It is Sunday evening, about 7 PM, overcast, dark and cold.  A strong rain has been falling for some time.  Leaving your home—a home in a gated community—in your vehicle, you notice someone walking through the community, someone you don’t recognize.  Because you are a member of the local neighborhood watch, you’re familiar with the residents of your community.

This person is not quickly walking to a residence, which one would expect anyone on foot to do in the rain that continues to fall, but is acting oddly, doing what might be “casing” the various homes.  His path is erratic, and he is wearing a hoodie, which is obscuring his head and face.  Considering the weather, the hoodie wouldn’t normally be unusual.  Considering his behavior, it is; rather than merely keeping rain off his head, the person may be trying to hide his identity.

The person appears to be in his upper teens, and he appears to be black.  It’s dark and you can’t clearly see his face, so you’re not sure.  A significant number of the residents of the community are black, so even if he is black, you’re not alarmed or concerned by that observation alone.  In fact, not long ago, you worked hard to obtain justice for a black man abused by a relative of local authorities.  However, considering everything you’ve observed, you decide the police should check him out, and make the call.

While speaking with the police dispatcher, the young man passes you and stops to stare directly at you, moving his hands as though grasping something—a weapon?—in his waistband.  His behavior is obviously challenging, potentially hostile. Soon, he breaks into a run.  He’ll quickly be out of your sight, and the dispatcher is constantly asking you where the young man is and what he is doing so he can direct the police—who are on their way–to him.  You could follow him in your vehicle, but it’s hard to see through the rain-spattered windows and you know he could easily give you the slip in the closely packed neighborhood, so you follow him on foot, trying to keep him in sight, all the while telling the police what you’re doing and what the young man is doing.

This, gentle readers, appears to be precisely what George Zimmerman did.  I am obviously making some assumptions as to his motivations, but given the circumstances, I suspect they’re reasonable assumptions.  To this point in the encounter that ended with Trayvon Martin’s death, did George Zimmerman act reasonably?  Would any citizen, a member of a neighborhood watch or not, seeing what he saw and accurately reported to the police, be acting reasonably?  If not, what would be the alternative?  Call the police but tell them you have no idea where the suspicious person was or what he was doing?  Ignore the suspicious person entirely?

This will be one of the more important issues in the upcoming trial, if there is a trial.

THE LAW AND THE AFFIDAVIT:

The Florida Murder statue applicable to the Martin case—murder in the second degree—reads:

782.04Murder.

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

A brief FindLaw commentary on the statute is available here.  Those taking the time to read it will discover that charging second degree murder under the circumstances of the Martin case is apparently unusual.

The Elements: To have probable cause to make an arrest for murder in the second degree in Florida, one obviously must be able to prove that the crime has been committed and that a specific person committed it.  In this case, there is no doubt that Trayvon Martin died as a result of being shot by George Zimmerman.  Zimmerman admitted it and there is apparently sufficient forensic evidence to prove it, at the very least to the standard of probable cause.

However, the statute lists three elements, and because its language in linking those elements is “and” rather than “or,” all three must be proved.  They are:

(1) A human being must have been unlawfully killed, and;

(2) by means of an act imminently dangerous to another, and;

(3) that act must reveal evidence of a depraved mind regardless of human life (but without premeditation to cause the death of any particular person).

As with any statute—as I pointed out in the first installment of this seriesunless every required element of the law is fulfilled, no arrest should take place and no conviction is possible.

The Affidavit:  As I noted in a brief post on 04-12-12, the affidavit (full-sized PDF copy available here) lacks probable cause to sustain a charge of murder in the second degree.  In that belief, formed upon reading the affidavit and unaware of the opinions of anyone else, I find I am in good company

Former Federal Prosecutor Andrew McCarthy is less than impressed, and begins his National Review article: 

I strongly disagree with David French’s analysis. I’m inclined, instead, to agree with commentators ranging from former Reagan Justice Department official Mark Levin to Harvard’s Alan Dershowitz that the affidavit is stunningly weak — “unethical,” as Prof. Dershowitz puts it. In fact, I go further (which, after nearly 20 years of writing and supervising the writing of complaint affidavits, I think I’m qualified to do). This affidavit is not law, it is agitprop: invoking, for example, the explosive term “profiled” but carefully avoiding any discussion of what it means and failing to note that (a) there is no evidence of racial profiling, and (b) absent an invidious racial component there is nothing wrong with profiling (indeed, we want police to do it so that innocent people don’t get hassled).

