Is the Murder of Trayvon Martin a Hate Crime?

These are the most difficult cases for so many reasons.  Charging someone with a hate crime escalates the level felony and sentence, starts a media firestorm, and provides a set of standards through which the public will judge a case.

What is a hate crime?  Under New York law, it's a two part analysis.  First, the crime committed must be one enumerated by the legislature.  Examples of this are assaults, murders, robberies, arsons, burglaries, and rapes.  It is an expansive list.

The second step is that the suspect intentionally select the victim because of a belief regarding race, color, national origin, ancestry, gender, religion, age, disability or sexual orientation.  This is where it gets complicated.

White on black, black on white, Hispanic on black, white on Arab, or any other combination does not automatically elevate a crime to a hate crime.  There must be proof beyond a reasonable doubt that the victim was targeted because of their status.

It adds an element to the crime.  Some states will not charge a hate crime because of this additional burden.  In an assault case, we only have to prove the defendant intentionally caused injury to a person.  If it is charged as a hate crime, we now have to prove the crime was motivated by hate for a class of people.  If not, the jury can acquit the defendant.

A few examples from cases:

An African-American victim is walking down the street holding a cell phone.  Four African-Americans jump him, beat him up, and steal his phone.  During the assault they call him a "faggot."  The victim is homosexual, but never saw the defendants before in his life.

An African-American suspect calls a cab.  An African-American driver comes in a small taxi.  The suspect asks for a van.  A Somali driver comes in a van.  The suspect takes his money and phone, and shoots him in the head.  Seven months later the same suspect and two Hispanic men agree to rob a cab.  The suspect tells them he has done it before.  He also says that they cannot rob "black or white cabbies, they don't carry no money.  You gotta do an Arab.  They carry all the cash."  They then rob a Pakistani driver at gun point.

What do you think?  Are these hate crimes?

I've discussed the ability to use a person's prior bad acts against them.  The courts dislike the practice.  But, with hate crimes, isn't the only way to get proof of a person's beliefs to investigate their history and see their views against a class of people?  It is very rare that we get any evidence during a crime to show us it was racially motivated.  Don't hate crimes now require us to judge a person's past too?

Federal courts do not have jurisdiction over murders or other cases without some special connection.  The only way the federal government will prosecute George Zimmerman is if they determine the crime was racially motivated.

Media, investigators, attorneys, police, and private citizens are digging into George Zimmerman's history as we speak.  Any racially motivated acts will be uncovered.  The real question becomes what does the government do with that information?  If it exists, can they use it against him?  How far back can they go?  Is it fair?  Or should they only be able to use the facts that surrounded the actual event?

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Trayvon Martin and Justification

An explanation of justification appears in order in light of the Trayvon Martin case.  Justification is the legal term for self-defense.  There are two kinds of justification claims.  The first is using physical force and the second is using deadly physical force.  What follows is a discussion of New York law on the issue.  I discuss some of Florida's differences towards the end.

Physical Force

This is the easy one.  A person may use the same force used against them.  A push for a push.  A punch for a punch.  If you exceed the level of force the attacker used, then you are not justified.  Therefore, you can't use a gun in a knife fight.  Or a knife in a fist fight.  If you do, then you cannot make a justification claim.

Deadly Physical Force


This is where it gets complicated.  A person may use deadly physical force to defend themselves against deadly physical force.  The law requires a multi-level analysis when a person claims they are justified in killing someone.  It depends on a few factors:  1) who was the initial aggressor, 2) killer's actual beliefs, 3) what a reasonable person would believe, and 4) if the person was not in their home, could they have retreated in complete safety.

Initial Aggressor


Killing someone is not legally justified if the killer provokes the fight.  A person cannot bait someone into a fight and then kill them and claim they were defending themselves.  This is true even if the fight starts off as a fist fight.

Actual Beliefs - Subjective Analysis


This analysis takes into account what the killer actually believed.  The person must have actually believed that the deceased was about to use deadly physical force before they killed him.  It is not probably or maybe.  There must be an actual belief.

What Would a Reasonable Person Believe - Objective Analysis


The defendant's beliefs alone are not enough.  Jurors must also decide what a reasonable person would have believed in the defendant's position.  If a reasonable person knew what the defendant knew and was in the same circumstances, would they have believed deadly physical force was about to be used on them.

This is a safeguard against people claiming justified killings in every case.  New York courts have added the reasonableness requirement as an objective analysis to be used in analyzing a case.

The fact that the killer was mistaken does not matter if he honestly believed he was about to be killed and a reasonable person in his position would believe the same thing.

Duty to Retreat


A person is not required to retreat in their home.  But, if you are out on the street and someone pulls a knife on you, you would not be justified in killing that person if you could have escaped safely.  A person has a duty to retreat if they are able, as long as you are not in your own home.  New York does not have a law that allows you to stand your ground wherever you are.

To have a valid claim of justification in New York, the person must not be the initial aggressor, must have had an actual belief that the person they killed was about to use deadly physical force upon them, a reasonable person would have believed the same thing, and they must have tried to retreat.

Florida recently passed a "stand your ground" law.  Basically, it removes the duty to retreat in public.  It allows a person to kill someone if they are lawfully in a public place and feel their life is in jeopardy, without trying to escape the situation first.  From media accounts, it appears that the issue of an honest, mistaken belief and the "stand your ground" law are the biggest snags in this killing of Trayvon Martin.  I've only read the same news as everyone else.  I'm very interested to read all the witness statements if they become available.

