Many people are troubled by the idea that someone can willfully follow another person down the street, right to the person’s own home, have malicious intent, put the followed person in fear or apprehension, kill the person, and then not be held guilty of some criminal offense that includes at least some responsibility for the killing, even if perhaps unintended.
Juror B29 in the Trayvon Martin murder trial has expressed the feeling on behalf of the jury that many of us are also experiencing: “in our hearts we felt he was guilty,” she said. “George Zimmerman got away with murder … [But] the law couldn’t prove it.”
On the facts the jury knew, shouldn’t there be a law that can “prove it?”
Actually, there is such a law. In Florida: “A person who willfully, maliciously, and repeatedly follows [or] harasses … another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.” Fla. Stat. § 784.048.
“Willfully [and] maliciously” are evidenced by Zimmerman’s own words to the police dispatcher. The word “repeatedly” is not defined in the Florida statue. But the statute does define the similar term, “course of conduct,” “[which] means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” So “repeatedly” as used in the statute might simply mean “continuously” or “sustained.” George Zimmerman did sustain his following of Trayvon Martin “over a period of time, however short, which evidence[d] his continuity of purpose” in targeting Trayvon Martin to challenge his presence in the neighborhood. Indeed he repeated his following of Martin even after the dispatcher told him he did not need to do that.
Such stalking may be motivated to get the targeted person out of the neighborhood, to bully, to feel physically superior to another person for an ego boost, to look for a fight or confrontation, or any other reason. If it was intended to and did credibly threaten a 17 year old who is on the street alone at night, that is a felony in Florida. Zimmerman apparently had sufficient experience with such matters to know the effect his behavior would have.
Each state has different laws covering this issue. Before stalking or felonious menacing laws were enacted this offense would come within the general meaning of assault. Acts that are intended to and do put another person in reasonable apprehension of immediate physical harm constitute the common law crime and tort of assault. Following someone in a threatening way that puts them in fear or apprehension is one way of committing an assault.
Ohio’s stalking law contains additional detail that identifies the specific aggravating circumstances that generally concern people about the Trayvon Martin case.
Ohio law provides:
“2903.211 Menacing by stalking.
“(A) (1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person.
“B)(2) Menacing by stalking is a felony of the fourth degree if any of the following applies: …
(d) The victim of the offense is a minor.
(e) The offender has a history of … other violent acts toward … any other person.
(f) While committing the offense … the offender had a deadly weapon on or about the offender’s person or under the offender’s control.”
This pretty well describes the specifics of the wrong that many are concerned that George Zimmerman actually did commit. Criminal law is intended to protect not just victims, but society’s interests. Society does not want people with a known propensity for violence going about the streets armed and stalking minors. This is independent of what he or the victim knew about these aggravating circumstances.
Felonious menacing or stalking may not be a serious enough crime to suit the circumstances of loss of life. But in Florida there is a very strict felony murder law that is designed to address just that concern, that when life is unnecessarily lost, even if unintentional, there should be heightened responsibility.
Felony murder laws assure that if Zimmerman started something unlawful – namely felonious stalking – that got out of control for whatever reason, resulting in loss of life, he must take some responsibility for that loss of life.
In Enmund v. Florida, 458 U.S. 782 (1982) the U.S. Supreme Court thought Florida set the level of that responsibility too high. In that case a robbery get-away driver was convicted under Florida’s felony murder law although he did not pull the trigger, did not touch a murder weapon, was not present at the murder scene, did not know about or discuss the prospect of the murders until after they happened, and so had no intent to kill. In the U.S. Supreme Court, four Republican dissenters would have allowed Florida to execute the driver for felony murder anyway, even though all he did was drive and had no intent to kill. But the majority preferred him to have actually participated in the killing in some way if he was to be executed for it, but also would not require evidence of intent to kill.
In Florida, aggravated stalking furnishes a predicate for felony murder. Fla. Stat. § 782.04(1)(a)(1.n) punishes any “killing of a human being … committed by a person engaged in the perpetration of, or in the attempt to perpetrate … aggravated stalking.”
By repeatedly following and then confronting Trayvon Martin, was George Zimmerman attempting to communicate a credible threat to Martin, perhaps that Martin should leave what happened to be his own neighborhood?
Many people think that, whatever his motive, this is what Zimmerman did. Unless there is a civil suit or a retrial on this criminal charge, it will be difficult to determine whether this felony, more likely than not, did happen.
