I Needed a Day
I needed a day.
I needed to give myself time to think and reflect before saying something that could potentially drive the debate backwards. There has been a battle raging inside me over the last two days, between the part of me that has been in law school and the part of me that senses that a grave injustice has been committed. My heart knows how it feels, but my brain needed a day to figure things out. Both sides have declared a truce, and this is where things stand.
Procedurally, the outcome in the Zimmerman trial was sound; it is consistent with the propositions of the law under which the decision was made. Soundness as a philosophical principle has nothing to do with rightness or wrongness – it is a quality of an argument that is predicated on consistency: is the argument in keeping with the legal tradition in which it was undertaken? Does it adequately reflect the principles that the system has been designed to privilege?
The Zimmerman decision is sound because it is consistent with the principles of an adversarial system that is weighted to privilege the appearance of innocence over the possibility of guilt. The adversarial system is a balance sheet, and both the judge and the procedural law have the discretion to admit or reject what goes into the balance sheet, before presenting it to the jury to make the final tally. It considered all the things that it was set up to consider – the “material facts”, the history of the two major players, the argumentative capacity of the lawyers on either side. A sound decision is basically a balance sheet that balances.
Soundness, however, is not a function of wrongness or rightness. Consider the following: “all white animals are ducks; this animal is white and therefore this animal is a duck”. This is a sound argument because in the closed system of the premises and its conclusions, the conclusion is consistent with the principles that I have set out. But logically, in the real world, we know that not all animals that are white are ducks. The proposition is internally flawed.
In the Zimmerman case, I posit that the propositions that were presented to the jury were as follows. “There was a confrontation between two men with no other eyewitnesses. One of the men was unarmed. The unarmed man swung at and hit the armed man. The armed man shot and killed the unarmed man. The conclusion: there isn’t enough reasonable doubt to reject the proposition that armed man acted in self-defense.”
I posit that you could challenge this argument either on the basis of the truth of its premises, or on it’s rightness or wrongness in the universe in which it is proposed. Firstly, the central flawed premise and the reason that has drawn thousands out of their homes over the last two days to protest, is that this was a confrontation between two “men”. George Zimmerman is a man. Trayvon Martin was a boy. A black boy who has grown up in a country in which he is socialised to be wary of confrontation with the law, and with big burly white men bearing guns, who come running after you in the dark of night.
A few weeks after Martin was initially shot, I attended a town hall meeting organised by black mothers in the relatively affluent Cambridge community that surrounds my university. Four – black – law enforcement professionals were on the panel addressing a primarily black audience. One mother stood and pleaded in tears: “I need you to tell me how I can keep my son safe”. And they had no responses beyond the stock; get him to change the way he dresses, the music he listens to, and the places where he chooses to hang out with his friends, including his front stoop.
Can you imagine a white police officer giving white mothers advice on how to keep their sons safe from police officers? It struck me that night, that to be a young black man in America is to live in constant apprehension that someone will misunderstand your appearance and then use that as an excuse to fight. You could argue that Zimmerman also went into the confrontation with his own fear: the fear of the young, black man – the presumption that he must be a criminal. But unlike Trayvon, Zimmerman had an assurance at the time of his pursuit that the police would arrive to address the situation. He had reason to temper his (irrational) fear. Trayvon did not.
Secondly, even if you accept all the premises above, your lived experience may tell you that an argument is wrong because it just doesn’t reflect the reality of the world. The reason why so many people are upset at the Zimmerman outcome, and the reason why this case is about race, is that the balance sheet that was presented to the jury did not reflect the totality of the situation, because the impact of race cannot be neatly summarised and quantified on the legal balance sheet.
Race is what I call an “immutable construction”. Immutable, because there’s nothing you can do to change it – the colour of your skin is a biological imperative. But it is also a construction, because the way people react to and interact with race is a function of their own prejudices and assumptions about the world. So when I walk into a room, I can’t do anything about my blackness, or the way people react to it, but the people who react to it can do a great deal about their own reactions.
This immutable construction permeated every step of the Zimmerman trial. It is why we ended up with an all white, female jury – the demographic most “sympathetic” to one side and acceptable to the other. The prosecution wanted a panel of mothers to play on their sympathies: the defence likely wanted a panel of white people to play on any possible fear of young, black men. It was also in the normative judgements made about the presentation of Rachel Jeantel as a witness, or the way Martin’s character was called into question.
Indeed, the easiest way to get to the heart of the way in which race pervaded this whole procedure is a well-publicised thought experiment in which the races of the two actors are reversed. Is there a universe in which black George Zimmerman gets away with killing white Trayvon Martin? Is there a universe in which a white defence attorney portrays a white Trayvon Martin as a criminal whose moral character is worth discrediting? Is there a universe in which a prosecution attorney steps away from making that case for fear of alienating the jury? Is there a world in which a jury buys that?
The law cannot contemplate such hypotheticals. It is the paradigmatic instance of the limits of a “post racial” world – it ignores the very racial differences that set off the chain of events being adjudicated, and pretends that they can be extinguished in the minds of a jury that lives in the real universe in which these racial assumptions are the order of the day. To recall an earlier proposition: very often the “appearance of innocence” is predicated on the race of the accused and the victim, but the legal system cannot look at that because it doesn’t know how.
And this is why we speak up; because where the conclusions law so far diverge from the reality of the universe in which we live, we must draw attention to these limitations in hopes for reforming the law to better address them.