Attorney and Conservative author and radio commentator Mark Levin shares McCarthy’s opinion.  The audio of his 04-12-12 commentary is available here. 

Liberal Harvard Law Professor Alan Dershowitz agrees.  His 04-12-12 Hardball interview can be seen here.

Scholar and author John R. Lott Jr. also weighed in at National Review Online:

Now take the charge of ‘second degree’ murder. There is no way that the affidavit justifies such a charge. In Florida, second-degree murder is defined as ‘the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.’ But if Zimmerman was being beaten, there was no ‘depraved mind regardless of human life,’ and the act ‘imminently dangerous to another’ would be justified as self-defense.

Angela Corey, the special prosecutor who filed charges, claimed multiple times on Wednesday that the prosecutors “are seekers of the truth.” In our legal system, grand juries can sometimes provide a check on prosecutors who indict based on political pressure or the desire to seek the limelight. It is no surprise that Corey avoided the grand jury.

And finally, Attorney and blogger John Hinderaker of PowerLine, also agrees.  He notes:

The Affidavit, however, suggests that, despite the extraordinary investigation that has been carried out, the prosecutor may not have much real evidence against Zimmerman. Let’s start with the observation that Zimmerman admits that he shot Martin. The only question is whether he did so in self-defense. I quoted here the Florida statutes on the justifiable use of force, including the ‘stand your ground’ portion of the law, which likely doesn’t apply. To get a conviction, the prosecutor will have to prove beyond a reasonable doubt that Zimmerman did not act in justifiable self-defense when he shot Martin.

The Affidavit is on its face a political document.

For the convenience of readers, I’m enclosing screen shots of the affidavit.  Considering the public and political interest in the case, it is amazingly brief, less than two pages of text.  It is not unusual for affidavits in support of arrest warrants to be relatively brief, but they are seldom as brief, and seldom as devoid of probable cause as this one.

Martin Charging Affidavit, Page 1

Martin Charging Affidavit, Page 2

Martin Charging Affidavit, Page 3

Affidavit Analysis: the affidavit is filed by two investigators hired by Special Prosecutor Angela Corey: T.C. O’Steen and Dale Gilbreath.  As is common and required in such documents, they list their general qualifications, which appear to be substantial.  Considering the brevity and general lack of detail of the affidavit, I can only assume they were acting on the orders of Ms. Corey or simply signed a document prepared by her or her attorney staff.  During my days as a police supervisor, any officer presenting such a document for my approval would have been in for an immediate and intense session on the requirements of probable cause and  completeness and professionalism in occupational writing.

The affidavit essentially consists of a very sparse plot synopsis, one that leaves out many of the most important and confirmed details, potentially because they are supportive of Zimmerman’s statements rather than the narrative preferred by the prosecution and media.  The first paragraph notes that Martin was on his way back to his temporary residence in the gated community with his tea and Skittles when he was “profiled by George Zimmerman.”  It also asserts: “Martin was unarmed and was not committing a crime.”

The word “profiling” has no legal or universally understood and accepted meaning, yet it is dropped into the affidavit as though its mere mention says all that need be said.  There is no mention at all of what Zimmerman is alleged to have done to further this “profiling.”  The common connotation of the term suggests irrational racial bias on the part of the police, particularly toward black people (it is sometimes co-opted by those who wish to claim the same victim status for other minority groups), which results in the unjustified harassment and arrest of black people, essentially for being black.  Profiling by individuals might properly be considered prejudice.  Many fond of victim status often call the use of common sense and experience by the police in identifying criminals to be profiling.

Apart from this, the problem is that all known evidence suggests that Zimmerman did not engage in any behavior that might resemble “profiling.”  Zimmerman’s attention was drawn to Martin not because of his race, but because of his behavior and the circumstances.  In fact, his statement to the police dispatcher about Martin’s race (Zimmerman did not tentatively identify Martin’s race to the dispatcher until specifically asked that question) was “he looks black.”  Notice that Zimmerman was obviously not certain Martin was black because it was dark and raining and Martin’s head and face were obscured by Martin’s hoodie, which was part of why he might reasonably have appeared to be suspicious.  A short time later, Martin stared directly at Zimmerman for a time and only then did Zimmerman appear to be certain that Martin was black, an observation he relayed to the police dispatcher.

This assertion of profiling is not a matter of fact or truth, but a politically shaded opinion without the slightest bit of factual, evidentiary support.

