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How Zimmerman Could – and Should – Have Been Convicted Under Florida Law

By Rob Hager | Black Agenda Report | July 31, 2013

Many people are troubled by the idea that someone can willfully follow another person down the street, right to the person’s own home, have malicious intent, put the followed person in fear or apprehension, kill the person, and then not be held guilty of some criminal offense that includes at least some responsibility for the killing, even if perhaps unintended.

Juror B29 in the Trayvon Martin murder trial has expressed the feeling on behalf of the jury that many of us are also experiencing: “in our hearts we felt he was guilty,” she said. “George Zimmerman got away with murder … [But] the law couldn’t prove it.”

On the facts the jury knew, shouldn’t there be a law that can “prove it?”

Actually, there is such a law. In Florida: “A person who willfully, maliciously, and repeatedly follows [or] harasses … another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.” Fla. Stat. § 784.048.

“Willfully [and] maliciously” are evidenced by Zimmerman’s own words to the police dispatcher. The word “repeatedly” is not defined in the Florida statue. But the statute does define the similar term, “course of conduct,” “[which] means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” So “repeatedly” as used in the statute might simply mean “continuously” or “sustained.” George Zimmerman did sustain his following of Trayvon Martin “over a period of time, however short, which evidence[d] his continuity of purpose” in targeting Trayvon Martin to challenge his presence in the neighborhood. Indeed he repeated his following of Martin even after the dispatcher told him he did not need to do that.

Such stalking may be motivated to get the targeted person out of the neighborhood, to bully, to feel physically superior to another person for an ego boost, to look for a fight or confrontation, or any other reason. If it was intended to and did credibly threaten a 17 year old who is on the street alone at night, that is a felony in Florida. Zimmerman apparently had sufficient experience with such matters to know the effect his behavior would have.

Each state has different laws covering this issue. Before stalking or felonious menacing laws were enacted this offense would come within the general meaning of assault. Acts that are intended to and do put another person in reasonable apprehension of immediate physical harm constitute the common law crime and tort of assault. Following someone in a threatening way that puts them in fear or apprehension is one way of committing an assault.

Ohio’s stalking law contains additional detail that identifies the specific aggravating circumstances that generally concern people about the Trayvon Martin case.

Ohio law provides:

“2903.211 Menacing by stalking.

“(A) (1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person.
“B)(2) Menacing by stalking is a felony of the fourth degree if any of the following applies: …

(d) The victim of the offense is a minor.

(e) The offender has a history of … other violent acts toward … any other person.

(f) While committing the offense … the offender had a deadly weapon on or about the offender’s person or under the offender’s control.”

This pretty well describes the specifics of the wrong that many are concerned that George Zimmerman actually did commit. Criminal law is intended to protect not just victims, but society’s interests. Society does not want people with a known propensity for violence going about the streets armed and stalking minors. This is independent of what he or the victim knew about these aggravating circumstances.

Felonious menacing or stalking may not be a serious enough crime to suit the circumstances of loss of life. But in Florida there is a very strict felony murder law that is designed to address just that concern, that when life is unnecessarily lost, even if unintentional, there should be heightened responsibility.

Felony murder laws assure that if Zimmerman started something unlawful – namely felonious stalking – that got out of control for whatever reason, resulting in loss of life, he must take some responsibility for that loss of life.

In Enmund v. Florida, 458 U.S. 782 (1982) the U.S. Supreme Court thought Florida set the level of that responsibility too high. In that case a robbery get-away driver was convicted under Florida’s felony murder law although he did not pull the trigger, did not touch a murder weapon, was not present at the murder scene, did not know about or discuss the prospect of the murders until after they happened, and so had no intent to kill. In the U.S. Supreme Court, four Republican dissenters would have allowed Florida to execute the driver for felony murder anyway, even though all he did was drive and had no intent to kill. But the majority preferred him to have actually participated in the killing in some way if he was to be executed for it, but also would not require evidence of intent to kill.

In Florida, aggravated stalking furnishes a predicate for felony murder. Fla. Stat. § 782.04(1)(a)(1.n) punishes any “killing of a human being … committed by a person engaged in the perpetration of, or in the attempt to perpetrate … aggravated stalking.”

By repeatedly following and then confronting Trayvon Martin, was George Zimmerman attempting to communicate a credible threat to Martin, perhaps that Martin should leave what happened to be his own neighborhood?

Many people think that, whatever his motive, this is what Zimmerman did. Unless there is a civil suit or a retrial on this criminal charge, it will be difficult to determine whether this felony, more likely than not, did happen.

The criminal trial jury was not asked to decide that question. It was led astray by being asked to focus on the end rather than the beginning of the fatal encounter. As juror B29 said about the charges, “a lot of us that wanted to find something bad, something that we could connect to the law, because for myself he’s guilty. … But as the law was read to me if you have no proof that he killed him intentionally you can’t say he’s guilty. … As much as we were trying to find this man guilty…there was nothing that we could do about it.” Distraught about voting to acquit Martin’s killer, she said “I feel I killed him,” but pointed to “the choices that they gave us” as responsible.

