donald_jones_web.jpgSanford police arrested George Zimmerman after he shot and killed Miami Gardens teenager Trayvon Martin on Feb. 26. Then they gave him back his gun.

No drug tests were done to see if Zimmerman was under the influence of drugs at the time.   Perhaps the most critical evidence that was lost was the clothes Zimmerman wore when he shot Trayvon. The police allowed him to wear the clothes home.  The critical Crime Scene Investigation forensics that should have been done immediately   were not done.  No real investigation would begin until more than 30 days later.

The state, in prosecuting Zimmerman, is like a basketball team 30 points behind before the game begins.


Racial profiling


But the cursory Andy of Mayberry-level investigation that took place was only the first shoe to fall. Trayvon was an innocent child who died in the aftermath of a tragic incident of racial profiling. 

Ironically, in death he, not Zimmerman, is being portrayed as a thug. 

We learn that Trayvon was suspended from school for marijuana and had traces of  the drug  in his system.  But what does this have to do with the issue of self-defense?

This latest effort at character assassination draws on stereotypes popularized by television shows such as Cops and HBO’s The Wire showing  black males as drug users and thugs.  The story slowly taking shape here is that Trayvon is the “young tough,” the criminal, and Zimmerman a folk hero who stood up for law and order.  Almost on cue, a company produced targets for gun-users which use a silhouette of a Trayvon-like figure as a target.

The fact that these hateful images have sold out on the Internet — they could not make them fast enough — shows that many Floridians are buying or have already bought into these stereotypes.  No doubt some of these folks will find their way into the jury pool.


STAND YOUR GROUND


But by far the biggest obstacle to justice is Florida’s infamous “stand your ground” law. Self-defense should never be a cover for vigilante violence.  In Florida, sometimes it is.

Florida’s “stand your ground” law might as well be called Florida’s “make my day” statute.  Greyston Garcia chases down Pedro Roteta, who has stolen a radio out of his car.  He stabs the thief to death. He claims the thief might have struck him with a bag of stolen car radios. A prostitute picks up her client’s .357 magnum and shoots him to death. 

There was a traditional rule in criminal law that you could not create the conditions of your own defense.  In both of these cases, the killers did exactly that. They both chose to put themselves in potentially life-threatening situations and then claimed self-defense. And they were both acquitted.


First Blow


Trayvon’s side of  the  story is that Zimmerman followed the teenager, got out of the car,  after being  told not to by a  police dispatcher, and walked up

to him. According to Trayon’s girlfriend, Zimmerman pushed him.  Zimmerman struck the first blow, from that account.  It is not clear how much of her story is admissible and his side of the story may never be fully told in a court of law if the self-defense claim is upheld. 

But, even if it is, even if the state can prove Zimmerman struck the first blow, will that be enough? Based on the way Florida courts have been applying that law, the answer is no.  Under the “stand your ground” law, the person who strikes the first blow does not automatically forfeit the right to claim self-defense.


Deadly Force


The person must show that although he or she was provoked or even if he or she threw the first blow, he or she retreated and backed away as far as possible and then the “other guy” attacked with potentially deadly force.  That is Zimmerman’s story.  It does appear to be convenient and self-serving. 

He conveniently portrays himself as “walking back to his car and struck from behind.”  Zimmerman’s story could be a cover for murder.

But, in the words of Denzel Washington’s character in Training Day,  “It is not what it is, it is what you can prove.”


Donald Jones is professor of Law at the University of Miami.  He may be reached at DJones@Law.miami.edu

Photo: Donald Jones