The inclusion of “iced tea and Skittles” is also quite odd.  These items contribute nothing toward fulfilling the elements of any offense, and they played no role in the incident.  If Martin had been carrying a Coke and a burger, would that too have been mentioned?  Possibly not if the tea and Skittles were included as a continuing part of the preferred narrative identifying Martin as a helpless, cherubic child–as evidenced by the fact that he was carrying and/or eating candy.  An odd thing indeed to include in a legal document, particularly one so brief and so lacking in substantial evidence.

Martin was apparently unarmed, but the assertion that he was not committing a crime is odd indeed.  If he was not, there is no need to mention it, for it’s not an element of the offense.  However, no citizen need have absolute proof that a suspicious person is about to commit a crime or is committing a crime in order to watch them, or in order to approach and speak with them.  It would seem that this assertion is intended to suggest that Zimmerman was, in watching Martin, doing something wrong, however, the opposite is true: Zimmerman was doing nothing at all wrong.  Experienced investigators surely understand this.  There is no known evidence that Martin was actually engaged in a crime when observed by Zimmerman, however, there is credible evidence that his behavior made it appear that he might be considering criminal activity, or might be about to commit it.  Obviously, Ms. Corey and her investigators want to address this, to the detriment of Zimmerman.

In the next paragraph Zimmerman “…observed Martin and assumed Martin was a criminal.”  It also notes that Zimmerman thought Martin was acting suspiciously, didn’t belong in the community, and called the police.  What actually happened—made obvious by Zimmerman’s actions and statements—was that he thought Martin might be a criminal because of his suspicious actions and clothing considered in context with the situation (night, rain, the hoodie hiding his identity, his aggressive, challenging behavior toward Zimmerman, etc.).  Zimmerman called the police so that they could do their job and determine if Martin was, in fact, a criminal or engaged in criminal activity.  If Zimmerman ever told the police that he specifically assumed that Martin was, at that moment, a criminal, the affiants surely could have mentioned it here and unquestionably supported their assertion.  They did not.

In the next paragraph, the affiants say that Zimmerman, in speaking about Martin—said “these assholes, they always get away,” and “these fucking punks.”  This is extraordinary for several reasons.  Remember that Zimmerman did not know Martin, which was in part why he appeared—behaving oddly within a gated community—suspicious.  Zimmerman was not speaking particularly about Martin, but generally about criminals who had been committing crimes in his community.  Martin might have been a part of that criminal class, but Zimmerman didn’t know that and was merely expressing legitimate and general frustration at social parasites.

Expressing such general frustration does not in any way help to fulfill the elements of the offense.  It does not illustrate an act imminently dangerous to another, nor does it reveal evidence of a depraved mind regardless of human life.  Are the affiants reckless enough to suggest that those comments reveal Zimmerman’s state of mind, and that such revelation is sufficient to provoke second degree murder?  Do they believe every resident of that gated community, when speaking of the unidentified criminals that had recently been plaguing them, should make only complimentary, honorific comments that hold them in the highest esteem for stealing and damaging their property?  Does it suggest that anyone that holds Zimmerman’s opinion of criminals is demonstrating their immediate compulsion to commit second degree murder?

There is no reason for this paragraph to be present in a very brief document other than to impugn Zimmerman.  The affiants may call Mr. Zimmerman any name they prefer and may make any implication about his character that pleases them on their own time, but they have an obligation to avoid this in the affidavit and instead must focus on fulfilling the elements of the offense.

The next paragraph asserts that Martin, after speaking with his girlfriend about someone following him, “…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.”  Again, the affiants, experienced investigators who should know better, assert as fact two things that are not proved to be factual.  If they have evidence to prove these assertions, the affidavit is a great place to present it, but I suspect they do not, and that such evidence will never be presented because it does not exist.  This is mere opinion presented as fact.

It is not known with any degree of certainty that Martin tried to run home.  I’ll explain this in greater detail in follow up articles in the near future, but briefly, the layout of the community suggests quite the opposite.  For those interested, go here for a map that will help to orient the scene in the mind.

It is known that Martin was running from Zimmerman, however, if Martin was intending to run home, in the time frame now positively established by the police, he could easily have made it home and been out of reach long before Zimmerman could have caught up with him and before the police could have arrived.  We do know that Zimmerman was running, but more likely briefly jogging or walking quickly, for a short time while on the phone with the dispatcher.  His clearly audible breathing and speech reveal only that, nothing more.  The younger, taller, far more fit Martin could easily have outpaced Zimmerman, who was not only shorter and slower, but far behind him, and probably “pursuing” only to try to keep him in sight for the police.