If the criminal trial jurors had been given the choice to decide whether Zimmerman was engaged in or attempting felonious stalking prior the fracas that the jurors were asked by the prosecutors to decide upon, then exactly what happened during that fracas that caused the killing, which is not really knowable beyond a reasonable doubt in any event, becomes irrelevant. The purpose of felony murder is to attach responsibility for a killing not because of the killer’s intent or how the killing took place but because it was committed by a killer who was “engaged in” a felony like aggravated stalking. There can be no question that without Zimmerman’s original stalking neither the fracas nor the killing would have happened.

If Zimmerman had been charged with, and convicted of aggravated stalking he would also have been guilty of first degree felony murder, a capital offense in Florida. In that event, in our hearts we along with the jurors, could feel justice had been done. Instead we, like the jurors as reported by Juror B29, are left with the false impression that the law on the books is not written to protect us from a murderer who got a way with it.

But it seems like it is more the judicial system that failed us and the jurors in this case by failing to use the laws on the books. If that failure means the civil right of Trayvon Martin to walk the streets was denied with impunity, a result which makes the civil rights of all of us less secure, then a federal prosecution or retrial on these new charges would be appropriate. For double jeopardy purposes, it is not clear that first degree capital felony murder is a lesser included offense of manslaughter or second degree murder, particularly since stalking was not an element of the latter offenses.

Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief in the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on law reform and anti-corruption issues.

Rob can be contacted at http://www.linkedin.com/profile/view?id=132806564HYPERLINK “http://www.linkedin.com/profile/view?id=132806564&trk=hb_tab_pro_top”&HYPERLINK “http://www.linkedin.com/profile/view?id=132806564&trk=hb_tab_pro_top”trk=hb_tab_pro_top

July 31, 2013 Posted by | Civil Liberties, Subjugation - Torture | , , , | Leave a comment

Whose Ground Is It, Anyway?

By Steve Martinot | Dissident Voice | July 22, 2013

The Travesty goes like this.

The grounds for Zimmerman’s acquittal were that he shot someone, and killed him. Pure and simple.

The grounds for Trayvon Martin’s having been killed is that he decided to defend himself against someone stalking him.

Does it make sense? No. Is it true? Yes.

There’s nothing to understand. That’s just the way it is. But if we do want to understand it, we have to look at the “role model.” Or rather, at The Role Model.

The Role Model is the US, the War Making Power.

The US walks (drives, flies, shoots and bombs its way) into another country under fabricated excuses, and considers anyone who tries to defend their country against this as an aggressor. Hence, Guantanamo is filled with prisoners, never charged with anything because the only thing they did was try to defend Afghanistan against a US invasion. Trayvon Martin is dead for the same reason – that is, Zimmerman invaded his space (acting like the US). With a role model like that, you can’t go wrong. Right?

To act in self-defense is to be the aggressor. Just ask Marissa Alexander. She has a restraining order against her estranged husband. He invades her house and threatens her. She goes out to the garage to get her gun, and comes back into the house to expel this unwanted invader from it. He approaches her, she fires a warning shot into the ceiling, the invader leaves, and she is sentenced to 20 years in prison for attempted murder. She couldn’t claim she was standing her ground because she is a black woman. The fact that this happened in her house meant that she was the aggressor. The judge said that she could not claim self-defense because she left the house and came back in, which made her the aggressor. Had she been acting in self-defense, he said, she would have fled. Her estranged husband, violating a restraining order with the same impunity that the US violates international law in invading countries and torturing prisoners, is the one who can claim to be the victim, standing his ground in her house, which is why she is accused of attempted murder.

Trayvon Martin is walking along, minding his own business, which is why he cannot claim his space of privacy as his ground. The ground belongs to the invader, the one who aggressed against the space of Trayvon Martin’s privacy, and stands on it. The one who defends his space becomes the aggressor.

Have I got that right? Whoever defends their space is a criminal, an aggressor (which is why Trayvon Martin is dead), while whoever invades that space and stands his ground can claim self-defense, and kill with impunity. Racially profiling a black teenager in a hoodie means he is a foreigner in his own space. We have prisons in Guantanamo for such people (unless we kill them first).

War is the role model. For the last 60 years, the US has waged wars of aggression, bombing other countries and landing troops they have trained to be killers on foreign soil – Korea, Vietnam, Panama, Iraq, Afghanistan – while referring to each invasion as “self-defense.”

Invasion is self-defense. Self-defense is aggression. Racialization is equality. Unless you are the racialized.

Zimmerman’s ground, the ground he claimed, didn’t belong to him. He was receiving stolen goods. You know how you steal land from people who do not see it as property? You turn it into property. You mark out a boundary, write that boundary down on a piece of paper called a deed, and sell it. You cannot steal land by picking it up and putting it in your pocket. You steal land by turning it into a commodity. It is a juridical trick, like acquitting a man of manslaughter after he has just slaughtered a man.

