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Irresponsible Media of the Day: Miami Herald

On March 31, the Miami Herald touted its own reporting in the Trayvon Martin case as an example of fact-based and neutral journalism, highlighting the work of reporter Frances Robles as an example.

As new details emerge, we work hard not only to get the information right but to put it in the proper context of our overall coverage.

I think it failed today. First, Frances Robles published an article about a "crude" 2005 My Space page belonging to George Zimmerman which included unflattering comments about "Mexicans." Then she followed up with a second article that includes a response to her first article by Martin family lawyer Benjamin Crump. Crump is quoted as saying Zimmerman's My Space page is further evidence of Zimmerman's racism, his pattern of profiling, and even of his ill will and malice (which not so coincidentally is the necessary mental state for second degree murder.) [More...]

"“It’s one thing to think something like that, but to type it?” Crump said. “You really gotta be racist. You really have to have ill will and malice.”

Robles puts the My Space in context by inaccurately representing the state's theory of prosecution as to George Zimmerman . She claims racial profiling is a crucial element in the case:

A crucial element in Zimmerman’s criminal case is whether he racially profiled Trayvon Martin when he followed him Feb. 26, got into a fight with him and then shot him. Zimmerman denies profiling Trayvon and claims he shot him to save his own life.

Nowhere in the the state's affidavit for probable cause for arrest, which is the only document so far outlining the state's theory of the case, is race even mentioned. To the contrary, the affidavit repeatedly refers to Zimmerman unfairly profiling Trayvon as "a criminal." It never claims the profiling was based on his race.

Zimmerman, who also lived in the gated community, and was driving his vehicle observed Martin and assumed Martin was a criminal. Zimmerman felt Martin did not belong in the gated community and called the police. Zimmerman spoke to the dispatcher and asked for an officer to respond because Zimmerman perceived that Martin was acting suspicious.

....During the recorded call Zimmerman made reference to people he felt had committed and gotten away with break-ins in his neighborhood. Later while talking about Martin, Zimmerman stated "these a*sholes, they always get away" and also said "these f*cking punks".

....Martin attempted to run home but was followed by Zimmerman who didn't want the person he falsely assumed was going to commit a crime to get away before the police arrived.

There is not one word in the affidavit about race. In fact, the state goes out of its way to reject the idea that he used a racial slur as many believed. The affidavit makes it clear the state believes he said "f*cking punks."

One can be profiled in any number of ways: In addition to racial profiling, there's drug courier profiling, terrorist profiling, and many more. In this case, the state hasn't made racial profiling an issue, let alone a critical element. It's only alleged Zimmerman profiled Martin as a criminal. Also, profiling by a private citizen is not illegal.

Mark O'Mara, reading Crump's quote in Robles' article, posted it on his new website for Zimmerman, along with his response. Robles writes:

O’Mara published one of Crump’s Miami Herald quotes, and noted: “We believe that inviting public scrutiny of the contents of this social media account invites scrutiny of the social media accounts of all parties involved. While these social media accounts may be public, we will not comment on them publicly, as they may be part of the evidence produced at trial.”

Robles, after correctly stating O'Mara's response in which he refused to discuss the details of Trayvon's twitter account at the beginning of the article, provides her own interpretation, inflating O'Mara's "may be" to "would be":

O’Mara seemed to be suggesting that Trayvon’s social media accounts would be brought up at trial as well. (my emphasis)

First, the State's Attorney, not Crump or any lawyers for the Martin family, decides what evidence the state will seek to introduce at trial. Mr. Crump does not speak for the state's attorney. The states' attorney, as of now, has not addressed George Zimmerman's My Space page, let alone indicated it will seek to introduce it as evidence.

O'Mara did not suggest, as Robles says, Travyon's twitter account would be brought up at trial. His suggestion was that if Zimmerman's my spage page became evidence against Zimmerman, Trayvon's social media pages might be as well. Thus, he said, he couldn't discuss either page. He said:

While these social media accounts may be public, we will not comment on them publicly, as they may be part of the evidence produced at trial.(my emphasis)

Robles then goes back to Crump for his reaction to what O'Mara said:

“I always assume they are going to attack the victim,” Crump said when told of O’Mara’s statement Wednesday. “What part of what I said wasn’t true? You don’t have to be a rocket scientist to see the behavior pattern. Zimmerman is on trial for murder: His credibility is at issue, his mentality is at issue.”

(Crump clearly isn't getting the message from the Court's April 30 order, reminding lawyers "connected to the case", not just lawyers representing parties to the case, that they are subject to discipline for public comments that they know or should know are likely to prejudice the proceedings. The court can address that with him if it chooses.)

There is as of now zero indication that the state's attorney, who makes the decision on what evidence to seek to have admitted in a criminal case, will attempt to introduce George Zimmerman's My Space page at trial. There is no indication a court would find it admissible. Absent both of those occurring, there is no suggestion O'Mara would seek to introduce Trayvon Martin's twitter page as a means of attacking Martin's character.

O'Mara still refuses to publicly discuss the contents of Trayvon Martin's twitter page, and has previously said he won't attack Trayvon Martin's character at trial -- as opposed to his actions the night of the shooting which are a necessary component of any self-defense claim.

Crump's reaction is nothing but predictable. But what's the Miami Herald's excuse for presenting the Martin family lawyers' theory of the case as the state's theory, and inaccurately reporting "a crucial element in Zimmerman’s criminal case is whether he racially profiled Trayvon?" (my emphasis.)

The Herald articles do nothing more than inflame the public discourse on this case, which the Court and the parties (who are the state and defense) have been working hard to temper so that a fair trial can be had for all. Promoting speculation, based on the false premise that racial profiling is a crucial element of the case, that Zimmerman's My Space page will come into evidence, and that Trayvon's twitter page will be admitted in response, resulting in an all-out character war by both sides, is, in my personal opinion, irresponsible journalism.