The most unprofessional assertion, however, is that Zimmerman “falsely assumed” Martin was going to commit a crime.  The substance of Zimmerman’s voluntary statements to the police—that part that is known—as well as the physical evidence, suggests nothing more than that Zimmerman kept an eye on Martin because of his suspicious behavior, because he feared he might be casing the neighborhood, or might want to commit some crime.  Considering the circumstances, this was not an unreasonable assumption.  Considering the fact that he was a member of the neighborhood watch, it was his duty to be observant, make such assumptions, and notify the police, all of which he did.

Simply put, one’s belief or fear that someone might be about to commit a crime–an opinion–can’t be true or false, and the accuracy of that transitory belief or fear can’t be known until the incident is over.  If no crime was committed, that does not invalidate the suspicion held by the observer, nor should it prevent them from being suspicious in the future.  Perhaps a suspect, noticing he was being observed, decided not to commit a crime.  Perhaps he simply thought the pickings were pretty slim.  Perhaps he had no criminal intent.  The affiants are apparently requiring Zimmerman—and by extension, any citizen witnessing suspicious behavior–to be clairvoyant.  They know better.

In the same paragraph, they add that the dispatcher told Zimmerman not to pursue Martin, but that Zimmerman disregarded him and “continued to follow Martin who was trying to return to his home.”  The available evidence indicates that this assertion is likely incorrect.

The dispatcher told Zimmerman “we don’t need you to do that,” to which Zimmerman immediately responded “OK.”  A visit to a Daily Caller article by Simon Templar, which has a link to the 911 audio, is particularly revealing.  It is clear that after being told not to follow Martin, Zimmerman did just that.  In fact, Zimmerman’s heavier breathing, which lasted only a matter of seconds, not minutes, had already ceased by that time.  Zimmerman was speaking in a clear, calm, normal voice, clearly not in oxygen debt as a result of extended running.  A short time later in response to the dispatcher’s request for his address, Zimmerman was reluctant to speak it out loud and told the dispatcher that he had no idea where Martin was—he lost him.  If Martin was running for home–a relatively short distance–he would have long since been indoors.

Clearly, Zimmerman did not disregard the dispatcher, and the best currently known evidence suggests that Zimmerman was not actually “following” Martin, but merely trying to get into a position where he could keep him in sight to relay his location to the police.  The investigators must have known this too.  Again, if they had specific evidence otherwise, evidence not known to the public, the affidavit would be a splendid place to use it, but again, they provide even less than is generally available to the public.

It should also be noted at this point that citizens are under no obligation to take the advice of a police dispatcher.  In many circumstances, it would be wise indeed to ignore them.  Readers might want to read my short story—a true story—posted on 04-15-12 that illustrates the difficulties the police sometimes have with their dispatchers.  Dispatchers, even the best and most competent, simply aren’t in the field.  They’re not seeing what callers are seeing and are therefore substantially limited and often in a poor position to be handing out advice that might affect the welfare and lives of people.  They have no legal authority to order anyone to do anything, nor may anyone be held accountable for failing or refusing to take their advice.  But remember that in this case, the best known evidence indicates that Zimmerman did just that, yet the investigators, under oath, say the opposite but offer nothing to prove their assertion.

The affiants end the paragraph by again asserting that Martin was “…trying to return to his home.”  Anyone taking the link to the aforementioned map can see how unlikely this was.  If Martin was truly trying to return home, he would have been home, easily outpacing Zimmerman.  Even if this was not a reasonable assumption, accurately asserting that Martin was trying to return home requires that the investigators be able to read minds, particularly Martin’s.  Unless there is evidence, such as Martin’s girlfriend being able to testify that Martin gave her a running—literally—account of his dash to his home, or eyewitness accounts of a close pursuit and overtaking of Martin by Zimmerman while Martin was fleeing headlong in the direction of his home–the confrontation took place a distance from Martin’s home–there is no way for the investigators to be able to state this as fact.  Again, if the investigators have this kind of evidence, the affidavit is an excellent place to reveal it.  The investigators surely know this as well.

The next paragraph is remarkable for what it does not say.  The affiants write: “Zimmerman confronted Martin and a struggle ensued.”  There is little question that there was, at some point, a “confrontation,” but who initiated that confrontation, and the exact nature of the “struggle” and how it occurred are matters of some concern that are not in any way addressed here.  Again, the affiants seem to know nothing of the case.  The best known evidence indicates that it was Martin, in fact, that confronted Zimmerman, knocked him to the ground with a punch that broke his nose, and jumping astride him as he lay, dazed, on his back on the ground, began beating his head on the pavement.

