Commentary: Stand your ground or stand by your man?
The article first appeared in the St. Louis Beacon, July 25, 2013: Though my writing is usually published on Thursday, the last one ran early. It dealt with the Zimmerman verdict and my editor decided to post it on Monday while the subject matter was still topical. Turns out, she needn’t have worried about its shelf life.
Immediately after sending it in, I left for the annual family retreat in northwestern Michigan.
This year’s attendees included four daughters, two sisters, three nieces, a nephew, a brother-in-law, a couple of said daughters’ boyfriends, another daughter’s best girlfriend, my mother and an ex-wife. Counting me, that made for 17 people and 8 dogs sharing 2 houses on a remote stretch of beach for 1 week. A challenging math problem.
The purpose of the exercise is two-fold: 1) to see who can make it the longest without impersonating Jack Nicholson in “The Shining” and 2) to take a breather from the wired-in world. There’s no cell service, no internet, no television, not even a newspaper delivery. Just wind, sand dunes and splendidly blue water to pass the days.
Deprived of the static we’ve become accustomed to, people revert to literacy. Everyone brings a book and, as the days pass, a brisk trade in used reading material develops. One volume I bargained for this year was Jon Krakauer’s “Where Men Win Glory,” which relates the tragically true story of Pat Tillman.
Tillman was the NFL strong safety who turned down a multi-million dollar contract extension from the Arizona Cardinals to join the Army Rangers with his brother Kevin in the wake of 9/11. He was killed in action two years later in Afghanistan.
Tillman not only sacrificed a lucrative career to serve as an Army grunt, but he turned down the offer of an early discharge — and a return to professional football — after a tour of duty in Iraq during which he played a supporting role in the “rescue” of Pvt. Jessica Lynch. That he was a patriot is beyond dispute; ownership of his memory, however, proved to be another matter.
The Army posthumously promoted Tillman to the rank of corporal and awarded him the Silver Star for his actions on the day of his death. Initial reports had him fearlessly leading an assault on a heavily defended enemy position when he fell. Kevin, who served in the same platoon as his brother, was immediately skeptical.
Eventually yielding to relentless pressure from his bereaved family, the Army reluctantly admitted that Tillman had been killed by friendly fire. He died during an ill-conceived and confused mission, trying to signal his fellow Rangers that they were shooting at one of their own. As with the Jessica Lynch case before this, officials with an agenda of their own had tried to fabricate a comic book hero out of a real human being to gin up support for the war effort.
I left Michigan mulling the plight of people exploited for political purposes. Tuning my car’s satellite radio to cable news, I planned to catch up on current events during the long ride home. Alas, I soon learned that the Zimmerman verdict was still a 24/7 media obsession.
When I’d left for vacation, the big contretemps revolved around Florida’s controversial “Stand Your Ground” law. That statute was invoked by neither side during the trial itself because, after all, Trayvon Martin had the same right to stand his ground as did George Zimmerman. But it did have a subtle influence on the legal reasoning involved.
A defendant claiming self defense posits what lawyers call an affirmative defense — he admits the act but denies the requisite criminal intent. Historically, the claimant of self-defense had to demonstrate that he had no alternative but deadly force to escape harm. But in this case, the judge instructed the jury that the defendant had no duty to retreat, thus shifting the burden of proof back to the prosecution on that issue.
The new development I heard on the radio was a call for federal prosecution by supporters of the slain teenager. Gun rights proponents, on the other hand, contended the accused had been duly tried and acquitted and the matter was now closed. Interestingly, the traditional political polarities were thus reversed — liberals demanded vengeance while conservatives preached forbearance.
Under the doctrine of dual sovereignty, a person can be tried in both state and federal court for the same incident if there is credible evidence to indicate that his actions violated both a state and a federal statute. (For a detailed discussion of this legal precept, see Bill Frievogel’s excellent dissertation in the Beacon.)
Zimmerman had already been acquitted of murder in state court so a retrial in that venue would violate his constitutional protection against double jeopardy. For him to be charged federally, the government would have to demonstrate that he either deprived Martin of his civil rights while acting under cover of law, or that he committed a hate crime.
As Zimmerman’s critics were quick to point out initially, he was a neighborhood watch volunteer with no legal authority whatsoever. He thus couldn’t have acted under color of law.
To win a hate crime prosecution, the government would have to prove that Zimmerman intentionally killed Martin because he was black. That development is unlikely because no evidence has ever been put forward to indicate that Zimmerman acted out of racial animus and he called 911 before acting. As I noted last week, people who plan to commit a crime usually don’t invite the police to the scene to witness the event.
Of course, legalities do nothing to mitigate the visceral tragedy that took place between two imperfect humans on that rainy February night in Florida. For the victim’s family, the loss is too grave and immediate to be dispelled by nuanced reasoning.
But the public fixation with the case better recalls the memory of Tammy Wynette than that of Justice Brandeis because it has less to do with the legality of standing your ground than it does with the basic instinct to stand by your man.