I may not be an attorney in Florida, or subject to the court's jurisdiction, but I do feel an obligation not to have this site used to prejudice the defendant or impugn the character of any party to the case, including Trayvon Martin. It's hard enough to keep commenters in line when dealing with reported facts. People want to talk about what they've read and heard in the news. When articles like these come out which cause people to become predisposed against one side or the other, it's even harder.

I'm not saying the Herald was wrong to report on its discovery of Zimmerman's My Space page. I'm saying it should have done so responsibly, without falsely stating the premise of the state's case and its critical elements, and thereby embellishing its importance and leading readers to believe a social media war was likely to occur in court during the course of which the characters of both the defendant and Trayvon Martin would be attacked.

For that reason, I will continue not to allow character attacks based on the contents of Zimmerman's or Martin's personal My Space, Facebook or Twitter pages here. Should either the State or Zimmerman actually seek to admit the contents of these accounts, then will it be a valid subject for discussion.

Similarly, since at this time, no notice has been given by either party that they will seek the introduction of any social media account, there's no reason to discuss how the judge might rule on such a request. (Obviously, that would entail a discussion of the sites' contents.)

What is up for discussion are the reporting by the Miami Herald, the propriety (or lack thereof) of the lawyers' public responses in light of the Court's order on extra-judicial comments, and the use of social media by lawyers to address inflammatory material that appears elsewhere. What's not allowed: your opinion that the defendant is racist, or conversely, that his suspicions about Trayvon were justified.

I know readers are unhappy with the commenting restrictions. All I can say is there are hundreds of other sites taking comments on the issue. I intend to keep the level of discourse here at a higher and more responsible level.

Update: According to the New York Times, Mr. Crump says he is not calling Mr. Zimmerman a racist:

Benjamin Crump, who is a lawyer representing the family of Mr. Martin, said in an interview that he believed that prosecutors in the case could point to what Mr. Zimmerman wrote as evidence that he has a history of racial profiling. I am not saying that George Zimmerman is a racist, Mr. Crump said. I am just saying that if he has a history where he has profiled people before, the prosecutor could use that to show that it is a pattern.
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  • Display: Sort:
    Ugh (5.00 / 0) (#6)
    by bmaz on Wed May 02, 2012 at 06:19:54 PM EST
    Is what is on the old Zimmerman webpage cool? No, most certainly not. But, frankly, it is not quite as it is being made out to be, and is not all that shocking for extemporaneous chatter by an unsophisticated 20 year old that has no idea he, or she, is talking to anybody but their close friends.  It is of little, to no, moment to the instant charge against him.  There is also, apparently, some less than flattering chatter from Martin.  Again, of no moment.  These are two common humans that stumbled into a tragedy together.  I have seen nothing to convince me either one came in with a malicious animus or malevolent intent, not have I seen anything to indicate either was a bad person.

    Nothing is going to bring Trayvon Martin back. Nothing is going to repair Zimmerman's life as he once knew it.  The only question is was there a crime committed, and that really boils down to a precious few moments.  All the character dissection and complicated movement prior to the relevant moments interpretation is mostly just bunk. Red herrings all, at least from what we know as of this time. Maybe subsequent evidence will change that, but such is the case now.

    Agreed. (none / 0) (#8)
    by Donald from Hawaii on Wed May 02, 2012 at 06:39:13 PM EST
    At this point, all we're doing is retreading old ground. Okay, George Zimmerman posted some intemperate remarks seven years ago, when he was 21 years old. So what?

    I daresay that none of us were exactly at our best and brightest when we were that age, and more than a few of us would be downright embarrassed to have that past dredged up and thrown back in our face, as though what we said and did at age 21 is somehow reflective of where were are today.

    I don't know about the rest of you, but back then, tequila shots and bong hits made me both invincible, clairvoyant and brilliant. Thank the heavens that nobody was recording it at the time, and that there was no internet and Facebook.

    Aloha.

    Parent

    Boy howdy (none / 0) (#11)
    by bmaz on Wed May 02, 2012 at 06:56:35 PM EST
    I am in exactly the same boat.

    Parent
    Yes, the ''Herald'' reporter misread... (none / 0) (#46)
    by Gandydancer on Thu May 03, 2012 at 01:08:25 PM EST
    ... the prosecution's use of "profiled", but Jeralyn's close reading of the APC is not widely known. Not reported in any major media that I'm aware of, in fact. And the SP knew perfectly well when she used the term "profiling" that, like "discrimination", the word may refer to something that is both reasonable and legal, but would be read as in an inflammatory fashion by practically everyone as "racial profiling". Judge Herr ruled on the APC one minute after announcing he'd just received it -- what do you think the chances are that -he- interpreted it in the considered way Jeralyn did?

    Frobles is incompetent (though not on a scale with ABC/Mat Gutman ("No visible injuries!", "Visible injuries revealed!", "No visible injuries"), CNN ("coons!" ...er,"cold"?), NBC ("He's black!", again and again and again and again...)), but the real problem is not that she didn't read the APC with the unusual comprehension that Jeralyn displays, but that she doesn't report on what Zimmerman wrote at a conversational level that ought to be within her capacity to comprehend with much accuracy, either. I mean,

    I dont miss driving around scared to hit mexicans walkin on the side of the street, soft ass wanna be thugs messin with peoples cars when they aint around (what are you provin, that you can dent a car when no ones watchin) dont make you a man in my book. Workin 96 hours to get a decent pay check, gettin knifes pulled on you by every mexican you run into!
    becomes "racially charged... insulting remarks about Mexicans." I mean, this is Manassas, VA, which I assume is rather more built up than in Civil War times, so there's some place near where he lived where the possibly undocumented getting off shift weren't all on the sidewalks, and he nearly hit one? And he got robbed? (The car-denting, nb, isn't directed at Mexicans, though who knows....) This is pretty thin gruel on which to reinstate his honorary membership in the KKK, especially if the page "includes photos of an ethnically diverse group of friends". So the more important legal issue is continued poisoning of the jury pool through blatantly biased reporting than not informing the public because she's not any brighter than anyone else performing the news.