How do we know that this account is accurate?  Zimmerman told this to the police and the report of the responding Sanford police officers (I’ll provide a link in upcoming articles) indicates that Zimmerman’s back was wet and covered with grass and that his nose and the back of his head were bleeding.  My former Confederate Yankee (now closed to all but archival access) co-blogger Bob Owens, has the story of ABC’s doctoring of video to try to conceal Zimmerman’s head injuries.

There is no mention of any signs of a struggle on Martin or his clothing.  In fact, the sole, currently known eyewitness to the “struggle,” describes it not as a struggle but an assault by Martin, who was astride Zimmerman and beating him as he lay on his back on the ground, crying out for help.  This account, supported by actual evidence, could scarcely be more different than that stated and implied in the affidavit, and these investigators surely have access to all of the materials of the investigation, yet apparently ignored much of it in favor of maintaining the proper narrative.

As to the calls for help, and Martin’s mother’s identification of at least one voice calling for help as that of her son, not only would this kind of “evidence” almost certainly not be allowed in court, it assumes that she would be able to accurately identify the sound of her son’s voice under great stress.  Perhaps, but likely not.

Stress causes amazing changes in the human voice.  More times than I can count or remember, I’ve heard the bass voices of burly police officers and other men suddenly shoot up many octaves in pitch, well into Minnie Mouse range, when under stress.  Police officers that thought they were giving manly, authoritative commands often found them selves embarrassed by the squeaky, little girl-like voices caught on recordings, giving the very distinct impression they had been inhaling helium immediately before leaping into deadly danger.  Absent hearing themselves on tape, they would have never believed it.

In this case, much was initially made of various “experts” who determined that a voice crying for help had to be Martin’s.  Yet these experts had no recording of Martin’s voice for comparison, which is absolutely necessary in such cases.  Observant readers will notice that very little has, of late, been heard of these “experts,” particularly since the exposure of NBC for doctoring the 911 tape.  I suspect that NBC is primarily upset at being caught rather than supporting its preferred narrative by any means possible–including deception–but that’s a post for another time.

Most people are badly misled by the movies and TV.  There is no such thing as a national fingerprint registry whereby a latent print found at a crime scene can be fed into a computer which will, within seconds—or even months—spit out the dramatic result that the latent is of the right middle finger of John P. Criminal of 827 Burglar Lane, Crooksville, NY 87623.  In the same way, without multiple voice exemplars with the specific words or phrases to be examined, competent forensic audio examiners won’t attempt to hazard a guess because that is precisely what it would be: a guess.  Such matters are easily as much a matter of art and interpretation as science.

Another matter is that of the various recordings from various sources, there is no known evidence to suggest that Zimmerman and Martin, at various times and in various ways, might not have both been calling out.  The only thing we know with certainty is that Zimmerman did tell the police that while being beaten by Martin, he cried out for help but no one helped.  The sole eyewitness to the beating apparently confirmed this too.

In the next paragraph the affiants assert that Zimmerman shot Martin in the chest, Zimmerman admitted it, and that evidence recovered at the scene supports this.  This is nearly the only entirely honest and non-political statement in a document that is supposed to be, in the best Jack Webb style, “nothing but the facts.”  In fact, this is the only paragraph that actually goes to proof of a single element of the statute.

The next to last paragraph asserts that a Dr. Bao performed an autopsy that indicated Martin died from that gunshot wound.  This is a critical factor in this case.  Following is a partial list of the vital facts we don’t know about this single instant in the case:

(1) When the shot was fired, where was Zimmerman in relation to Martin?  Was Zimmerman on his back with Martin still astride him?

(2) If so, was there a struggle for the gun ongoing at the moment of discharge?

(3) Did the coroner determine and record all forensic evidence relating to the shot such as tattooing (unburned gunpowder on clothing, skin, etc.), overpressure damage to clothing and skin, the angle of travel of the bullet, whether the bullet was recovered in the body and its condition, etc.

