Why Florida v. Zimmerman Is Necessary

In the Roman Coliseum the crowd voted thumbs up, or thumbs down based on the performance they had just witnessed. Life or death depended on the fancy of a mob who had come out to view blood sport. I wonder how different we are today.

There is no dispute of fact about what caused the death of Trayvon Martin in Sanford, Florida. He was shot to death by George Zimmerman. Whether the shooting was justified is what stirs passions. Virtual mobs were quick to form: Prosecute Zimmerman, we are told. This white man shot a black boy for the crime of "walking while black." The failure of Florida lawmen to act enrages, proving, as though further proof were necessary, that black boys are expendable in the South.

It is a compelling narrative. But for the press of a hectic court schedule and illness, I might have joined the chorus. The color line remains a scar that separates and divides in the United States. There is no doubt about it.

But I stumbled upon an opinion piece in a South Carolina newspaper that shocked me. The paper reports on a news release issued by the Sanford Police Department that relays the following, together with other facts under-reported in mainstream press accounts:

1. An eyewitness told police that Martin was observed on the ground punching Zimmerman moments before the shooting. This is different that Gospel version circulating online, the narrative that has a young boy walking home, eating candy, when he is suddenly attacked by a white racist.

2. The witness reports that Zimmerman was on the ground screaming and yelling for help. Apparently this was a moment in which Martin was not reaching into the package of Skittles for another treat.

3. When police arrived, Zimmerman was bleeding from the back of his head and had grass stains on his back, facts consistent with the eyewitness account.

4. When police played the 911 tape for Martin’s father, the father said the screaming voice was not that of his son.

5. The shooter in this case, described as a white male, in fact appears to Latino/Mestizo.

6. The neighborhood in which Martin was shot was ethnically and racially diverse, and not mostly white.

7. Far from being a model student, Martin was on a five-day suspension from school for reasons unknown.

8. Martin was not the scrawny, pre-teen displayed in a photo released to the press by his grieving family; he was a 6'2" football player.

None of this justifies the shooting of this Trayvon Martin. It merely reframes the confrontation from one in which a racist vigilante went hunting for black boys to one in which a man may have overreacted in self-defense, or, and I am not prepared to say this, been justified in his use of force. The point is that witnesses report information that changes how one perceives what went down in Sanford.

Florida’s permissive self-defense law imposes no duty to retreat when one is in one’s own home. A confrontation on the street is, however, different. Did Martin assault Zimmerman? If so, did Martin reasonably believe either that his life was in danger or that he was at immanent risk of serious physical injury? If so, was his use of deadly force reasonable given the events as he perceived them? These are the lawyerly questions that inform a legal analysis of this case.

Our national love affair with firearms makes these sorts of cases inevitable. Our inability to have a meaningful discussion about race and the color line makes politicization of such cases inevitable as well. This case, much like the Casey Anthony case, should be resolved in the relative calm of a courtroom, and not on the Internet’s version of the coliseum, where flash mobs respond to those inclined to confirm what they already believe about events they have not witnessed.

There are too many guns on the streets. Period. We will keep killing one another because it is easy and satisfying to do in some primeval way we care not to acknowledge. In the case of the Trayvon Martin homicide there are serious questions about what happened and why.

There is no doubt that George Zimmerman killed Trayvon White. The only question is whether he was justified in doing so. That question should not be answered by opinion polls. It should be answered in a courtroom. That requires charging George Zimmerman with a crime, cloaking him in the presumption of innocence, and then testing the theory that has now become dogma on the streets: Zimmerman killed a young boy out for a stroll, minding his own business, merely eating candy. If that’s true, the crime is murder; if it is not true, the killing still might not be justified, a jury might conclude that the shooting was an overreaction.

But let’s let a jury decide. Appealing to the crowd in the Coliseum for a verdict in this case makes no sense. None of us where there to witness what went down when Martin was killed. Let’s hear from the witnesses. If nothing else, this trial can indict firearms manufacturers for turning our streets into killing fields.