    Parent
    Second Clue (none / 0) (#52)
    by nomatter0nevermind on Thu May 03, 2012 at 02:28:51 PM EST
    At the bond hearing, O'Mara dared Gilbreath to say the 'R' word, and gave him two chances.

    Parent
    Please don't veer into (none / 0) (#53)
    by Jeralyn on Thu May 03, 2012 at 02:30:55 PM EST
    a discussion of the contents of the websites and what you think they show about the parties. I've expressly asked readers not to do that.

    Parent
    Don't see why... (none / 0) (#62)
    by Thanin on Thu May 03, 2012 at 03:24:00 PM EST
    My comment was deleted since i only stated the facts of the case?  Martin was unarmed and he was shot to death, yes?

    Parent
    because this thread is not about the facts (none / 0) (#103)
    by Jeralyn on Fri May 04, 2012 at 01:31:02 PM EST
    of the case. I said,

    What is up for discussion are the reporting by the Miami Herald, the propriety (or lack thereof) of the lawyers' public responses in light of the Court's order on extra-judicial comments, and the use of social media by lawyers to address inflammatory material that appears elsewhere. What's not allowed: your opinion that the defendant is racist, or conversely, that his suspicions about Trayvon were justified.

    Please stay on topic.

    Parent

    Ok... (none / 0) (#110)
    by Thanin on Fri May 04, 2012 at 04:21:42 PM EST
    I glossed over that part.  I apologize.  

    Parent
    Heh. (none / 0) (#1)
    by MyLeftMind on Wed May 02, 2012 at 06:00:50 PM EST
    Frances Robles published an article about a "crude" 2005 My Space page belonging to George Zimmerman which included unflattering comments about "Mexicans."
    ...
    Crump is quoted as saying Zimmerman's My Space page is further evidence of Zimmerman's racism...

    Someone should tell Crump that Mexican isn't a race.


    Meaning of Racism (5.00 / 1) (#17)
    by nomatter0nevermind on Wed May 02, 2012 at 07:31:05 PM EST
    Etymology doesn't dictate meaning. Some dictionaries define 'racism' broadly, to include prejudice against ethnic and national groups.

    Parent
    Exactly... (none / 0) (#49)
    by Thanin on Thu May 03, 2012 at 01:40:23 PM EST
    Race isn't a biological fact but a subjective description, evolved from the human need to define groups and to emphasize the otherness of strangers.

    Parent
    So right (none / 0) (#5)
    by rickroberts on Wed May 02, 2012 at 06:19:00 PM EST
    actually (none / 0) (#10)
    by TeresaInPa on Wed May 02, 2012 at 06:51:07 PM EST
    the only race is human.  Several years ago biologist and sociologists came to the conclusion that there are no "races" of people.  What is interesting to me is that when you go back 100 years or so you can find writings that separate all kinds of people in to separate races. Jews, Italians, Chinese, women...jeesh

    Parent
    We of Italian descent (none / 0) (#48)
    by sarcastic unnamed one on Thu May 03, 2012 at 01:23:50 PM EST
    consider ourselves a superior race. And those of us of combined Italo-Celtic descent doubly so.

    Parent
    I applaud your stance and comment monitoring (none / 0) (#2)
    by RKF on Wed May 02, 2012 at 06:01:09 PM EST
    but I think you are too harsh on the Herald's account.  I had read it a few minutes earlier and thought it more measured.  It did not strike me as it did you.

    And of course they call for comment - just as you have fairly accurately recited conventions of our mutual profession, so there are conventions to reporting, and giving the "parties", which is  a broader term in media than in law, the right to comment, however unwise we may think the comments to be, in part of journalistic convention.

    And you have correctly talked about the potential damages that may be done to George Zimmerman's Constitutional rights, but the media is protected by its own Constitutional rights.

    I really appeciate this site and how much I learn here, and what I do not have to wade through to get to it (reading unmoderated comments at other sites can really be disturbing), but I think you are not being as measured as you aspire to be.

    JMO.  No offense intended

    that's okay, that's (none / 0) (#3)
    by Jeralyn on Wed May 02, 2012 at 06:03:53 PM EST
    fair opinion. But you didn't address the false statement that "racial profiling" is a critical element of the case. All of my other objections flow from that.

    Parent
    Response (5.00 / 3) (#7)
    by RKF on Wed May 02, 2012 at 06:21:07 PM EST
    I'm not sure I believe its false.   I guess it comes down to what one believes that a particular word choice was intended to convey, which reasonable minds can disagree about, as lawyers deal with everyday in terms of statutory construction.

    I agree that the affidavit was careful to try to stay away from the belief that Zimmerman had used a racial epithet, which the recording suggests might have been the case.  

    But I'm not sure that the term "profiling", as used in the affidavit, excludes racial considerations. Plainly, they suggested that Zimmerman believed Martin was a criminal, and plainly, the recording also suggested nonracial factors for reaching that conclusion - unspecified suspicious conduct.

    But it's also certainly possible that the fact that Martin was a young black male also factored into him being a "profile".  In fact, I would suggest the use of the term "profiled" is more likely to suggest a racial component to the author's thinking, as "profiling" suggests imputing bad conduct to someone based upon an unrelated traits such as race, religion, etc. It's hard to believe that the word "profiled" would be selected just based on conduct, is that it is contrary to the definition.

    I don't know; I'm speculating, although I think that's a more logical inference in presuming that there is absolutely no racial component in the author of the affidavit asserting that "profiling" occurred.

    As far as it being an element of the state's case, I would defer to you. I don't do criminal law. But it seems to me that it could be, in terms of the reasonableness of Zimmerman's belief. When discussing the issue of the reasonableness of one's belief in a self-defense case at law school, we were told about the gentleman who killed the Asian salesman coming to the store because he believed that all Asians knew martial arts and were aggressive. It was stipulated that his beliefs were sincere, just unreasonable. That's an absurd hyperbolic construction, but was intended to illustrate the point that the belief that one is threatened must be reasonable.

