As I’ve repeatedly written, absent the confluence of an ethically challenged prosecutor, racialist politics, media investment in a politically correct—and fanciful–narrative and remarkable and serial disregard for Florida law by the criminal justice system, the Trayvon Martin case would be nothing more than one of many unremarkable shootings justified by self-defense around the nation each year. The case would never have gained garish national prominence, only to essentially and inevitably drop below the national radar when it no longer provides immediate benefits for those using it for their purposes.
The system initially worked. The police investigated, the local prosecutor reviewed their work, determined that George Zimmerman acted in self-defense under Florida law, and did not charge him. There the case should have ended.
With the presidential race to be decided next week and with bigger issues to cover—or as in the case of Benghazi, to ignore—media and public interest in the case has temporarily lagged. My last post on the case, Update 15.2, was on August 9. It has been my practice to post only when there is sufficient new information to justify my reader’s time, and mine, thus this update.
An Apparently Confusing Strategy:
An August 13, 2012 AP story, via Fox News, seems to have considerably muddied the strategy ground:
The attorney for the man who shot and killed unarmed Florida teenager Trayvon Martin said Monday he’ll seek to get the case dismissed using a traditional self-defense argument and not the state’s “stand your ground” statute.
Mark O’Mara, who is defending George Zimmerman against a second-degree murder charge in the fatal February shooting, said the traditional self-defense approach is appropriate because the facts suggest his client couldn’t retreat from a beating Martin was giving him.
Zimmerman’s attorneys had said last week that they would use Florida’s controversial ‘stand your ground’ law, which allows people to use deadly force — rather than retreat — if they believe their lives are in danger.
‘The facts don’t seem to support a `stand your ground’ defense,’ O’Mara said…
University of Miami law professor Tamara Lave explained:
…this change by O’Mara may be a signal that he thinks his case for self-defense is solid even without the special provisions afforded by ‘stand your ground.’
‘Stand your ground’ makes it easier to prevail under self-defense theory than the law that existed beforehand,’ Lave said. ‘I think what he’s saying is his case is so strong that he doesn’t need `stand your ground.
In the meantime, Zimmerman’s defense fund is fast depleting. His attorney Mark O’Mara said only about $60,000 remain against some $20,000 in outstanding bills. He suggested it might soon be necessary to petition the state for defense expenses.
Is O’Mara choosing a strategy path that seems odd on its face, or is the media confused instead? The simple answer is that there is often a difference between what an attorney says pre-trial and what they do at trial. In this particular case, O’Mara certainly has a tactical interest in misleading the prosecution. However, in reality, there is little real difference between a traditional self-defense claim and a “stand your ground” claim. Here are the involved Florida statutes:
776.012 Use of force in defense of person:
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.
776.013 Stand Your Ground:
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
776.032 Immunity from criminal prosecution and civil action for justifiable use of force:
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
A successful self-defense argument under 776.012(1) invokes immunity from criminal prosecution and civil actions under 776.032, and so would a successful argument under 776.013 (3). It’s hard to see what, if any, advantage arguing 776.012 over 776.013 would have. The only real difference seems to be the language relating to being in a place one has a right to be, and having no duty to retreat (invoked when deadly force in self-defense is justified).
In this case, Zimmerman clearly had no ability to retreat, thus eliminating any argument the prosecution might have on that account. In other words, they can’t reasonably argue he should have retreated when he was knocked to the ground, his nose broken, and his head was being pounded into a sidewalk by Martin who was astride him, pinning him to the ground. And if deadly force was justified, he had no duty to retreat under either statute. On the other hand, the narrative has always suggested that the moment Zimmerman left his vehicle his actions from that moment were somehow illegitimate, perhaps even evidence of criminal intent. Perhaps Mr. O’Mara has information suggesting the prosecution plans to pursue that avenue.
In either case a successful argument invoking either statute ends the case, frees Zimmerman, and prevents civil actions.
Zimmerman Gets A New Judge:
Florida Rule of Judicial Administration 2.330 requires a trial judge to grant a motion to disqualify without determining the accuracy of the allegation in the motion, so long as the motion is ‘legally sufficient.’… ‘A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.’ … Although many of the allegations in Zimmerman’s motion, standing alone, do not meet the legal sufficiency test, and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency. Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.
This ruling by a three-judge panel, handed down August 29, 2012, granted a new judge for the Zimmerman case. This text is the majority of the opinion and all of the relevant text. There is no explanation beyond what I’ve provided here. One of the three judges did dissent, but only to say he believed the motion did not meet the “legally sufficient” burden. The Florida Attorney General’s office announced that the decision would not be appealed.
