman did in fact shoot Martin? That is hardly a fact the defense is likely to dispute.

    As to the notion that Martin should have killed Zimmerman and pleaded self-defense against the scary large guy with the gun - well, yes. There is a reason the critics call "Stand Your Ground" the "Shoot First" law.

    Finally, coming back to the original post:

    "And itís hardly reassuring that said police and prosecutors arenít putting out their side of the story in sworn public statements or an official proceeding"

    Huh? Grand jury proceedings and criminal investigations are always secret. If they don't go to trial (and they very well may not) just what mechanism is proposed to dump this file into the public domain?

    And remember - not so long ago it would have been Bush and Ashcroft deciding what Federal criminal investigations to file-dump.

    I'm agog.

  • SecularAnimist on March 27, 2012 1:55 PM:

    The "Stand Your Ground" law leads to gunfights in the street between individuals carrying concealed handguns who believe that other individuals who may also be carrying concealed handguns may be "threatening" them.

    From the point of view of the NRA, this is a feature, not a bug.

    More people will become afraid -- for good reason -- that those around them are armed and menacing. Some of those people will respond by arming themselves. This results in more fear. This results in more people arming themselves with concealed weapons.

    And so the cycle continues -- resulting in ever more profits for the weapons corporations.

    And of course, a bloodbath in America's streets. But that's a small price to pay for corporate profits.

  • Sgt. Gym Bunn on March 27, 2012 3:19 PM:

    Re: Trevor Dooley

    Damn... Great that loosey-goosey gun-toting is being challenged, but cruddy context if one were to speculate as to the reason why Dooley is one of the few to unsuccessfully (thus far, at least) use the SYG defense. I will offer no comment to the latter issue...

  • Kuji on March 27, 2012 4:35 PM:

    Ed,

    Do you think a black man who is part of a neighborhood watch who shot and killed a white teen wearing a long overcoat like the trench coat mafia that gunned down Columbine highschool students would be treated the way this situation was treated? Would the "he was asking for it" stand up to public scrutiny?