    So if the state seeks to disprove the reasonableness of Zimmerman's asserted self-defense, it seems to me that part of that proof would be to show that he develops unreasonable beliefs based upon ethnicity.

    I will stipulate in advance that even if I am correct, that is a fairly small part of the state's case, and that the article suggested it was a much larger part of the state's case than I am suggesting. But that didn't seem to be that big an offense in the article to merit your critique.

    I'm also stipulate that even if the reasonableness of George Zimmerman's conclusions about someone's intent based upon ethnicity are somehow relevant, it won't be proven by reference to any 2005 online posting.  No way I would think that survives a 403 analysis, even though I've never actually argued a 403 motion, as they rarely come up in civil cases.

    Anyway, just some thoughts. Appreciate what you do


    Parent

    the reporter's statement (5.00 / 1) (#14)
    by Jeralyn on Wed May 02, 2012 at 07:12:34 PM EST
    A crucial element in Zimmerman's criminal case is whether he racially profiled Trayvon Martin when he followed him Feb. 26,

    is patently false according to the theory advanced by the state which never mentions racial profiling and goes out of its way to avoid mentioning it.

    You can intuit what you want, but it's not an element, let alone a crucial element of the case as advanced by the prosecution and they are the ones charging the crime and tasked with proving it.

    It's also what she builds on to create the context for the remainder of the article.

    Parent

    Fair enough (none / 0) (#41)
    by RKF on Thu May 03, 2012 at 09:05:09 AM EST
    Your point is well taken, just overstated in overall significance, IMO.

    I just appreciated the way the article did not solely emphasize the inflammatory aspects of the MySpace page, unlike some of the less professional treatements of Trayvon's social media.  So I didn't focus of the accuracy of the recitation of the elements of the legal case, as I think that is the less significant media emphasis.

    Peace

    Parent

    just my two cents (4.00 / 1) (#12)
    by oldmancoyote22 on Wed May 02, 2012 at 06:57:53 PM EST
    Given the racial angle that was especially prevalent leading up to the arrest affidavit, in the pro-Martin rallies and in the liberal media coverage, the very careful language avoiding any explicit reference to racial motivations on the part of Zimmerman in the affidavit spoke very loudly to me.  

    It did not just refrain from making the charge of racial profiling. It went out of its way to downplay it, in my opinion.  

    There was simply no reason to include an official position on the inaudible portion of the audio - in which many commentators claimed to hear a racial slur.  This effectively closed the door on that particular claim.  And it did so at the expense of the groundwork laid by the Martin family attorneys.  

    The only reason to do that, in my opinion, was by conscious choice as a signal to their strategy.  

    Just my reading of it.  

    Parent

    Use of "punks" - Another Reason (none / 0) (#16)
    by expy on Wed May 02, 2012 at 07:28:36 PM EST
    Re:
    There was simply no reason to include an official position on the inaudible portion of the audio - in which many commentators claimed to hear a racial slur.  ... The only reason to do that, in my opinion, was by conscious choice as a signal to their strategy.

    There is another reason. Prior to the filing of the information, CNN reported that Martin's attorneys stated that the word used in the contested audiotape was "punks" -- see http://goo.gl/0bzKG

    So the reason for taking an "official" position on the word may simply be to lock the defense into their own position.  (If Zimmerman denies having said "punks" at trial, there is evidence of a prior inconsistent statement).

    It adds absolutely nothing to the state prosecution to bring in issues of race or race prejudice; it only complicates issues.

    At the same time, I don't think that their affidavit precludes them from adding issues of race-based profiling, if evidence develops that points to that.  

    So I don't think they were trying to telegraph anything one way or the other with their affidavit. I just think that they felt they could run with "punks" and that was a word choice the defense was unlikely to dispute, given the public statements of Z's former lawyers.

    Parent

    did you mean (5.00 / 1) (#21)
    by Jeralyn on Wed May 02, 2012 at 08:08:38 PM EST
    "CNN reported that Martin's attorneys stated that the word used in the contested audiotape was "punks" --" the article says Zimmerman lawyers and that's consistent with what they have said. I don't think the Martins' lawyers believe he said punks.

    The state, by agreeing with Zimmerman on the word "punks" is removing it as an issue from the case, again reducing the opportunity to argue racial motivation.

    I agree the state can change its theory, but it hasn't publicly done so as of today, which makes the reporter's statement today that  "racial profiling" is a crucial element of the states' case not factually accurate.


    Parent

    Yes, I meant Zimmerman's attorneys (none / 0) (#24)
    by expy on Wed May 02, 2012 at 08:46:04 PM EST
    Sorry, just a typo on my part - I hope the point got across from context.

    The state isn't precluding itself from expanding on the underlying facts supporting the broad allegations of the pleading.  "Racism" is not an element of 2nd degree murder; some form of animus is.

    If admissible evidence comes up at trial that supports evidence of racism, then the prosecution will be free to exploit that. Possibly that evidence would come out from Zimmerman himself, in the course of cross-examination or subsequent impeachment.

    No one has ever claim that Zimmerman targeted Martin simply because Martin was black. The "racism" claim was that Zimmerman targeted Martin because he suspected Martin of being a burglar (and Zimmerman hated burglars), and that he believed him to be a burglar because he was black.

    The prosecution has submitted an affidavit simply asserting that Z suspected M of being a burglar for unclear reasons. (Wearing a hoodie?  Walking slowly?)  Nothing precludes the prosecution from bolstering that theory with evidence of racism, if and when that came up. (That is, refine the theory to, Z suspected M because of (a) hoodie, (b) slow walking, and (c) skin color.

    At the same time, the failure of evidence of racism to materialize does not hurt the prosecution in any way.  Which is a pretty good reason for not asserting it in the first place.


    Parent

    the state (none / 0) (#29)
    by Jeralyn on Wed May 02, 2012 at 10:40:13 PM EST
    has not claimed that Zimmerman believed him to be a burglar because he was black. That's the media and Martin lawyer version.

    Zimmerman described the actions he found suspicious. The state has not claimed his suspicions were motivated by race, or racial profiling but by judging him to be a criminal.