The criminal trial jury was not asked to decide that question. It was led astray by being asked to focus on the end rather than the beginning of the fatal encounter. As juror B29 said about the charges, “a lot of us that wanted to find something bad, something that we could connect to the law, because for myself he’s guilty. … But as the law was read to me if you have no proof that he killed him intentionally you can’t say he’s guilty. … As much as we were trying to find this man guilty…there was nothing that we could do about it.” Distraught about voting to acquit Martin’s killer, she said “I feel I killed him,” but pointed to “the choices that they gave us” as responsible.
If the criminal trial jurors had been given the choice to decide whether Zimmerman was engaged in or attempting felonious stalking prior the fracas that the jurors were asked by the prosecutors to decide upon, then exactly what happened during that fracas that caused the killing, which is not really knowable beyond a reasonable doubt in any event, becomes irrelevant. The purpose of felony murder is to attach responsibility for a killing not because of the killer’s intent or how the killing took place but because it was committed by a killer who was “engaged in” a felony like aggravated stalking. There can be no question that without Zimmerman’s original stalking neither the fracas nor the killing would have happened.
If Zimmerman had been charged with, and convicted of aggravated stalking he would also have been guilty of first degree felony murder, a capital offense in Florida. In that event, in our hearts we along with the jurors, could feel justice had been done. Instead we, like the jurors as reported by Juror B29, are left with the false impression that the law on the books is not written to protect us from a murderer who got a way with it.
But it seems like it is more the judicial system that failed us and the jurors in this case by failing to use the laws on the books. If that failure means the civil right of Trayvon Martin to walk the streets was denied with impunity, a result which makes the civil rights of all of us less secure, then a federal prosecution or retrial on these new charges would be appropriate. For double jeopardy purposes, it is not clear that first degree capital felony murder is a lesser included offense of manslaughter or second degree murder, particularly since stalking was not an element of the latter offenses.
Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief in the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on law reform and anti-corruption issues.
Rob can be contacted at http://www.linkedin.com/profile/view?id=132806564HYPERLINK “http://www.linkedin.com/profile/view?id=132806564&trk=hb_tab_pro_top”&HYPERLINK “http://www.linkedin.com/profile/view?id=132806564&trk=hb_tab_pro_top”trk=hb_tab_pro_top
In the spring of 1944, in the quiet little town of Alcolu, South Carolina, two young girls, Betty June Binnicker, age 11, and Mary Emma Thames, age 8, were brutally murdered while picking flowers along a railroad track. Their bodies were found in a nearby water filled ditch. The cause of death was determined to be multiple blows to their skulls with a metal railroad spike. A Mr. George Stinney was soon arrested for the murders. While there was no physical evidence or eyewitness accounts linking the defendant to the crime, unfortunately for Mr. Stinney, the two girls were white. He was black.
Two white police officers were able to get a confession out of Mr. Stinney within an hour, behind closed doors. It was the only evidence offered up during his trial, a trial that was held in one day and lasted only two and a half hours. It was attended by 1,500 people, all of them white. Blacks were not allowed in the courtroom. Mr. Stinney, his family having been driven from their small town, faced the trial alone. Council for the defense offered no evidence on its client’s behalf, and it requested no psychiatric evaluation of the defendant. A guilty verdict was reached after only 10 minutes of deliberation by the (all white male) jury. No recommendation for mercy was given. Had Mr. Stinney’s lawyer filed a simple one sentence appeal, the execution would have been automatically stayed for at least a year. But this was impossible due to the fact that Mr. Stinney did not see his attorney again from the time he left the court. Furthermore, his attorney never spoke to any members of the defendant’s family, let alone inform them that they had the right to appeal the death sentence. Just 81 days after his arrest, on June 16, 1944, Mr. Stinney would walk into the execution chamber.
There is one more tragic element to this already tragic story. Mr. George Junius Stinney Jr. was just 14 years old when he was put to death. He was the youngest person (legally) executed in the United States in the 20th century.
Being small for his age, weighing just 95 pounds (approximately 43 kilograms) and only five feet one inch tall (approximately 1.5 meters), it was with great difficulty that the death sentenced was carried out. But carried out it was. His small body was propped up with books in order to get him to fit properly in the electric chair (the original designers having carelessly overlooked the fact that one day their device might be used to execute a small child), allowing for an electrode to be attached to his right leg.
One commentator reported that George said nothing as the mask was lowered over his face. But after the first 2,400 volts passed through the boy’s small body “the death mask slipped from his face and his eyes were open when two additional shots of 1,200 and 500 volts followed.” George’s head “went up and the mask came of his face … and saliva and all was coming out of his mouth and tears from his eyes.”