If Zimmerman was still on his back on the ground, particularly if Martin was still astride him, one would expect the gun to have been fired at very close, even near-muzzle contact range.  This would mean that there would be considerable tattooing (embedding of gunpowder particles) on his exterior clothing, particularly the hoodie.  Unless Martin was leaning over Zimmerman when the gun was fired, his upper body mostly parallel to Zimmerman’s, one would expect that the bullet would have followed a rising track in Martin’s body, with the entry hole lower than the exit–if indeed there was an exit—but in any case, with a rising track.  If there was an active struggle for the gun when it discharged, one would potentially expect powder residue, perhaps even powder burns, even gunshot damage on Martin’s hands and/or arms and possibly on Zimmerman’s.

On the other hand, if the deranged vigilante scenario to which so many cling is true, Zimmerman would have been standing at least some distance from Martin, and likely, both were standing erect.  The track of the bullet would likely be essentially parallel with the ground, and powder residue and markings left by the discharge would be absent (if the muzzle was far enough from Martin’s body) or have an entirely different character.

Knowing the clear answers to these and related questions can tell us a very great deal about Zimmerman’s state of mind and the actions of both men, and one can be relatively certain that if the forensic evidence did not support Zimmerman’s version of the story, the prosecution would use it, yet they ignore it entirely in the affidavit.

SUMMARY OF THE AFFIDAVIT:

I’ve probably provided more information that some imagined wanting or needing, however, many public officials get away with misconduct simply because the public isn’t well informed about technical issues.  In the Martin case, and a great many others, the more you know, the better you’ll be able to come to informed conclusions.

As I earlier mentioned, I would never have allowed one of my officers to present such a poorly written document—a document that not only misrepresents the truth, but states as fact assumptions, opinions and innuendo–to another agency.  I never would have allowed them to present for charges a case that did not clearly fulfill every element of each and every crime they asserted should be charged.  Their credibility—and that of our police department—would have been shot.  And this is not, by any means, semantic nitpicking.  The very letter of the law matters, that’s why competent legislators are very careful about every word in every law.  That’s why the Founders were so careful in writing the Constitution.  They often argued passionately over single words and their denotations and connotations.

An example:  Many years ago, as a young police Sergeant, I had to deal with an older officer who just loved writing tickets in a particular school zone.  Because of the lay of the land and the placement of signs, it was very easy for people to come around a curve and be speeding before ever realizing they were in a school zone.  We called such places “cherry patches,” because one could easily “pick cherries”–write tickets–at will.

The biggest problem was that the enforcement times for the school zone written on the signs did not match the law authorizing them.  The signs gave my cherry picking officer a half hour past the statutory limit to write tickets, and he enthusiastically wrote tickets during that half hour based on the signs and not the law.  When I discovered this, we talked and after what turned into a heated discussion, I had to actually order him to write tickets based only on the law, not an incorrect sign.  If any citizen issued a ticket outside the proper time limits realized that, not only would that ticket be thrown out, it could have conceivably led to hundreds of tickets over many years being invalidated with all of the work necessary to refund fines and costs, to say nothing of the public relations damage we would have suffered.  The letter of the law matters.  If it does not, “illegal” is whatever any police officer or prosecutor says it is at any given moment, and that’s not a system under which any free man wants to live.

Let’s review the three elements of the Florida murder in the second degree statute and see how the affiants have done:

(1) A human being must have been unlawfully killed, and;

         The prosecution has established only that Martin was killed and that Zimmerman did it.  Whether that killing was lawful or not depends entirely on whether Zimmerman reasonably believed that he was in danger of serious bodily injury or death when he used deadly force.  That the prosecution is bringing charges at all essentially indicates that they believe the killing was unlawful, and the self defense issue will be argued at trial.  I’ll give this one to the prosecution: one element of the three has been at least partially fulfilled.

(2) by means of an act imminently dangerous to another, and;

         The prosecution has entirely failed to fulfill this element.  Remember that the prosecution said nothing at all about how or why Zimmerman shot Martin.  They met the first element, not the second.  If Zimmerman’s act was in self-defense, there is no case.  If the weapon accidently discharged during a struggle, there is no case for second degree murder.  The state cannot simply assume or imply; it must be specific in fulfilling this element of the statute, and it has not.

(3) that act must reveal evidence of a depraved mind regardless of human life (but without premeditation to cause the death of any particular person).

         At best, the prosecution has suggested or implied that Zimmerman was mistaken in believing Martin to have criminal intent, and as a result, was following him.  Even if they are correct—and the best currently known evidence indicates that they are not—that proves only that Zimmerman, acting in his role as a member of the neighborhood watch, potentially misread Martin’s actions and intentions.  Remember: there was no outcome that would have allowed us to accurately infer Martin’s intentions that night.  Yet, they also admitted that Zimmerman called the police and was continually on the phone with the dispatcher, asking for police help with Martin.  These are the acts of a depraved mind with no regard for human life?