Oh, and one more thing to commodify the land, to steal it. You have to stand on it.

Standing your ground is a colonialist notion, since the ground is not “yours.” Not only is it not yours, it is a social space in which ownership cannot be claimed.

Disputes between individuals are personal things, not spatial. To make them spatial is to make them territorial. Any claim to the territory has no legitimacy other than that of force or criminality. Or in other words, colonialism. For Zimmerman to have stood “his” ground is already to be a criminal. Which is enough to get you exonerated of any crime in a colonialist society. Colonialism depends on it.

A beautiful thing happened at the demonstration in Oakland against The Zimmerman Travesty (two days after it happened). We, the colonized (yes, I make common cause under that name), met at the usual place, the plaza whose popular name commemorates the exercise of the police state that occurred at “Fruitvale Station.”

You know why this is a police state? Because you can’t stand your ground against the police. They are the invaders against whom all others are aggressors. The slightest gesture of dignity or self-respect will get you beaten to the ground, arrested for resisting arrest and assaulting an officer, and possibly killed. Guess who the police arrested at the demonstration I am speaking about. A photographer, plying his trade.

Anyway, there appeared at this demonstration a small band of the colonized on bicycles – bicycles tricked out with fancy wheels and decorations, and music playing. And just as the march was to start, they rode into the intersection, coordinated and circling around in it, stopping traffic in all directions. Taking back the land by not standing on it but moving. The motion, like dance, was powerful because it cannot be commodified. Only cars can stand their ground (i.e. colonize) on that land. Or cops – who arrived a few minutes later. These guys on bikes just rode circles around them, so that all the cops could do was take over the intersection, which meant taking over the task of stopping traffic in all directions.

It happened again and again, until it finally happened on the expressway. Bikes. And photographers. And we, the colonized, dancing behind them to their music.

Only the totally naïve would believe that Trayvon Martin attacked Zimmerman, instead of dancing around his stalking. There was a photo of Zimmerman with blood on his face, which surfaced three weeks after the event. Had the picture been made on the night of the murder, it would have been in every newspaper’s front page the next day. It took three weeks to produce it. It didn’t look like Photoshop, but you never can tell.

All that happened not because Trayvon Martin is black. No, we are no longer permitted to play that race card. There is a whole slew of Supreme Court decisions that legitimize profiling. Please see Michelle Alexander’s book, The New Jim Crow, for a partial list, complete with explanations in layperson’s language. Trayvon Martin wasn’t stalked and shot because he was black. He was stalked and shot because Zimmerman is white. It is the fact that Trayvon Martin could be stalked and shot by Zimmerman with impunity that makes him black. The DA and the AG assisted Zimmerman, in a cabal of jurisprudence, with the jury carrying the ball the rest of the way, because Zimmerman is white. It is that cabal that makes Trayvon Martin black. Pure and simple.

OMG, my deepest apologies. I’ve got this all wrong. Its not that the US invasions of other countries is the role model for Zimmerman. Not at all. It’s the Zimmermans of the country that are the role model for the US government.

~

Steve Martinot is a scholarly progressive activist in any cause for social justice and author of a number of books, including The Rules of Racialization and The Machinery of Whiteness. He can be reached at: martinot4@gmail.com.

July 22, 2013 Posted by | Civil Liberties, Ethnic Cleansing, Racism, Zionism, Militarism, Timeless or most popular | , , , , , , | 1 Comment

US activists protest to demand arrest of teen murderer


People pray at the Titusville Courthouse on March 18, 2012, in Titusville, Florida, while demanding justice for Trayvon Martin.
Press TV – March 20, 2012

Activists in several locations across the southeastern US state of Florida have rallied to demand the arrest of a neighborhood watch captain who has killed an unarmed teenager, Press TV reports.

Protesters on Monday held a demonstration outside the State Attorney’s Office in Sanford, the city in which the shooting took place.

Prosecutors in the office are reportedly to review whether to file criminal charges against George Zimmerman, a volunteer neighborhood watch captain.

Zimmerman has reportedly said that he killed Trayvon Martin, an unarmed Black teenager, in self-defense, a claim rejected by the victim’s family.

“A cell phone, his headphone, a pack of skittles and an Arizona Iced Tea was the only thing he had on! I can’t figure out how he’s going for self-defense,” said Tracy Martin, Trayvon’s father.

The failure of the police to arrest Zimmerman has sparked a massive fury in America’s Black community, as many say Trayvon was a victim of racial profiling.

Protests were also held on the campus of A&M University of Tallahassee in Florida’s capital.

“Public safety is at risk when citizens like Zimmerman are permitted to take the law into their own hands without being arrested or sufficiently questioned on record,” said members of Florida’s Black Law Students Association Organization.

A number of additional rallies are also planned across the country this week to prompt prosecutors to push charges against Zimmerman.

March 20, 2012 Posted by | Civil Liberties, Ethnic Cleansing, Racism, Zionism, Subjugation - Torture | , , | 1 Comment