This is the only reasonable decision the courts could have made in this case. To do otherwise would have given the appearance of a stacked deck against Zimmerman–in this case, a doubly stacked deck–and arguably opened the case to a successful appeal if Zimmerman were convicted. Two of the three judges obviously decided to play it safe, a decision also quite within the law.
The New York Post reported on October 4 that Zimmerman intends to sue NBC News over its editing of his 911 tape to make him appear to be racist. The Post wrote:
NBC launched an internal probe after producers misleadingly edited the 911 call placed by Zimmerman just before he shot the unarmed Florida teenager. The edit made it appear that Zimmerman had immediately told police that Martin was black, when the full tape reveals the neighborhood watch captain only did so when responding to a question posed by a dispatcher. Combined sections from two different parts of the tape gave the false impression that Zimmerman had said: ‘This guy looks like he’s up to no good or on drugs or something. He’s got his hand in his waistband. And he’s a black male.’
NBC News brass reportedly interviewed more than half a dozen staffers during its internal investigation, and at least three employees were let go. They determined that a ‘seasoned’ producer was to blame for the clip and news executives did not know the 911 call had been misleadingly edited until reports about it surfaced days later.
An unidentified NBC executive previously told Reuters the ‘Today’ show’s editorial control policies missed the selective editing of the call. It is not known if any other ‘Today’ execs or anchors will be named in the suit.
This is an interesting development. On one hand, NBC’s rapid throwing of several lower-level employees under the bus may help to make a successful suit difficult. On the other, public confidence in the Lamestream media is at an all time low. About 57% of the public, according to Gallup, say they have little or no trust in the legacy media to accurately and honestly report the news. In addition, NBC has a long and damning history of falsifying its reporting. One of the most interesting and disgusting examples was its November, 1993 rigging of gas tanks of GM pickups with incendiary charges to support its allegation of exploding gas tanks in collisions, yet another ugly stunt that blew up in NBC’s face, and could blow up once more.
Upcoming and Current Hearings:
Judge Debra Nelson, the new jurist in the case, set a murder trial date for Zimmerman of June 10. In addition, the next hearing date in Shellie Zimmerman’s perjury trial case was set for December 12. There is currently no trial date set for that case. It appears there may be good reason for future delays:
Nearly two weeks ago, O’Mara formally asked the judge to delay the case. This week, co-counsel Don West filed paperwork, complaining that the special prosecutor in the case has failed to turn over all the evidence that’s required and had been uncooperative.
Remaining issues for hearings in the near future include whether to allow O’Mara to subpoena Martin’s school records, whether the prosecutors should get Zimmerman’s medical records, and similar issues.
And in one of the more incredible acts of hypocrisy in a time of incredible acts of public hypocrisy…well, let the Miami Herald tell the story:
Assistant State Attorney Bernie de la Rionda filed papers Thursday in Seminole County Circuit Court asking a judge to muzzle defense attorney Mark O’Mara, whom the prosecutor accuses of taking to the Internet to try his case in the media.
‘Unless defense counsel stops talking to the media about the case, in person or by use of defendant’s website, it will [be] more difficult to find jurors who have not been influenced by the media accounts of the case,’ de la Rionda said. ‘…An impartial jury could never be seated.’
Mr. O’Mara has also been active:
In the past few days, O’Mara posted motions asking for a monthly review of discovery, arguing that de la Rionda has yet to turn over key evidence, and submitted inaudible recordings and incomplete materials.
Prosecutor De la Rionda also wants the public cut out of the process:
Prosecutors objected when O’Mara publicized a list of subpoenas he planned to issue for Trayvon Martin’s school, Facebook and Twitter records. De la Rionda now wants future subpoenas to be issued in secret, something both defense and media lawyers say is not allowed under the law.
‘The state has the ability to toss as wide a net as it wishes into waters chopped up by storms created by racial innuendo and political pressure,’ O’Mara shot back after being accused of going on a ‘fishing expedition.’ ‘It cannot drown within that net a criminal defendant’s constitutional rights to prepare an appropriate trial and to defend himself against that tide.
Unsurprisingly, Martin’s family has continued to try to establish some relevance:
We think the attorneys for Facebook are essentially saying the same thing we have been saying all along: Trayvon’s Facebook and social media are completely irrelevant,’ said Benjamin Crump, an attorney for Trayvon’s family. ‘All of these issues are distractions that take the focus off George Zimmerman…
Trayvon’s parents are expected in court Friday [10-19-12] to urge prosecutors to push for release of Zimmerman’s medical records.
