Hearing about the Trayvon Martin case, I can't help but think about a past Moglen discussion. His observation that the criminal justice system is just to the poor and kind to the rich can also be applied to how races are viewed in the court system and in public opinion. I was baffled in a recent Matt Lauer interview of Trayvon's parents. At one point he urged the family to not "jump to conclusions" and pass judgment on Zimmerman. Ummm...what?? Some cases are murky. Some have grey areas and nuance. What is so striking about Trayvon's case is the lack of nuance. I don't think there's been a case so public in recent years that has in fact be so void of complexity.

Somehow, I cannot fathom Matt Lauer asking a set of grieving white parents to not "jump to conclusions" had a hefty black man with a criminal record stalked their son, used a racial slur against the unarmed son who had no criminal record, shot the son to death as his screams were heard over the phone, admitted to killing him, and walked away a FREE man. The incident happened 3 weeks ago--asking for an admitted murderer to at least be arrested has nothing to do with giving any benefit of the doubt. Rather, it's been a burdensome, fatigued crawl that the family has had to endure to reach any type of conclusion, and they still have not been afforded a semblance of one. The only people who jumped to conclusions were the officers who decided to be the judge and jury by not even arresting the killer. With more and more spilling out about the case to implicate both the murderer and the police department, he has still yet to be charged!

So indeed, too often the court system and the white public want to be "just" against black folks. It was not too long Michael Vick was charged, convicted, and imprisoned for his connection with the death of his dogs. A largely white NFL following continued to demonize Vick after he served his time and PETA was at the forefront of the organizations expressing their outrage. Where is the outrage by mainstream organizations now? Aside from news media (who caught wind of this only after progressive organizations refused to let this case die), why are only progressive groups and practically only black folks blowing up my facebook feed expressing the egregious injustice of this senseless death?

Kind is an understatement.

-- MalaikaJabali - 21 Mar 2012

I think this is a prime example of executorial discretion guiding the legal system. Law has hardly entered the stage, and police discretion decides the case. I think we are accustomed to seeing this work the other way, where prosecutorial discretion is used to the disadvantage of a suspected perpetrator rather than the retribution interests of those who believe a wrong needs to be recompensed.

The more discretion allowed, the weaker the law is within the legal system and the more room there is for other forces to control outcomes. Prejudice, bloodlust, and personal idiosyncrasies can prevent "the law" from being applied. I think you are entirely right, in that justice for the poor and kindness to the rich in social and public sentiments further augments the law's already (possibly) biased text.

-- AlexKonik - 28 Mar 2012

Alex's point reminds me of an article I read (it is an unpublished article, so no link) that discussed how although laws concerning consent with regard to rape is often sufficient, they are often not followed, thereby losing their effectiveness. Intake police officers would exercise their own prejudices during the intake process and may dismiss cases as lacking basis. This extends to judges as well, who also exercise their own prejudices. And yet, on the other side, we hear concern for the men who might be falsely accused. Although I am sure there are some instances in which an accusation of rape is false, I think that this example is highly analogous to society being "just to the poor and kind to the rich." And, it is another instance showing law as a weak force.

The disadvantaged members of our society are silenced in many ways, mostly by social forces that have nothing to do with the law. I think that is partly why some people have a hard time accepting, in cases such as Trayvon's, that such a horribly unfair thing could happen - because they have never experienced such "justice" themselves, and it is easier to deny it.

-- AgnesPetrucione - 27 Mar 2012

This situation underscores the argument that the law isn't as powerful of a mechanism of control as socio-cultural influence; in fact our perceptions of race and class are strong enough to dictate to whom the law should apply. The more comfortable thing for a white, upper-middle class person would be for people of color to wear clothes that look more like theirs; to bring their faces from behind their hoodies to make sure they're not concealing themselves for a more devious purpose; to force them to walk on the other side of the street late at night to avoid the panic that the media has told white people (and particularly females) they should harbor.

The law couldn't make as strong of a threat to people of color--telling them to "act like they should or else"--than as making an example of a black kid that was shot for wearing a hoodie, carrying candy and tea, and trying to evade a creepy follower. This case sends a message to young people of color--and to concerned parents--that they should adapt their sartorial choices and vernacular to mitigate the panic and fear of others--even when their behavior doesn't logically (or even reasonably) evoke those feelings.

This reminded me of People v. Goetz, where a white man was found not guilty for shooting four black teenagers on a subway that asked him for $5.00 because he thought they were robbing him. He shot all four, and upon seeing he missed one after surveying the scene, went up to the boy and finished the job. Resulting in an opposite outcome, John White, a black man that defended his family against a white teenagers that harassed them with racial epithets and threats of physical violence at his home, was found guilty of manslaughter when he shot and killed one.

We all carry archetypes and biases about race, as a result of the internet, TV, movies, books, pop culture, history, our upbringings, our socio-economic class, our sexuality, our gender, amongst many other influences. It seems like these perceptions of race are not only stronger forms of social control than the law, but they're enough to alter the applicability of the law itself.

-- AjGarcia - 28 Mar 2012

I agree with much of what's been posted here about the Trayvon Martin case. What do you think of the possible benefits/faults of a DOJ Investigation?