A long post, but this video will summarize everything:

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Trayvon Martin

It's horrific.  A young, black boy is shot by an older white man (who's really Hispanic).  A police chief is suspended.  A community and nation scream for prosecution and justice.  Experts in hate crimes, self-defense, and murder spring forth with opinions.


This is the type of case that requires a thorough police and district attorney investigation.  It requires a grand jury to hear evidence and decide what happened.  Most of all, it requires a refrain from public and political pressure.

In any case, there are certain time frames that must be adhered to or dire consequences exist.  There are statutes of limitations, speedy trial rights, discovery dates, motion practice, and various other dates.  Most of these timelines begin the minute an arrest is made.  An investigation that could be thorough and meticulous is now rushed and messy.  If timelines aren't met because a case still needs investigation, the court can impose drastic remedies that can affect the case.

High profile, racially motivated cases are the most difficult to prosecute.  Every move is critiqued.  Witnesses are interviewed in local news media and the national news before we even have a chance to speak with them.  Experts provide their opinions based on media reports that don't provide the full information.  Family members cry for arrest.  Politicians use the case to garner air time.  The accused's family cries for sympathy.

Then, there is the prosecutor.  The United States Attorney in this case.  His sole focus is on directing the investigation and prosecuting any provable crimes.  Saying that the investigation is continuing doesn't make for an interesting soundbite though.

A prosecutor needs to step back from public pressure and analyze a case like it was any other.  Granted, we are all humans and it is impossible to take the pressure completely out of it.  As a society, we want prosecutors to independently analyze every case.  If a crime is committed prosecute it, no matter who the suspect or victim is.  If not, do not prosecute the case, no matter who the suspect or victim is.

A CNN poll said that 75% of all Americans want Zimmerman arrested for shooting Martin.  What if the poll said that 75% of Americans believe Zimmerman was justified?  Should that matter?  This is the kind of sweeping conclusions and opinions thorough investigators avoid.
I fully expect a grand jury to investigate the murder of Trayvon Martin.  What happens from there is anybody's guess. 

This week, I'll discuss the law of self-defense.  I'll also talk about prosecuting hate crimes.  I'll mix in as much Florida and federal law as I feel competent in delivering.

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Location, Location, Location

In preparation for a trial today, I met with a witness on Wednesday.  The trial is an embezzlement trial that has been adjourned seven times.  That's a story for a different day though.

I usually meet with witnesses in my office.  One of the main witnesses is a CPA who does the accounting for the employer who had the money stolen.  Understanding it's tax season and as a courtesy, I met with him at his office.

There was a hitch though.  His usual office was involved in a fire recently so he had moved.  The only short term space he could find while his office was repaired was in a funeral home.

Odd enough.  As I pull into the funeral home parking lot, I'm surprised to see that the building is split in half.  Half is the funeral home.  Half is a prominent personal injury attorney. 

Doesn't the attorney know he's only perpetuating stereotypes?  Maybe clients have hired him out of this arrangement.  As a client, I'd turn around when I got in the parking lot.  You'd have to be careful not to walk in the wrong door. 

If the trial goes, check back for progress and stories next week.

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Just a Little Touch DNA

I always leave these conferences with mixed opinions.  Some of the speakers are terrific.  Clear, concise, funny, and a teacher at the same time.  Some you struggle to stay awake through.  This was no different.

Two things I learned:  1) New York state forensic scientists are highly intelligent and highly professional.  The labs they work for go through rigorous review and they remain neutral when analyzing evidence and testifying.  The analyst doesn't care if the DNA will send someone to jail for the rest of their life or if it will exonerate an innocent man.  They only care about accuracy.  2) I still couldn't tell you how they get to their conclusions.  I think the only way to actually learn how DNA testing works is to do it. 

I doubt they'd let me anywhere near a lab.

Anyone that doesn't believe DNA typing is valid science should sit through this conference.  The smartest people in the world are making amazing advances in this field.  It's incredibly accurate science with a tremendous amount of safeguards.

I didn't learn any ways to keep jurors awake during the testimony, but I'll keep trying.  It will depend on the case.  If DNA is a small segment of a case, I will not focus on the scientific part of the testimony.  If DNA is the whole case, then I'll put all the jurors to sleep with incredibly detailed testimony.   

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It's in Your DNA

At least, I think it is.  I leave for a conference today in central New York on DNA.  I'll tell you after that.

I was speaking with a newspaper reporter last week about expert testimony.  He said that's the hour or so jurors go to sleep during a trial.  All they want to hear is the ultimate conclusion.  If it's a ballistics expert, they want to hear the gun worked.  DNA?  They want to hear whether the defendant's DNA was on the victim.  Medical Examiner?  How the person died.  Jurors can do without all the scientific info, he said. 

There are so many technical steps that create the expert's conclusion.  I usually don't understand it all.  The jurors understand even less.  But, attorneys feel it necessary to draw out excruciating minutiae.  Maybe boring, drawn out testimony is in our nature?

As for the conference, some are better than others.  I always enjoy seeing old friends and meeting new ones.  I hope this conference shows us how to transform the most boring part of trial to the most exciting.

See you all Wednesday with a report.

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