    In addition, If you go back to the 911 call, Zimmerman never said Martin was suspicious because of his clothing. The dispatcher, just like s/he asked what race the suspicious person was, asked Zimmerman what he was wearing. Zimmerman responded describing his clothes, which included a hoodie.

    Read the affidavit again. It doesn't state anywhere that Zimmerman factored race into his equating Trayvon with a criminal.

    It also says Zimmerman got out of the car to follow Trayvon because he "didn't want the person he falsely assumed was going to commit a crime to get away before the police arrived."

    Whether they later change their theory to include race has nothing to do with whether the reporter's statement was accurate today. It wasn't. As of today, the state has never claimed racial profiling is an element, let alone a crucial element of the case. People can infer that if they want, as the reporter does, but it's not an accurate factual statement and it's one that is misleading.


    Parent

    I don't know why (none / 0) (#32)
    by expy on Wed May 02, 2012 at 11:18:31 PM EST
    you want to continually disrupt the flow of commentary to argue every point.  I posted a comment in direct response to oldmancoyote22's comment, "The only reason to do that [refer to "punks"], in my opinion, was by conscious choice as a signal to their strategy."  

    I offered up another reason.

    My comment has absolutely nothing whatsoever to do with the issue of "irresponsible media".  It pertains to subsidiary issue of whether a statement in the probable cause affidavit can be taken as representing a specific, strategic choice on the part of the prosecution.

    I'd note that "racial profiling", whether or not it exists, is not an "element" of the offense of 2nd degree murder. I do not think it is helpful for purposes of discussion to confuse the concept of an "element" with that of evidence, theory of the case, or strategy.

    The relevant "element" that the prosecution must prove for a 2nd degree murder conviction is that the acts of the defendant were "evincing a depraved mind regardless of human life". The prosecution will be free to argue any set of facts it chooses at the time of trial to support the "depraved mind" element; they are in no way limited to a strategy laid out in the probable cause affidavit.

     

    Parent

    More on missing the point (none / 0) (#33)
    by expy on Wed May 02, 2012 at 11:40:15 PM EST
    I've also noticed that the Miami Herald articles about the MySpace posts are not limited to the issue of "race" or racial bias. The Herald article also included quotes referencing:
    soft ass wanna be thugs messin with peoples cars when they aint around

    gettin knives pulled on you

    I realize that the Miami Herald didn't focus on these statements as isolated from the race issue -- but I think a prosecutor would realize their significance in terms of a theory that Z. is a vigilante looking for a fight. There is some very rich fodder for cross-examination in those words.  (Why were people pulling knives on Z. in 2005? Was it what happened to him when he confronted the "thugs"? etc.)

    I don't see any possible way the contents of the MySpace site could ever come into evidence as part  of the direct case, but I do assume that the prosecution will be combing over every word in preparing for cross-examination. The case isn't about racism; it's about a man with a loaded gun who killed an unarmed teenager.

    Parent

    "Was it what happened to him... (none / 0) (#85)
    by Gandydancer on Fri May 04, 2012 at 04:37:58 AM EST
    ...when he confronted the 'thugs'?"

    "...thugs messin with peoples cars when THEY AINT AROUND..." No confrontation over cars in 2005.

    "...Workin 96 hours to get a decent pay check, gettin knifes pulled on you by every mexican you run into!" Maybe a robbery, tho.

    "The case isn't about racism; it's about a man with a loaded gun who killed an unarmed teenager." You left out "profiled, pursued, and executed".

    Ok, that's Crump, not Corey. O'Mara has asked for a Statement of Particulars. Does that become public when delivered?

    Parent

    MySpace Crossing (none / 0) (#86)
    by nomatter0nevermind on Fri May 04, 2012 at 05:02:23 AM EST
    They say a lawyer takes a big risk when he asks a question to which he doesn't know the answer.

    If the prosecution wants to use this material against Zimmerman, I think they would send investigators to Manassas to gather evidence, so they can impeach him if he isn't truthful.

    For example in the O.J. Simpson case, the defense attorneys beat the bushes for people who had heard Mark Fuhrman say the N-word.

    Parent

    MySpace Crossing Ch. 2 (none / 0) (#87)
    by nomatter0nevermind on Fri May 04, 2012 at 05:09:54 AM EST
    How would this come in? What do you expect Zimmerman to say on direct examination, that would open the door for crossing him on the contents of the MySpace page?

    Parent
    I thought you were responding to (none / 0) (#35)
    by Jeralyn on Wed May 02, 2012 at 11:55:16 PM EST
    my comment. I don't respond to most comments, and I'm not picking on you. I agree racial profiling is not an element of the crime. The reporter said it was a crucial element in the case. It's her use of the word "element" I'm taking issue with.

    Parent
    Not a 911 Call (none / 0) (#36)
    by nomatter0nevermind on Thu May 03, 2012 at 01:37:56 AM EST
    Nothing to Lose (none / 0) (#34)
    by nomatter0nevermind on Wed May 02, 2012 at 11:53:43 PM EST
    If the prosecution's own experts are telling them the word is too distorted to prove what it is beyond reasonable doubt, they have nothing to lose by accepting 'punks'.

    Parent
    profiling versus racial profiling (none / 0) (#9)
    by michele on Wed May 02, 2012 at 06:50:03 PM EST
    important distinction

    profiling is a policing term referring to observed  behaviors associated with criminal activity.  

    the over-representation of BM in suspects/arrests data is another issue entirely

    Parent

    One of the two main ways (none / 0) (#60)
    by Doug1111 on Thu May 03, 2012 at 03:05:16 PM EST
    the department of justice compiles crime statistics aside from arrest and conviction records, is it widescale yearly telephone crime victimization survey.  In that among other things the Justice department asks the race of the victimizer, if the victim knows it.  

    There's no possible police bias there.  And actually, black are arrested in a somewhat lower percentage than crime victims identify them as victimizers, so that tends to disprove the canard that police prejudice is what explains the different rates of apparent pre capita crime commission.

