Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
Professor Alafair S. Burke has looked at the Trayvon Martin decision from the point of view of a “non” jury instruction http://m.huffpost.com/us/entry/3596685.
I am looking at this from the point of view of international law and the Convention on the Elimination of Racial Discrimination. What I am to understand from Professor Burke’s excellent piece is that the “non” jury instruction or the omission by this elected judge was a further step toward this being the result. The distinguished defense attorney Mark Geragos, on the other hand, called the case for Zimmerman from the date of empaneling of this jury before any of the procedure. Alafair is calling it for Zimmerman from the jury instruction.
I am not sure which part of the balloon is the proper place to squeeze but it points toward the systemic problematic. The Gibbs case described by Alafair seems like it is well-known law in Florida and for it to be twisted in the way Alafair says it was and the judge just going along seems extremely bizarre for a judge to do in a case like this. I understand the judge’s fear of reversal and West trying to pressure the judge to intimidate – that is his job for his client, just like the games he played on Rachel Jeantel which were about hitting the implicit bias switch in the jury. My problem is why would a judge not make that instruction in this setting.
A further point on the law, much has been spoken about a civil rights case being brought with emphasis on the hate crimes legislation. I just read a piece suggesting the better approach would be Civil Rights Act of 1964 action like in the Crown Heights case. Here is the piece called Trayvon Martin, Crown Heights, and a Civil Rights Case Against George Zimmerman – http://forward.com/articles/180685/trayvon-martin-crown-heights-and-a-civil-rights-ca/. I wonder if the focus on hate crimes as opposed to the Civil Rights Act is another classic form of misdirection to avoid the politically difficult reality of bringing such a case in Florida, with it being a swing state and with an eye toward some future Presidential hopefuls chances of carrying that state – Democrat or Republican.
In an earlier piece here at blog.saltlaw.org, I tried to synthesize what I understand as the message that the law is saying from the Trayvon Martin decision ( I do not call it the Zimmerman case). That synthesis can be summarized as follows:
“Ultimately, the message of the decision is clear: IN FLORIDA (AND POSSIBLY AMERICA) TODAY, IT IS OK TO KILL AN UNARMED 17 YEAR OLD BLACK KID WHO IS LAWFULLY IN A WHITE NEIGHBORHOOD IF HIS PRESENCE CAUSES SUFFICIENT CONTACT WITH A NON-BLACK MAN FOR THE NON-BLACK MAN TO SUBJECTIVELY FEAR SERIOUS BODILY HARM OR DEATH WHICH FEAR OF THE BLACK KID WILL ALWAYS BE SEEN AS REASONABLE. BLACK KID, LOCATION, PRESENCE, CONTACT, FEAR, REASONABLENESS = OK TO KILL.’
So here are hypotheticals, given free of charge, based on my personal experience working my way through college over three summers in Texas and Arizona (Phoenix and Tucson area) selling Webster dictionaries door-to-door on straight commission as a student salesman, student manager and salesman, and Wing manager and salesman. We did not wear coats or ties – just t-shirts or shirt and shorts and sneakers. I worked in predominantly Hispanic neighborhoods (and lived in one one summer), white neighborhoods, and a very few black neighborhoods or enclaves in predominantly Hispanic neighborhoods. It was a tremendous experience and was what helped me get admitted to Harvard Business School as significant business experience.
Hypo 1: Black kid salesman knocks on house door in essentially all white neighborhood. White teenaged girl comes to the door. Black kid salesman explains to teenage girl that he is a salesman and is their mom or dad home. Teenage girl says, “No.” Black kid says “ok. I will come back later when they are home.” And leaves. Later walking down the street, white man in pickup drives up in a huff and accosts the black kid salesman saying what are you doing. As trained (when in doubt, whip it out), black kid salesman pulls books out of sample case and starts doing the sales pitch. White man looks quizzically at all this and comes to realize the Black kid is a salesman, calms down, mutters and walks away.