THE ANGELA COREY PRESS CONFERENCE:

Corey announced the charge at a press conference, apparently reading from prepared notes.  Those notes, on her official state letterhead and in PDF form, are available here. 

In content and implication, they are disturbing.  In form, simply the most bizarre and muddled, self-serving statement by a prosecutor I’ve ever had the misfortune to see.

In the opening paragraph, Corey said:

Good evening everyone, I am Angela Corey, special prosecutor for the Trayvon Martin case.  Just moments ago, we spoke by phone with Tracy Martin and Sybrina Fulton.  Three weeks ago our prosecution team promised those sweet parents we would get answers to all of their questions, no matter where our quest for the truth led us.

“Promised those sweet parents?” Allowing for feminine exuberance and emotionalism, this is not the statement of a dispassionate, non-partisan professional.  Every prosecutor I have ever known or worked with would be embarrassed to hear any prosecutor say anything like this, to say nothing of saying it them selves.

Corey spends three paragraphs introducing her “team,” and speaking about how wonderful they are.  This section reads and feels very much like a political candidate thanking everyone who made their election victory possible.

Corey notes that the case “is much like the many difficult homicides in our circuit,” and that “we do not prosecute by pressure or petition.” Yet she immediately notes that she has had the case for less than three weeks and launched “an intensive investigation…”

Corey then informed the uninformed:

Unless you have ever been a prosecutor handling a homicide case, I don’t think you could even imagine how difficult these types of investigations can be.

She boldly asserted:

The United States Supreme Court has clearly defined a prosecutor’s role as a ‘minister of justice’ and further that our mission is to seek the truth.

Corey bathed herself and her associates in honor, pure hearts and righteousness:

I stand here at this time, confident that we are able to render a decision in this case.  There is no doubt we have a desire for justice in this case.  But I want to stress we also took an oath to protect the due process rights of any person whom we charge with a crime.  Our oath will be upheld for our victim, Trayvon Martin and for the man responsible for his death, George Zimmerman.

After several paragraphs of repeatedly assuring everyone that she and her team will actually obey Florida law and observe legal ethics in prosecuting the case, Corey delivers a particularly odd closing paragraph:

We thank all of those who have sent positive energy and prayers our way.  We ask you to continue to pray for our team as well as Tracy and Sybrina and the rest of Trayvon’s family.  We thank Mr. Crump and Mr. Parks for their daily assistance in communicating with our victim’s family.  We also ask everyone to refrain from any pre-judging this case before due diligence and due process takes its course.

Analysis:  Every prosecutor I’ve ever know, if they had occasion to read this statement, would certainly be sitting, slack-jawed, shaking their heads in amazement, not only at the lack of prosecutorial decorum, but at the political, Hollywood script, touchy-feely quality of the announcement of charging a man with second degree murder.

As I noted in my first article on this case, this is not, in fact, a difficult, time consuming case.  All of those directly involved were identified within minutes of the officers arriving on the scene.  All of the actual witnesses—and they were few in number–were apparently quickly identified and interviewed.  There was no need for lengthy, expensive, exacting examination of forensic evidence taking many months merely to obtain results and more time to properly interpret it.  This is the kind of case that could easily be resolved with a charging decision within a few weeks, even less.  That Corey had the case less than three weeks is more than sufficient proof of my assertion, yet she repeatedly mouths the fiction that this is a terribly difficult, demanding case.  Politically, yes.  Professionally and practically, no.

Corey spends several paragraphs cloaking herself in prosecutorial majesty and ethical uprightness, yet moments later blows that fairy dust entirely away.  Corey says that she will strictly uphold the due process rights of any person, including those of:

“…the man responsible for his death, George Zimmerman.”

One of the reasons we continue to perform the plays of William Shakespeare is because he knew human nature so well, and so brilliantly unmasked our failings and hubris.  Corey reminds me of nothing so much as Marc Antony in Julius Caesar (Act 3, scene II) during his funeral oration over Caesar’s body.  Convincing the crowd that the conspirators were vile traitors deserving of death while appearing to be praising their honor, he says:

Will you be patient? will you stay awhile?

I have o’ershot myself to tell you of it:

I fear I wrong the honourable men

Whose daggers have stabb’d Caesar; I do fear it.