-- DavidHirsch - 30 Mar 2012

I think AJ's post is largely correct. In my first paper, I wrote about how despite all the evidence Professor Moglen has tried to present to us to the contrary, I still adamantly believed that the law is a powerful form of social control. But the Trayvon Martin case, as well as the cases we've been reading recently in Criminal Law that AJ succinctly summarized, has forced me to consider otherwise.

My question now is just how effective public interest lawyering can really be on its own- and how much I can do for the Trayvon Martins of the world by merely going to work for an NGO upon graduation. As a former humanities student, I used to feel ambivalently towards peers who would- with no self-consciousness, whatsoever- say things like "art is not a luxury." Adrienne Rich, one of the thinkers who has inspired me most, likened a society's need for socially conscious and transformative art as being on a par with a society's need to provide its citizens with affordable food, shelter, and healthcare. But as much as I believed in the arts, I simply could not bring myself to believe that a novel, a poem, a film, or any other socio-cultural artifact could be a more practical way of effecting social change than "the law."

I think I'm starting to realize that it's not enough to be an uncreative lawyer that merely "does law" because the the law doesn't do any of the heavy-lifting at all. The uncreative lawyer merely facilitates the only power the law really has, that is, to impart a veneer of legitimacy to what much of the populace already deems legitimate. Perhaps being a creative lawyer, then, requires doing more than just law, finding out what other disciplines can teach us about the society we live in, and seeing the law as merely one more tool to be used in conjunction with others.

-- RumbidzaiMaweni - 01 Apr 2012

RumbidzaiMaweni? , I love your last point about what it means to be a creative/uncreative lawyer: the idea that an uncreative lawyer merely does law, which is inherently weak. I want to compare it to the "bad man" idea that we heard a while back. I may be using it wrong, but as I understand it the idea is that bad men / bad lawyers / uncreative lawyers focus very narrowly on their work. They merely do law, and they do it for the paycheck (like Wylie and Cerriere and the narrator in Bartleby, assuming I understand those readings correctly). This renders their work unimportant and weak. Unimportant because they're not using the law to it's fullest extent (like, say, Tharaud) and weak because their work relies solely on the malleable law and not on stronger social grounds.

Anyhow, to bring us back to the Trayvon Martin case, I actually disagree with MalaikaJabali? (sorry Malika). I think that this case is murky because we don't know what happened. Who struck first? Did Zimmerman actually have injuries? Who was the person screaming on the phone? Unless I'm oblivious to some recent developments in the case, these things are all unknown. Of course, this isn't to say that the actual result (no investigation) is okay. An investigation would help clear these questions up and bring clarity to what is a murky situation. Maybe it'd turn out that Trayvon was beating Zimmerman up before he was shot. Maybe it'd turn out that Zimmerman shot Trayvon from a distance without any provocation. At this point, I can't say for certain. I probably would like to see some sort of investigation, though.

On the other hand, the police department has said that there is no probable cause to arrest Zimmerman, and without probable cause they can't do anything. As a law student, probable cause sounds like sexy legal term that carries a lot of weight and meaning. And maybe it does. Maybe there's some five part test which I should know but I don't because I've rotted my memory with facebook and twitter. In any case, the police department claims that it's investigation has shown that there's no reason to arrest Zimmerman. Now, as someone whose investigation of the case extends to quickly skimming the wikipedia article and various NY Times articles, I can voice my opinion that I think Zimmerman sounds guilty as sin... but I'm not sure that I'm qualified to set myself of the arbiter of what should and shouldn't be done by the police in Florida.

To sum up, I think that at best we can say that I have a hunch that Zimmerman ought to be arrested, but I also don't know for certain and I do acknowledge the greater expertise of the Sanford police in this case, as they've actually done the investigation. At the end of the day, I feel uncomfortable asserting that a man should be arrested just because a lot of people who have only vaguely researched the facts think he should be. To use a racial analogy, it sounds kind of like a lynch mob.

-- KensingNg - 02 Apr 2012

Kensing,

I think everyone recognizes the value of an investigation given the facts of this case. My problem, and what I think Malaika points out in the initial post, is that the police did not conduct the investigation in a timely manner and uphold their duty to apply the law equally. They seemed to take Zimmerman at his word about what had happened in his run-in with Trayvon and made no apparent effort to identify the validity of his version of events until people organized themselves over social media to express outrage, the mainstream media picked up on the story, and the DOJ then forced the issue. At that point, the evidence was stale and any investigation was going to be less useful: Zimmerman had time to solidify his story, whereas in the aftermath the police may have been able to identify inconsistencies; the physical evidence at the scene deteriorated by the time they started looking into the events; and the memories of any potential witnesses and those who were around Zimmerman in the following days would be less fresh. I agree with Malaika that it is much less likely that they would have conducted the investigation in such a manner had the races of the individuals been reversed.

In my view, this case is an example of real people knowing what the real truth is, as Judge Day suggested in today's reading. Probable cause to arrest is a legal fiction and it is not what people are demanding. The wrong they have identified is that this investigation (or lack thereof) was conducted in a blatantly sub-par way. Perhaps the police were being prejudicial or racist, as many seem to think, or perhaps they were just lazy. Either way, because of this inexcusable error it may be too late to gather the kind of evidence our justice system (the lawyers) require to prove what happened beyond a reasonable doubt. People are right to be angry that the system may have missed its window to do justice and to care that a legal fiction is intervening when what is right is what matters.

-- JessicaWirth- 03 Apr 2012