Trayvon Martin as pot smoker: What Zimmerman defense stands to gain

The judge overseeing the George Zimmerman trial has ruled that the defense can discuss how marijuana use might have affected Trayvon Martin on the night of his fatal encounter with the defendant. The strategy serves several purposes.

Joe Burbank/Orlando Sentinel/AP
Defense counsel Mark O'Mara talks to George Zimmerman, with co-counsel Don West (c.) in Seminole Circuit Court, in Sanford, Fla., Tuesday, July 9. During the trial of George Zimmerman, who is charged with killing unarmed teenager Trayvon Martin, the judge has ruled that the defense can discuss how marijuana use might have affected the teenager on the night of his fatal encounter with the defendant.

On what may be the last day of testimony in the trial of George Zimmerman, who is charged with killing unarmed teenager Trayvon Martin on a rainy Florida evening in early 2012, jurors are expected to hear Wednesday about the small amount of marijuana found in the teenager's blood – evidence that allows the defense to argue that pot-smoking could have contributed to a deadly encounter that eventually made news around the world. 

In a case in which racial tensions and contention over America's gun culture provide a backdrop, the marijuana testimony would prominently introduce another cultural flash point concerning drug use and perceptions of drug users, especially male African-American drug users. 

“Pot before shot,” a Drudge Report headline proclaimed, after Florida circuit court Judge Debra Nelson reversed a previous ruling on Monday, agreeing that the defense can present to the six-woman jury testimony concerning Trayvon’s marijuana use.

Medical examiner Shiping Bao testified last week that he had concluded that the amount of THC – the psychoactive compound in marijuana – in Trayvon’s body “could have no effect or some effect” on his behavior the night of the encounter with Mr. Zimmerman.

With Judge Nelson’s reversal, the defense has an opening to try to cast the 17-year-old's marijuana use as a moral marker – to present Trayvon not as a baby-faced boy but as a more menacing and impulsive character who may have deserved what he got for punching and beating another citizen simply trying to protect his neighborhood.

In that way, say criminologists watching the trial, racial stereotypes around drug use – the black, hoodie-wearing pot smoker as menacing, the white pot smoker as hapless but harmless – could blur the jury’s impressions about what happened the night of the fatal shooting.

“There are only two possibilties regarding drugs: One is that that people are making the claim that marijuana made Trayvon Martin violent, which would be more legitimate if I’d ever once heard of stoners being violent,” says Alex Tepperman, a University of Florida doctoral student whose paper "Half-Baked: Weed, Race and the Demonization of Trayvon Martin" was presented at a conference in April. “The other claim is that marijuana use makes Travyon Martin immoral and suspicious, and should bring up questions about other activities in his life. In other words, who are we to attack Zimmerman for being suspicious of this morally loose young person?”

Trayvon’s parents and the state of Florida say Zimmerman exhibited “ill will” toward Trayvon, which colored his decision to use his gun to kill the teenager, whom he had followed and confronted, believing he was a potential criminal. Travyon was returning on Feb. 26, 2012, to the home where his dad was staying in Sanford, Fla.’s Retreat at Twin Lakes, toting a bag of Skittles and an Arizona iced tea.

On trial for second-degree murder, Zimmerman told police that he shot Trayvon in self-defense after the teenager slugged him in the nose and beat his head on the sidewalk. “Trayvon Martin caused his own death,” defense attorney Mark O’Mara said Friday.

Florida self-defense law says a “reasonable” person can defend himself with deadly force if he fears for his life or great bodily harm. The state says Trayvon is the one who had the right to self-defense after being pursued by an armed stranger.

Nelson has barred most testimony about Trayvon’s social media activities, which included diatribes about pot smoking and street fighting.

The extent to which those interests mingled, however, has been the subject of widespread Internet debate, at times straying from the scientific knowledge of marijuana.

The White House’s stance against marijuana legalization, for example, leans on a tough Office of National Drug Control Policy report on the dangers of the drug, but that report does not make the case that marijuana increases violence. Nearly two-thirds of Americans ages 21 to 54 have used marijuana at least once.

“The issue boils down to whether the Zimmerman jurors … see that there’s absolutely no credible proof that marijuana use in and of itself induces violent behavior in anyone,” writes Earl Ofari Hutchinson, author of “America on Trial: The Slaying of Trayvon Martin,” in a New York Daily News blog. If the prosecution can’t make the case that Trayvon himself was not violence-prone, he adds, the marijuana testimony could “bolster the terrifying thought the defense has worked overtime to implant, and that’s that marijuana use made Martin a legitimate target.”

Eyewitnesses have disagreed over who had the upper hand in a struggle when Zimmerman fired nearly point blank at Trayvon’s chest. State prosecutors contend that Zimmerman was a wanna-be cop on a mission, pursuing, confronting, and potentially throwing the first punch at Trayvon, and then shooting the youth “because he wanted to,” in prosecutor Richard Mantei’s words.

On Tuesday, a pathologist hired by the defense testified that the evidence matched Zimmerman’s version of events, that he was on his back being beaten when he fired.

"This is consistent with Mr. Zimmerman's account that Mr. Martin was over him, leaning forward at the time he was shot," Dr. Vincent DiMaio, the former chief medical examiner in San Antonio, told the jury.

The prosecution took nine days to lay out its case. Now, the defense is using a two-pronged strategy to persuade jurors that they can’t convict Zimmerman. The first is that Trayvon attacked Zimmerman. The second is that Zimmerman had cause for alarm to follow Trayvon, given how the teen was acting. Zimmerman told a police dispatcher that Trayvon was acting like he was “on drugs or something” as he walked through the neighborhood. In that conversation, Zimmerman can also be heard saying that “these [expletive] punks" always get away – a phrase that the prosecution says proves that Zimmerman “thought he knew Trayvon Martin” to be a criminal, although the teenager had done nothing wrong.

Given Zimmerman’s decisionmaking, he has become a stand-in for broader attitudes in society about race and crime, says Mr. Tepperman.

“We’ve constructed this idea of very menacing black drug users, and there’s no good reason why there should be this cultural divide between the two,” he says. “This is how racism gets submerged in our society, and how it becomes endemic, because you can use marijuana to label someone. You can say, ‘Well, it’s not that he’s black, it’s that he’s black and young and I can imagine him being involved in no-good activities.’ That’s an essentially racialized argument, but it can be made by people who would never self-identify as racist.”

Whether such stereotypes would play to Zimmerman’s benefit with the jury is uncertain, argues Doug Keene, a well-known jury consultant in Austin, Texas.

“What they’re trying to do is create a threatening character, and you’ve had testimony … that included the specter, if not the evidence, of Trayvon having really been extremely violent toward Mr. Zimmerman,” says Mr. Keene, a well-known jury consultant in Austin, Texas. “Then the question becomes, why would he do such a thing, and part of the answer [the defense] is going to offer is that Trayvon was wasted.

“It’s about creating a picture, developing a story that becomes more vivid for the jury,” adds Keene. “The prosecution’s response about [the toxicology report] needs to be, ‘What’s your point?’ The reality for a lot of high school kids is that even the ones that sing in the choir and volunteer at the nursing home also smoke weed.”

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