    Parent

    Agree (none / 0) (#67)
    by michele on Thu May 03, 2012 at 04:29:27 PM EST
    I am aware of the data.

    I am so tired of dishonest media manipulation and reporting by omission when information is  readily available.

    Parent

    Bond Hearing (none / 0) (#18)
    by nomatter0nevermind on Wed May 02, 2012 at 07:41:28 PM EST
    In the bond hearing, O'Mara tried, without success, to bait Gilbreath into saying that the term 'profiled' in the affidavit was intended to suggest racial profiling.

    O'MARA: That he had an ice tea and a bag of Skittles, that he walked back into the gated community, he was on his way back when he was profiled by George Zimmerman. If I say to you the word peanut butter, what do you think?

    GILBREATH: Jelly.

    O'MARA: OK, Moe, Larry and --

    GILBREATH: Curly.

    O'MARA: OK, when I say the word profiling, what do you think?

    GILBREATH: I believe you're applying a predetermined thought pattern to a set of circumstances.

    O'MARA: No other word comes to mind when I say profiled to you?

    GILBREATH: I gave you my answer, sir.

    O'MARA: OK, I appreciate the answer. Did you consider it to be some specific type of profiling?

    GILBREATH: No.



    Parent
    There's a Pending Federal Investigation Too (none / 0) (#22)
    by Michael Masinter on Wed May 02, 2012 at 08:36:20 PM EST
    We'll continue to disagree over whether the court has authority to gag Crump (see paragraph 3 of the order, which explicitly refers to parties), but leaving that disagreement aside, the question of race is relevant to the ongoing Department of Justice investigation.  The DoJ investigation is separate from the state prosecution; a state trial judgment, whether of acquittal or conviction, does not bar later prosecution under federal law.  

    Because Zimmerman is not a state actor, federal criminal law can come into play only if his alleged conduct was racially motivated.  Although race is irrelevant to the state's case, it is the linchpin of federal authority to investigate and potentially prosecute Zimmerman; absent state action federal legislative authority flows out of section two of the Thirteenth Amendment.  

    The Herald has a first amendment right to publish the information it lawfully obtained.  See Florida Star v. B.J.F. and Bartnicki v. Vopper.  The operation of the criminal justice system is a matter of public concern.  All that seems to me to establish that the Herald has acted consistently with the highest standards of the press in a free society.

    I think you missed the point (5.00 / 1) (#23)
    by oldmancoyote22 on Wed May 02, 2012 at 08:43:00 PM EST
    Jeralyn's criticism isn't that the Herald published a story about the Myspace account.  It's that they significantly failed to properly describe the state's case.  Misinformation of that kind is not consistent "with the highest standards of the press in a free society."  

    It's the opposite of that really.  

    Parent

    I'd fault the state prosecutor (none / 0) (#25)
    by Michael Masinter on Wed May 02, 2012 at 09:03:35 PM EST
    The state attorney gratuitously threw "profiled" into the probable cause affidavit.  Two sentences later in a different paragraph the affidavit avers that Zimmerman "assumed" Martin was a criminal.

    Given the conventional, as distinct from the formal usage of profiling, I'm not sure the Herald reporter did anything more than accept the state's invitation to infer a racial motive.

    I'd direct criticism at the state attorney, for reasons Jeralyn much earlier identified; the probable cause affidavit is thin and conclusory, and speculate more than it alleges.  It should come as no surprise that it induces confusion; I suspect that to have been its goal.

    Parent

    Again beside the point (2.00 / 0) (#26)
    by oldmancoyote22 on Wed May 02, 2012 at 09:37:42 PM EST
    The article made leaps of logic which were careless and in this case inflammatory.  Why?  My guess is the reporter was being led by the nose by the family attorney.  

    Either way - it's not an objective review of the state's strategy or the affidavit.  

    You say the state invited the inference of a racial motive.  I'd say they were careful not to - else why would they explicitly refute the accusation of a racial slur when it was not necessary to do so in the affidavit?  

    The inference of a racial motive has ONLY appeared at this point from the Martin family attorney and the family's supporters around the country.  This article bought into it and ascribed that inference (absent any evidence of it) to the state attorney's.  It's a delicate part of covering the case and the reporter handled it in a very careless fashion.  

    Again - that's the opposite of the "highest standards" of the profession.  Throwing out the old "Yeah but these guys are worse" doesn't refute that point.  

    Parent

    Really? (5.00 / 1) (#27)
    by bmaz on Wed May 02, 2012 at 09:58:24 PM EST
    You actually think there is anything more than a publicly nominal "investigation" ongoing by the DOJ CRD?  Seriously??

    Um, no. First off they never wanted any part of this mess; secondly, whatever they even considered doing was internally dropped like a hot potato the second Corey filed her charge.

    Parent

    The Feds (none / 0) (#37)
    by nomatter0nevermind on Thu May 03, 2012 at 02:25:48 AM EST
    First off they never wanted any part of this mess; secondly, whatever they even considered doing was internally dropped like a hot potato the second Corey filed her charge.

    Sounds right.

    My research suggests federal civil rights laws were well designed for the purpose of backstopping cases where the ball got seriously dropped, because of bias or incompetence. Offering a second prosecutorial bite in close cases is what they weren't intended for, and were designed to avoid. Certain elements of federal civil rights violations were made tougher to prove than the parallel state level offenses, for example by requiring proof of criminal intent. That's why the Diallo case never went federal.

    If a hand-picked special prosecutor backed by the governor can't win this in Florida, I don't think the Feds will touch it.

    Parent

    Not to mention (none / 0) (#38)
    by bmaz on Thu May 03, 2012 at 03:27:27 AM EST
    There has to be some component that takes it out of the purely state homicide domain and into the federal ambit.  The only factor that could possibly do that in the Zimmerman/Martin case would be a racial component.  Hard to see how that is even feasible when even the prosecution in the pertinent state is not claiming or charging that.  There is, at least that we competently know of in the public domain now, nothing that could support a CRD involvement, at least not that I can discern.