Instead we have Angela Corey who nobly promises to uphold the law and the due process rights of the accused, even:

the man responsible for his death [whose daggers have stabbed Trayvon Martin]. George Zimmerman.

Her closing paragraph is mind-boggling. Regarding the issue of “those who have sent positive energy and prayers our way,” Ms. Corey, in the “positive energy” department, sounds like a new-age flake or a common huckster selling pyramid power hats on late night TV.  Regarding prayer, it is never wise for prosecutors to mention such things, despite how fervent and genuine their faith behind closed doors.  They must never say or do anything that would lead anyone to believe that they will be in any way partisan in the performance of their duties.  Speaking about prayer, frankly, does just that.

Corey has also apparently failed to learn from history.  At the Constitutional Convention in Philadelphia in 1787, a number of the delegates, including Benjamin Franklin, wanted to open each session with prayer to call down God’s help on their deliberations.  However, wiser heads prevailed, noting that if the public got the idea the delegates thought they needed God’s help, that might not put their efforts and progress in the most positive light.  The motion was defeated.

Professional prosecutors know that they must be very careful indeed in dealing with the relatives of victims and the accused.  Victim’s relatives can monopolize enormous amounts of a prosecutor’s time, and can very easily begin to see themselves as an integral part of the team.  Unwary prosecutors can easily find themselves falling in the role of father confessor or counselor and stepping over boundaries they dare not approach.  Prosecutors must be careful indeed not to give them false hope, and must tell them, every step of the way, that a specific outcome is not assured and cannot be counted upon.  If Corey and her team are, as she suggests, speaking with Martin’s family every day, this bodes poorly for their professional ethics.

I do not suggest that prosecutors should ignore families, or stonewall them, but that they have a very specific set of rational and wise legal ethics to observe, and that common sense should prevent them from raising false hopes or getting too close to people they could very well end up disappointing.  Experienced prosecutors know that families can turn on them even if they secure a conviction but not the sentence a family thinks is appropriate.

Andrew McCarthy had this to say about Corey: 

If I were a cynic, I’d say that an ambitious special prosecutor — exploiting the rabble-rousing of the U.S. attorney general and the racial grievance industry — filed an exceedingly serious charge for which she lacks evidence, second degree murder, in order to bask in the mob’s adulation while pressuring Zimmerman to plead guilty to a lesser charge, manslaughter, on which the special prosecutor runs a high risk of losing if Zimmerman forces a trial. So I’m sure glad I’m not a cynic.

Well, I am a cynic and I agree with Dershowitz and McCarthy.  This has all the appearances of a politically motivated prosecution, and one that will be played for all it’s worth by race hustlers, including the President of the United States and Attorney General Eric Holder.  Lodging a charge you don’t have evidence to prove, potentially to try to force a plea to a lesser charge, is a fool’s game.  Not only is it unethical, it will tend to encourage a smart defense attorney to go to trial rather than fold and settle.  Or perhaps Corey is depending on public outcry and political pressure to sustain a charge that is not ethically or legally sustainable.

As I’ve already noted, the ultimate losers in this case will probably be race relations and justice.  Such was never necessary.

FINAL THOUGHTS:

As often happens in these cases, time and space have gotten away from me.  I’ll continue to address this case—probably every Wednesday—for the foreseeable future.  In upcoming updates, I’ll address these, and more issues:

* The role of the preliminary hearing and pre-trial motions in the process.

* What is a Voice Stress Analyzer and what role does it play?

* Maps and analysis of the area.

* Analysis of the relative merits of the cases of the prosecution and the defense.

* Issues bearing on a fair trial and change of venue.

* The doctrine of self-defense.

* How TV and the Movies have given Americans very bizarre ideas about physical confrontations and how that will figure in this case.

UPDATE: 04-18-12, 1655 CST: Regular reader Everlastingphelps made a good point about which I broadly hinted and implied in the article, so I’ll take a moment to make it explicit.  In legal documents where criminal law is involved, it is indeed customary–at least–and practically necessary to use the actual language of the statute(s) involved, particularly in affidavits where one has the burden to fulfill the elements of an offense.  As I did in the article, one would list each element verbatim, followed by the evidence that would tend to prove it to make things as clear and unambiguous as possible for the judge.  That such apparently experienced attorneys and investigators would fail to do this is indicative of: (1) incompetence; (2) political calculation; (3) gross negligence; (4) some other motive not yet apparent.  Note, please, that none of these–or all taken together–have anything to do with making a legitimate charge that can be proved in court.

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