The Governor, Olin Johnson, had received hundreds of letters and telegrams asking for leniency for the young boy. But facing a primary election in July, the Governor was not inclined to grant clemency. One telegram compared the execution of a child to something that Adolf Hitler would do. A stinging and bitter accusation considering that American troops had just landed on the beaches of Normandy ten days earlier in the D-Day invasion to liberate France from Nazi occupation and terror. On that one day alone, 9,000 Allied soldiers would die or be wounded fighting the Germans.
It can be argued that the execution of a 14 year old child was a social aberration from a bygone era. A simple anomaly. An isolated case that “fell through the cracks.” A repulsive event from a period when America was still suffering from racial and social ignorance. Surely, as a society, the United States has progressed far beyond the days of when it tolerated the State sanctioned execution of children, has it not?
Two pilots are sitting in an air-conditioned windowless room in New Mexico. Before them sit an array of 14 computer monitors and four keyboards. 6,250 miles away (about 10,000 kilometers) they are controlling a Predator drone that is circling lazily in a figure eight pattern over Afghanistan. They are observing a crude house made of mud when the order is given to launch a laser guided Hellfire missile at the target. With just seconds to go till impact, a small child walks out from behind one of the corners of the structure. A flash on the control screen confirms the impact and explosion, with parts of the structure collapsing and the child disappearing.
“Did we just kill a kid?” the co-pilot asks the pilot.
“Yeah, I guess that was a kid,” the pilot replies.
Confirmation as to whether or not a missile strike had just been carried out on a child was requested. “No. That was a dog,” comes the anonymous response from a military command center.
The pilots review the video of the drone strike that had just taken place.
A dog on two legs?
One of the pilots is no longer in the Air Force, declining to renew his enlistment contract when it was up. After 6,000 flight hours and six years of military service he says “I saw men, women and children die during that time. I never thought I would kill that many people. In fact, I thought I couldn’t kill anyone at all.” He has since been diagnosed with post-traumatic stress disorder by doctors with the Veterans’ Administration.
While the above incident could be deemed an “accident,” apparently the targeted murder of children is now accepted US military policy.
Lt. Col. Marion “Ced” Carrington, Commander of 1st Battalion, 508th Parachute Infantry Regiment, states, “It kind of opens our aperture. In addition to looking for military-age males, it’s looking for children with potential hostile intent” as well. While the Lt. Col would not elaborate on what exactly are the rules of engagement when encountering potential child combatants, reassuringly he tells us that he advises the soldiers serving under him to use “courageous restraint.”
Apparently this “courageous restraint” was lacking on October 14, 2012, when US Marines operating in Helmand province requested, and got clearance for, an airstrike on “shadowy figures” thought to be in the process of setting up an improvised explosive device (IED). The assailants killed in the strike turned out to be three children who were 12, 10 and 8 years old.
The International Security Assistance Force (ISAF), a part of NATO and the organization that is nominally in command of the war (the reality being, of course, that it is a US led affair), said that it may have “accidentally killed three innocent Afghan civilians.” Family members of the victims reported that the children were sent to gather dung, which is used for fuel.
America’s first war in Iraq and its associated sanctions are believed to have resulted in the deaths of over half a million children. America’s second war in Iraq is believed to have resulted in the deaths of over 600,000 Iraqis (most of them between the ages of 15 and 44). America’s targeted drone attacks in the Tribal Regions between Afghanistan and Pakistan have reportedly killed between 474 and 881 civilians, including 176 children
If these were the actions of China, Russia, Iran, or any other country on Earth, we would be able to see them clearly for what they are. War crimes and crimes against humanity of the highest order. We would also realize that they are the actions of a society that is in moral decline.
Why it is impossible for the vast majority of Americans to see this is incomprehensible.
Acknowledgement: The author would sincerely like to thank Professor Bryan A. Stevenson, founder and Executive Director of the Equal Justice Initiative, for making him aware of the story of George Stinney.
Tom McNamara is an Assistant Professor at the ESC Rennes School of Business, France, and a Visiting Lecturer at the French National Military Academy at Saint-Cyr, Coëtquidan, France.
“Afghan kids recruited for suicide attacks” by Joe Gould and John Ryan, July 18, 2012, Army Times. Accessed at:
“Attempts to clear name of 14-year-old boy who was executed in South Carolina 67 years ago” Reporter: Mark Potter, Anchor: Brian Williams, NBC Nightly News 6:30 PM EST (NBC News Transcripts), October 4, 2011.