Hypo 2: Black kid salesman not selling well. Company policy is to follow another salesman for the day in that salesman’s territory to watch what the other salesman is doing to help get on track. Black kid salesman #1 therefore follows another Black kid salesman #2 for the day in his territory which is essentially an all white neighborhood. Black kids show up at first screen door at 7h59 am as taught to do. Black kid salesman #2 knocks on door. Obviously sleepy white woman comes to the door rubbing her eyes. When she sees both of us her eyes get as big as silver dollars. Black kid salesman #2 explains he is a salesman. She says, “Just a second.” 4 minutes later 4 police cars appear. First car’s white police officer gets out and says to the Black kid salesman #2, “Hey J, so you are going to be working around here today?” Black kid salesman #2 says, “Yup.” and the cordial relationship he has with the police continues because this scenario has happened so many times in that neighborhood. Two black kids work all day, police being called many times and the same routine happens. Gets to around 8h00 pm as it starts to get dark. We are to work until 9h30 pm (13 and half hours a day/6 days a week) to win the 80 hour a week award. White police officer drives by and kindly suggests that we “call it a day.” So we do though we do not have to. There is more to this story about the solicitor licensing agency sending letters saying they are getting complains about us and the two of us being asked to write letters of apology to the city licensing agency. I complied. My friend, I believe, did not.
Hypo 3 (obviously this is black on black): Black kid salesman is delivering books at the end of the summer to the customers who had bought them over the summer. The first rule is to send a postcard saying the day you will deliver about two weeks before delivering and make sure to show up on the day you promise. Be polite and insistent on the payment of the balance due. It gets late, black kid salesman shows up at about 11 pm at house with lights on. Young black kid comes to the door. Black kid salesman explains he is there with the books as promised and can he speak to his dad. Young black kid goes away and comes back and says dad is busy come back tomorrow. This is a foreseen dodge by some customers to avoid paying the remaining portion for the books. Black kid salesman asks to speak with the dad. Black dad comes to the door with a rifle and says come back tomorrow. Black kid leaves and comes back next day. Young black kid gives the Black kid salesman the money – father does not come to the door.
Hypo 4: Black kid hitchhikes to and from work which might be 10 miles at 7-8 in morning and 9h30-10h30 at night. Works until 9h30 at night. Hitchhiking home gets picked up by older white man. While giving him a ride, older white man makes a pass with his hand rubbing on the thigh of the black kid salesman. Black kid says he is not into that. Conversation continues and the guy tries again. Black kid declines each time politely and says “we have arrived at my destination” hoping the guy will stop. Guy stops, black kid salesman gets out of the car in some strange neighborhood and walks home.
Hypo 5: Black kid delivering books again late at night. Lonely house with single Hispanic woman with elementary child who was a wonderful person when he made the sale earlier in the summer. Same script though this time the house appears to be dark. Knock, no answer. While laughing with other salesman waiting in car with books, leaves card to say will be back next day. Next day, comes back, lady says I scared her last night she did not know who it was and slams the door in my face. She was right and I was stupid to knock so late, should have just left the card. On the other hand, was she trying to avoid paying for the books? Will never know.
Hypo 6 (happened to a white kid salesman): White kid salesman walks up to house in white neighborhood. It’s Mrs. Green. He asks, “Are you related to Mrs. Green over on Simpson Street?” The white lady says, “No.” White kid salesman continues pitch, does not make sale, and walks out of the house which is on the cul de sac. Across the way out of the cul de sac are seven burly white guys lined up by a pickup truck. One of the white guys says, “You callin’ my (sister or wife) a nigger?” White kid salesman says, “He does not understand.” White man says, “You accused my (sister or wife) of being related to that nigger Green on the other side of town.” White kid goes into apology mode and shows the books to all the guys, defusing the situation and getting away by the skin of his teeth. Imagine if it was a black kid salesman?
Under the message of the decision above, it is easy to see how these facts changed slightly and that black kid (or kid) could have been murdered and his murderer acquitted in each of these situations with no taking into account of that kid’s right to do what he was doing.
By the way, all of this is pre-cellphones in the mid-70’s. Over the course of the summer I would knock on say 5000 houses and do presentations somewhere around 2500 times. All of the time, even when they did not buy, people were fine with me. How many times was I risking being killed and that killer being able to be acquitted? We were taught to ignore no soliciting signs (those are people who buy), beware of dog signs (I have a trick for that), jump fences to get from house to house to go faster and generally have a positive attitude. This training was to all of the students so uniform. But selling while black kid risks appear evident – thank god I had not had “the talk” that would constrain my sense of freedom. My ignorance and innocence and salesmanship spiel saved me.
The law today should not make what I did risky behavior. It’s been done by white boys since after the Civil War.