Wherein Kenneth Jost Shows Himself to Be Pretty Ignorant

Kenneth Jost, who authors the blog “Jost On Justice,” has a piece entitled In Trayvon’s Memory, Repeal ‘Stand Your Ground’ Laws. It is a piece that terrifies me.

Note upfront: I’m NOT taking any position on whether Zimmerman has an affirmative defense in the shooting death of Trayvon. I am taking a position on how little Jost seems to know about the criminal justice system and about making persuasive arguments.

First, he opens with references to states that have reacted to “senseless crime[s]” by enacting legislation that is a “lasting legacy to an innocent victim.” This doesn’t have too much to do with the nature of the criminal justice system but I still feel inclined to comment on it. I don’t this find appeal sympathetic or persuasive. Why would a victim need a lasting legacy? In an attempt to right a wrong, you say? But how does legislation do that? The wrong is already done and any restitution that is necessary comes from the prosecution of an individual defendant. Criminal law is at its best when it focuses on making society safer by deterring and rehabilitating. To the extent that legislation might accomplish such a goal then I am not facially opposed to it. Enacting legislation just for the sake of reminding us that someone wronged another at some point seems pretty senseless without any other motivation.

Second, Jost continues to say: “Trayvon Martin, an innocent victim of what is now officially alleged to be a senseless crime . . . .” (emphasis added). Wow!! In less then a sentence, Jost has declared the decedent is a victim, an “innocent” one and proclaims this official because the crime has been “alleged to be” a “senseless one.” Where to begin…

Let’s start with his proclamation that Trayvon was an innocent victim. How does Jost know? I’m 99.99% sure he wasn’t there as a witness so I guess…maybe…no. I’ve got nothing. He’s just relying on whatever the media or the prosecution has put out. I’d give him a pass if the case had already been tried and he had been a juror or heard the testimony presented. Yet, we really know next to nothing. We don’t even have a proper “he said/she said” here. Bottom line: Jost has jumped to a rush judgment about whether Zimmerman has a proper affirmative defense. You’d expect someone with an A.B. from Harvard and J.D. from Georgetown to be a little better at critical thinking and open-mindedness.

I also love how declares that this shooting is “officially alleged” to be a senseless crime. Officially alleged? What does that even mean? I think he’s getting at the fact that there’s now an indictment but if you read the words “officially alleged” even a few times you start to realize how silly this is. It’s a senseless crime because someone said so? If I officially allege that I passed the bar, does that mean I actually did? Do I have to take the bar exam now? [Hint: the answer is ‘yes.’]

If a party to a lawsuit writes something in a complaint or indictment, it is naught but a claim/contention. Its veracity has to be tested in court before we know if its true under the law. It seems a bit foolish to use one party’s mere contentions as the backbone of the assumption that this was clearly a senseless killing.

Third, Jost goes on to suggest that legislatures should rewrite their self-defense laws so that “Trayvon Martin . . . [didn’t] die[] in vain.” See my comments about how Jost rushes to judgment here without any real evidence regarding the propriety of a self-defense claim. We simply don’t know yet if there was any reason to shoot; any justification. There’s not enough evidence and certainly nothing that’s been tested by the rigors of a court operating under evidence law. Crucify Zimmerman in the court of public opinion all you want but don’t recruit legislatures to make more victims rights legislation before we even have a legal determination on whether there’s a victim in this case.

Fourth, Jost spends a few paragraphs saying actually very little about “Stand Your Ground” laws. He ultimately makes the incredibly persuasive observation that “Florida’s law may or may not prove determinative in the case . . . .” Well, gee thanks for this insight. Sarcasm aside, he’s entirely right to point out that the “Stand Your Ground” laws may actually have no real place in this case at all. Indeed, David Kopel has a lengthy post explaining why here. In light of that fact, doesn’t it seem a bit premature to start suggesting legislation in Trayvon’s honor that repeals “Stand Your Ground” when it’s not even apparent that the “Stand Your Ground” law is to blame?

Fifth, Jost has it that the case is in the good hands of the special prosecutor and praises the indictment as “a succinct statement of the evidence supporting the charge . . . .” Really? Have you read the thing? Seems pretty thin to me. And it turns out others in the blawgosphere seem to agree. Scott Greenfield, the author of Simple Justice, points out several attorneys who have ranged from calling the doc “stunningly weak” to a “piece of crap.” Glad to see I’m not the only one thinking that.

Sixth, Jost wants you to know that “Stand Your Ground” laws have made the public streets more dangerous. Of course, like most of the other things he’s said, he doesn’t really have any first-hand knowledge of this. Rather, he relies on what “law enforcement officials” have claimed. Very persuasive (sarcasm added). Who are these cats? A few officials or a bunch? How do they know this? Is it just from what they’ve seen on the streets? Give me some statistics and methodology of how the regressions were performed. Give me an F score or an R-squared. Or a chi-squared. Give me something more, man! Telling me that some cops have anecdotally found the law makes us less safe is laughable.

The Bottom Line: I’ve never hid the fact that I am pro-defense. I’m nothing if not dedicated to a fair defense. That means I defend you if you’re Black. That means I defend you if you’re White. I don’t rush to judgment; I question everything. And today, I question how much Kenneth Jost actually knows or how carefully he actually thinks. When I was an undergrad at UofC, I learned a valuable lesson: the things we believe most are the ones we need to question the most. This is a lesson Jost still needs to learn.

-Zachary Cloud

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