    Parent
    Good Point (none / 0) (#40)
    by nomatter0nevermind on Thu May 03, 2012 at 04:23:51 AM EST
    Probably the FBI audio experts decided there is no racial slur on the Zimmerman tape, or at best they would never be able to say for sure that there is. That put an end to the possibility of federal involvement, if it ever existed.

    Parent
    the reporter (5.00 / 3) (#28)
    by Jeralyn on Wed May 02, 2012 at 10:23:41 PM EST
    didn't refer to a federal civil rights investigation. She said racial profiling was a critical issue his criminal case. There's only one criminal case right now.

    I don't blame the proseuctor. She chose what she saw the easiest route to a conviction, which was by leaving race out of it.

    This wasn't a haphazard affidavit. At the bond hearing the investigators testified it was revised and revised again -- Gilbreath couldn't remember who chose the word "profiling" but it wasn't him, and it sounded like it was prosecutor Bernie de la Rionda, who was supervising them.

    My post is simple: The Miami Herald reporter mischaracterized the elements of the criminal case, stating racial profiling is a crucial issue in the case.  She described the issue as Crump and the Martins believe them to be, rather than how the state has informed the court, via an affidavit, it is prosecuting the case.  The result is a ratcheting up of inflammatory  rhetoric among the public and potential for prejudicing the fairness of the pending criminal proceeding.

    No one said she didn't have a right to report on the website, in fact I said she did. But whether out of a desire to connect the two, or an honest mistake, she made an inaccurate statement about the role of race in the case. The Herald needs to correct its mistake, in my view.

    Parent

    Agree with you entirely on this (5.00 / 2) (#31)
    by gyrfalcon on Wed May 02, 2012 at 10:54:22 PM EST
    Jeralyn, for whatever that's worth.  The statement is egregiously wrong.

    Parent
    Racial profiling (none / 0) (#107)
    by Doug1111 on Fri May 04, 2012 at 01:51:47 PM EST
    is a crucial issue in Crump and the PR firm he engaged, Julison Communications,getting the media to try and convict Zimmerman in the court of media and public opinion; and thereby to thoroughly pollute the Florida jury pool, particularly the black Florida jury pool, it seems to me.

     

    Parent

    Just curiously (none / 0) (#30)
    by gyrfalcon on Wed May 02, 2012 at 10:52:07 PM EST
    do you or a member of your family/friends work for the Herald?  No offense, but your last line reads like it came from a PR release.

    Parent
    I don't know anybody at the Herald (none / 0) (#51)
    by Michael Masinter on Thu May 03, 2012 at 02:26:44 PM EST
    Just for the record, neither I nor any of my family works for the Herald, or for any other newspaper, magazine, or other media.  I'm just someone with a deep belief that the first amendment guarantee of a free press extends much further than the freedom to report with lawyerly precision an ongoing very public criminal prosecution.  I make arguments based on the law and facts as I see them, not as a shill for someone else (and that's why I post under my real name).  

    As for the asserted inaccuracy in the story, see Gandydancer's post # 46; I wish I had written it myself.  And no, I'm not related to Gandydancer; I don't know who he/she is, and neither one of us is a sockpuppet.

    Parent

    I've asked commenters (none / 0) (#54)
    by Jeralyn on Thu May 03, 2012 at 02:32:35 PM EST
    not to review the details of the content on any of the sites. I've explained why in detail. I do not want to contribute to prejudicing the proceedings. Please respect this.

    Parent
    A fair request (none / 0) (#59)
    by Michael Masinter on Thu May 03, 2012 at 02:59:37 PM EST
    I have honored it before, and will continue to do so. I presumed the earlier comment to which I linked was acceptable, particularly since it quotes language in the article to which you linked in the main post.  If I erred, I regret it, and I will try to honor your request; we share a belief in Zimmerman's right to a fair trial based on the evidence presented through the judicial process even when we disagree about how best to ensure that right.

    Parent
    Profiling (none / 0) (#42)
    by ScottW714 on Thu May 03, 2012 at 09:39:18 AM EST
    As mentioned in the post, GZ profiled TM that night, the question is was it based on race.
    In addition to racial profiling, there's drug courier profiling, terrorist profiling, and many more.

    Not to point out the obviousness of the profiles above are almost always based on race.  How does one profile a drug courier or a terrorist without race ?  Not saying it doesn't happen, or that's effective, but let's be real here, those profiles are notoriously based on race.

    But more importantly, how many profiles were available at night from a distance, maybe 3.  Suggesting race could have been one isn't wild speculation, and to a non-legal person like myself, it's seems likely.  Now add it his My Space, which show a pattern of stereotyping and it's not a huge leap to think GZ used race.

    Not saying he did, but certainly suggesting it isn't out of the realm of reality and at this point, it's not going to help him.

    The My Space page was discovered this week, it certainly stands to reason that a couple weeks ago the prosecution didn't know about it.  The fact that didn't mention is proof of nothing, well except they didn't know about it.

    One last thing, why does this matter ?  The reason as to why he was following TM doesn't seem relevant as far as a self defense of SYG defense.  If he was profiling TM because of his race, his clothes, his age, does that make his defense any different ?

    GZ is not a state actor (none / 0) (#43)
    by jbindc on Thu May 03, 2012 at 09:49:18 AM EST
    There is nothing illegal about him profiling someone because of race, sex, eye color, weight, occupation, interests, hobbies, or amount of tooth decay.

    Parent
    True, but if he was profiling (none / 0) (#47)
    by ruffian on Thu May 03, 2012 at 01:20:56 PM EST
    based on race he does not get to cry foul when people say race had something to do with what happened that night.

    Parent
    this is not about what people are saying (none / 0) (#111)
    by Jeralyn on Fri May 04, 2012 at 04:35:53 PM EST
    but what the state is alleging in the criminal case.

    Parent
    the state has refused to comment (none / 0) (#55)
    by Jeralyn on Thu May 03, 2012 at 02:36:09 PM EST
    on the my space page now that it does know.