New Haven's First Official Act: A Severed Head On The Green

"The positive testimony of history is that the State invariably had its origin in conquest and confiscation," wrote Albert Jay Nock in Our Enemy, The State. His words haunted me as I researched just who owns New Haven’s Green today. The records of New Haven Colony and Plantation in the mid-17th century are a story of confiscation and conquest.

Colonists trickled into the area now known as New Haven in 1638. Within months of their arrival, they had purchased vast tracts of land from local Indians in exchange for coats, axes, knives and other kitchenware. It turns out that the Dutch purchase of Manhattan for some $24 in trinkets was not the only epic bargain in North American land deals.

In New Haven, the settlers quickly formed themselves into a community in a meeting at Newman’s barn in 1639, agreeing to establish a government that recognized only the Old and New Testaments as the source of law. Only churchmen could become full citizens. New Haven became a theocracy.

Several months passed without action on this agreement to form an actual government, however. Then events appear to have forced the hand of the colonists. An Englishman was killed, a man by the name of Abraham Finch. Three other Englishmen were also killed "in the boat or shallop on the Connecticut river." A child off Mr. Swaine’s at Wethersfield was kidnaped.

The colonists suspected that one man had committed all these crimes, "an Indian called Messutunck, alias Nepaupuck." Although the colonial record is sparse, it is not difficult to imagine something like panic settling on the colony. Englishmen are killed, a child is missing, the boundaries of the plantation’s territory must have seemed alive with menace. A bold stroke could restore order and calm. But how to strike it without a government?

On October 25, 1639, the compact created at Newman’s barn was transformed into a government. All church members eligible for full citizenship swore an oath of loyalty to the new government. A chief magistrate was selected, Theophilus Eaton, the lead purchaser of the property now owned by the new plantation and colony. Eaton was to govern for one year, after which time a new election would take place. Four subordinate magistrates were selected to assist him. New officers would be selected at an annual meeting of the "Generall Court." "[T]he word of God shall be the onely rule to be attended unto in ordering the affayres of government in this plantation," the colonial record reports.

The very next day, Nepaupuck was arrested under the authority of a warrant issued by the brand new marshal, Robert Seely. Nepaupuck was arrested and pinioned, most likely on the area now known as the Green. Two days after his arrest, and a trial in which Nepaupuck at various points denied the allegations and then confessed, the court had issued its judgment: Nepaupck was to die for his crimes. "[A]ccordingly," the colonial records report, "his head was cut off the next day and pitched upon a pole in the markett place."

That a trial took place at all is sufficient proof that the rule of law can serve as a civilizing influence. Far better some judicial process than mere vigilantism. But the trial looks suspect from afar. Colonial strangers had appeared in the region. An Indian chief had sold title to the land on which his people had lived for time immemorial. Suddenly new land claims and forms of life were taking root in an area that had not known about such things as title to land, church membership, and rule by a foreign people. It is no wonder that there was violence. A people displaced rarely yields its traditional way of life without struggle.

New Haven was purchased for a trifle. A government of colonists created. A native American was killed, his head displayed in the town market place, what later became known as the Green, as a warning to others: There is a new sovereign in town. New rules. New sources of right.

I read about Nepaupuck’s head and I keep thinking about Nock’s observation about the state’s origin in conquest and confiscation. The early history of New Haven suggests Nock got it right. An ancient people’s land was taken by means of a deed trading property for incidental goods; once title passed, the new power acted decisively to protect its claim, killing a man and displaying his head on a pike to illustrate to all who had conquered the land.

The very first public ornament on New Haven’s Green was a severed human head. The owners of the land wanted this symbol to tell the world who now controlled the land. Confiscation and conquest. Even now, descendants of these early colonists claim to own the Green, and call upon the State to enforce their claims of ownership and control. The state is an odd creature, a thing of violence, terror and tragic necessity.

Each time I pass by the Green nowadays I keep looking for the exact spot on which Nepaupuck’s severed head was displayed. The image haunts.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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