CBS reports that in a hearing on October 30, Judge Nelson postponed any decision on the gag order and won’t issue a written ruling until at least Monday, 11-05-12. Judge Nelson also set a date for a “Stand Your Ground” hearing of 45 days prior to the June 10 murder trial date, however, that date should be considered flexible. Nelson also gave the prosecution redacted copies of Zimmerman’s medical records.
Hypocrisy? Mr. De la Rionda is now concerned for the sanctity of the justice process and for Mr. Zimmerman’s right to a fair trial? Defense attorneys surely can and do make outrageous statements to the press and public, but considering the overwhelmingly biased nature of the trial in the court of public opinion conducted not only by the prosecution and by the attorneys for the Martin family, Mr. O’Mara is comparatively pure as the driven snow. Consider just a small part of Special Prosecutor Corey’s statement at a news conference early in this 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.
“Those sweet parents”? A visit to Update 2 will provide more in-depth and in- context commentary on that issue.
It would also be worth your time to visit Update 9.4 wherein I discuss Ms. Corey’s bizarre and unhinged attack on Harvard Law professor Alan Dershowitz, who had the temerity to question her legal ethics in pursuing the Zimmerman case. A sample from that article:
State Attorney Angela Corey, the prosecutor in the George Zimmerman case, recently called the Dean of Harvard Law School to complain about my criticism of some of her actions. She was transferred to the Office of Communications and proceeded to engage in a 40-minute rant, during which she threatened to sue Harvard Law School, to try to get me disciplined by the Bar Association and to file charges against me for libel and slander.
She said that because I work for Harvard and am identified as a professor she had the right to sue Harvard.
When the communications official explained to her that I have a right to express my opinion as “a matter of academic freedom,” and that Harvard has no control over what I say, she did not seem to understand.
These are, of course, only a few representative examples of the cynical manipulation of the media and others by the prosecution in this case.
As always, it’s best not to delve too deeply into issues over which one has no control and about which one has, at best, incomplete information. I don’t know what Mr. O’Mara’s pre-trial strategy might be, and can only make informed suggestions about possibilities. Why is O’Mara thinking of not invoking the “Stand Your Ground” statute? I’ve no idea, but as I noted earlier, the practical effect and result would seem to make little difference. We’ll have to wait and see.
I am unsurprised that the prosecution is apparently slow-rolling discovery in this case. Competent, confident, ethical prosecutors have no trouble promptly turning over all relevant and required evidence in their cases. They know that the materials they turn over will serve only to remind the defense of the hopelessness of their cause.
During my police days, I delighted in personally carrying feet-high stacks of reports and evidence directly to defense lawyers, and was happy to discuss things with them. Any prosecutor who would make the discovery process difficult is quite simply, suspect. Such actions do not speak of confidence, a strong case, or honorable personal or legal ethics.
If the self-defense hearing occurs in mid to late April as scheduled, the entire matter could easily end at that point. Knowing what we now know about the case, considering the testimony of the prosecution’s lead investigators, there is no evidence to effectively rebut Zimmerman’s account. That being the status quo, under Florida law there seems no other option but to dismiss all charges and to immunize Zimmerman from civil liability. As I’ve noted before, the political pressure on any judge to force a murder trial will be enormous. Expect public threats of riots and other civil unrest and outlandish media and political theater.
In the meantime, the pre-trial legal jousting will continue, and when matters build to the point that a new article is worthwhile, I’ll add to the SMM Martin Case archive.
The website set up by O’Mara for information on the defense case is available here.
It would also be worthwhile for readers to visit The Conservative Tree House, a site that has done some fine work on this case. I refer particularly to an article from September 16 of this year titled “These People Never Met Each Other—Therin Lies The Misunderstanding of Viewership.”
The article provides clear and informed insight into Trayvon Martin, his friends, associates, and lifestyle, his parents and their attorneys and entourage. It’s a concise view into the reality of Trayvon Martin quite apart from the photos and narrative depicting him as an innocent, candy-eating cherubic child. In other words, it appears to tell the truth, a truth the prosecution, media and Martin’s parents would rather you not know.
And for those interested in the complete case file to date, The Stately McDaniel Manor Trayvon Martin Case Archive begins here.
As always, thanks for taking the time to read, and your comments are always welcome.