“Attorney Decries Juvenile Executions (From Young Blood: Juvenile Justice and the Death Penalty, P 159-165, 1995, Shirley Dicks, ed. – See NCJ-166057)” by D. Bruck, 1995. Accessed at:
“Columbia Journal; Prison Lures Them In (as Tourists)” February 22, 1994, The New York Times. Accessed at:
“D-Day June 6, 1944” United States Army Official Homepage. Accessed at:
“Do Targeted Killings Work?” by Daniel L. Byman, Senior Fellow Foreign Policy, Saban Center for Middle East Policy, July 14, 2009, The Brookings Institute. Accessed at: http://www.brookings.edu/research/opinions/2009/07/14-targeted-killings-byman
“Iraq Sanctions Kill Children, U.N. Reports” by Barbara Crossette, December 1, 1995, The New York Times. Accessed at:
“Living Under Drones: Death, Injury, and Trauma to Civilians From US Drone Practices in Pakistan” the International Human Rights and Conflict Resolution Clinic (Stanford Law School) and the Global Justice Clinic (NYU School of Law), September 2012. Accessed at:
“Questions Raised in Deaths of Afghan Children in Coalition Strike” by Alissa J. Rubin, October 17, 2012, The New York Times. Accessed at:
“Some Afghan kids aren’t bystanders” by Dan Lamothe and Joe Gould, December 3, 2012, Military Times. Accessed at:
“Study Claims Iraq’s ‘Excess’ Death Toll Has Reached 655,000” by David Brown, October 11, 2006, The Washington Post. Accessed at:
“The Human Cost of the War in Iraq: A Mortality Study, 2002-2006” by G. Burnham, S. Doocy, E. Dzeng, R. Lafta and L. Roberts, with the Bloomberg School of Public Health at Johns Hopkins University, Al Mustansiriya University and the Center for International Studies at the Massachusetts Institute of Technology, October 11, 2006. Accessed at:
“The Merciful Executioner: Spectacles of Sexual Danger and National Reunification in the George Stinney Case, 1944” by Annette Louise Bickford, University of Toronto, Southern Anthropologist Vol. 35, No. 1, 2010
“The Woes of an American Drone Operator” by Nicola Abé, December 14, 2012, Der Spiegel. Accessed at:
“War in Iraq: Humanitarian Relief Efforts” April 11, 2003, The Washington Post. Accessed at:
“When Something Wicked This Way Comes: Evolving Standards of Indecency – Thompson and Stanford Revisited” by J. L. Whitney, 46 Clev. St. L. Rev. 801 (1998)
“World: Middle East Iraqis blame sanctions for child deaths” by Jeremy Bowen, August 12, 1999, BBC. Accessed at:
Photo – George Stinney, 1944, executed at age 14 years old (Photo credit: Wikipedia)
- US sets records with number of drone strikes in Afghanistan this year (rt.com)
- Newtown kids v Yemenis and Pakistanis: what explains the disparate reactions? [2 of 2] (wondersofpakistan.wordpress.com)
In its 2012 Annual Survey of Violations of Trade Union Rights released June 6, 2012, the International Trade Union Confederation found that Latin America remains the most dangerous region of the world for trade unionists, with Colombia again leading the world, followed by Guatemala.
The ITUC says 29 trade unionists were reported murdered in Colombia in 2011, with 10 more in Guatemala, together accounting for a bit over half of the 76 trade unionists reported murdered in 2011. Colombia’s share of total murders dropped significantly, however, reflecting a decreased in 2010 murders of 51, representing 55% of the 92 trade unionists murdered in 2010.
Ironically, Colombia and Guatemala are also the two countries in Latin America that have been at the heart of U.S. policy on worker rights and Free Trade Agreements, with the Obama Administration pushing forward with implementation of the Colombia FTA in mid-May despite insufficient progress on worker rights while continuing to deal with a CAFTA (Central America Free Trade Agreement) labor complaint on Guatemala filed over four years ago that has yielded little progress even as violence against Guatemala unionists has escalated.
In a welcome and some say historic development, the conservative Guatemalan agribusiness sector has called on its own government to investigate and prosecute those responsible for the violence that has been directed at the country’s largest union, Sitrabi, which represents Del Monte banana workers and is a filer of the CAFTA labor complaint. Sitrabi reports that seven members of its union members have been murdered since April 2011. The Camara del Agro released its remarkable letter [ English translation here] in late May; no response from the government has been reported as yet.
- Colombia: Obama’s Bloodiest Betrayal? (alethonews.wordpress.com)
- Progress or Promises? Free Trade and Labor Rights in Colombia (alethonews.wordpress.com)