    No, the question is not whether racial profiling could be inferred. It's whether the reporter's statement that racial profiling is a crucial element of the case was inaccurate.

    Parent

    Depraved Mind (none / 0) (#64)
    by nomatter0nevermind on Thu May 03, 2012 at 03:26:13 PM EST
    It's not about rebutting Zimmerman's justification claim. It's about showing the 'depraved mind' that is an element of murder in the second degree.

    Fla. Stat. § 782.04

    Parent

    reporter Robles reaches beyond (none / 0) (#69)
    by michele on Thu May 03, 2012 at 04:50:40 PM EST
    Out of curiosity I linked to Francis Robles tweets, unfortunately I doubt we will see much restraint, the media has become venal

    10:07 AM - 2 May 12 via HootSuite · Details
    2 May Frances Robles Frances Robles ‏ @RoblesHerald

    @GZlegalCase Sounds kinda like a thinly veiled threat, no?

    responding to:

    Zimmerman Legal Case ‏ @GZlegalCase

    ONLY in court. NOT publicly .RT @roblesherald: O'Mara hints that if Crump criticizes #Zimmerman's Myspace, Trayvon's tweets will be fair...

    Willie, you are off topic (none / 0) (#84)
    by Jeralyn on Fri May 04, 2012 at 01:04:14 AM EST
    Please take a discussion of the facts to a thread about the facts or an open thread. I'd appreciate you copying your comments and saving them, so I can delete these. I was very clear about the topic here. Thanks.

    is depth of DoJ investigation relevant here? (none / 0) (#91)
    by willisnewton on Fri May 04, 2012 at 11:22:46 AM EST
    Is the depth of the DoJ investigation relevant here?

    Because it's discussed above in posts 27 on...  in reference to earlier claims.  The issue of racial bias touches on the heart of the topic here, and jurisdiction of that seems to be federal in part.  

    I'll gladly take my comments elsewhere, but in my defense I started commenting because of a quite similar issue - the sloppy press reports that are mischaracterizing many important elemets of the ongoing case on a daily basis.  

    As i said above (which will soon be deleted to protect the topic at hand)   - "It just upsets me when a journalist lets a story slip by due to them not having thought through the facts beforehand. "

    cheers
    wn

    no this is not about the doj investigation (none / 0) (#106)
    by Jeralyn on Fri May 04, 2012 at 01:38:49 PM EST
    it's about the criminal case and Miami Herald claim that racial profiling is a crucial component of it.

    Parent
    There was nothing objectionable (none / 0) (#108)
    by Jeralyn on Fri May 04, 2012 at 02:10:14 PM EST
    in the deleted comments. They were not on the topic of this post. I repeatedly asked commenters to stay on topic and said what the topic was.

    I spend a lot of time writing these posts, and I am interested in commenters' response to them. There are other threads where you can post your factual theories and your belief as to whether race should be a component or the federal investigation.

    This post was about a reporter who in my view inaccurately stated racial profiling was a "crucial element" of the criminal case.

    I have also recommended you save your comments on your computer in case your comment gets deleted.

    I recognize readers work equally hard at drafting their comments, but you need to put them in the right threads.

    This has nothing to do with which side you are on, it has to do with being responsive to the topic under discussion.

    Typical journalism (none / 0) (#112)
    by dontknowme on Fri May 04, 2012 at 07:24:05 PM EST
    Jeralyn's thesis: "I'm not saying the Herald was wrong to report on its discovery of Zimmerman's My Space page. I'm saying it should have done so ...without falsely stating the premise of the state's case and its critical elements, and thereby ...leading readers to believe a social media war was likely to occur in court..." is, without question, appropo and unassailable.

    However it also posits an ideal concept of "responsibility" that has never existed in the newsroom of any "hard news" daily. Reporters are always pushing deadline and trying to get stories out ahead of other news sources. They don't have time to research and fact check everything. They stuff the 'new' part of the 'news' into pre-existing narrative frameworks. That's why journalists call it a 'peg'. It's already there, and all you have to do is hang your facts on it.

    So what Robles did here was nothing out of the ordinary. That doesn't make it right. But it not really a newsworthy moral lapse if its the same thing that happens every day at every paper on almost every story, which it is. "Dog bites man." in reporter speak.

    Is it worthy to want better, expect better, demand better. Hell yeah. But this is a systemic issue, not a case of some reporter for the Herald being a bad egg, and putting the focus there isn't misleading in its own way.

    As far as the other aspects of the story go, I note that Mark O'Mara has conformed the provenance of the MySpace page, which makes it a more valid subject for a story than materials that have supossedly been pulled from social media sites alleged to have been created by Trayvon Martin, but not verified as such.

    To report on any such material without proper attribution would be a journalistic faux-pax, since both entire social media sites and contents allegedly drawn from same can be very easily forged.

    But again, that's par for the course these days. Lawrence O'Donnell had a fit on-air while speaking to Orlando Sentinal reporter Rene Stutzman over her weak attribution in a story about the Sanford Police leaking details of George Zimmerman's statement. O'Donnell was off base to an extent, as he focused in on a specific quote that lacked attribution, implying that the entire article lacked attribution, which it did not. However, while there was some attribution in Stutzman's piece, it was very weak and certainly could have been considered misleading. But none of this is in any way unusual (sad as that may be to say...)



    dontknowme (none / 0) (#113)
    by Jeralyn on Fri May 04, 2012 at 08:49:47 PM EST
    please see the other thread you commented in. I had to delete and repost your comment using asterisks in the words with profanity. I also deleted an opinion of yours that wasn't involved in the misquotes you were referring to.

    Please don't use the actual words here, for the reasons I explained here.

    Otherwise, thanks for contributing. You clearly have some knowledge of the tv news business that is helpful to the discussion and it is appreciated.

    Parent

    unconsious factors (none / 0) (#114)
    by michele on Sat May 05, 2012 at 12:46:15 PM EST
    "Whoever controls the media, the images, controls the culture."

    Allen Ginsberg

    Parent