Posted on 04/14/2012 6:54:38 PM PDT by 2ndDivisionVet
Now that the dust has settled from the decision in the Zimmerman/Martin case not to proceed by grand jury by the Florida Special Prosecutor Angela Corey, and the decision to file a single count of second degree murder, I want to address a couple of critical topics in the case. First is the fact that there are serious questions as to the sufficiency of the probable cause affidavit that currently constitutes not just the core, but pretty much the entire basis for the state’s case.That will be the subject of the instant post. Second, will be a discussion of the mechanics of Florida’s procedure for implementing its “Stand Your Ground” law and a discussion of other pending procedural aspects of the case, and that will be covered in a followup post.
A probable cause affidavit is exactly what it sounds like, a sworn affidavit delineating probable cause in a criminal case – whether it be to search a place, arrest a person or charge a crime. Whatever the particular purpose, the affidavit must delineate the factual basis to support the specific legal action sought to be pursued by the state. And the general principle common to all such affidavits, whether for search, arrest or charging, is that it must “stand on its own” based on “what is within its four corners”. In lay terms, that means there must not only be sufficient information to cover all requisite elements necessary for the action, all such support must be actually in the affidavit – not in some extraneous place or with some extraneous source.
The Zimmerman affidavit is, at least by my analysis, wholly deficient for its purpose intended, i.e. to support the criminal charge under Florida law of second degree murder against Zimmerman.
We will start with a look at what useful, and useable, information is actually contained in the affidavit. Here is a complete copy of the full three page affidavit filed by the State of Florida in the Zimmerman case. Other that captions, signatures and certifications, all pertinent information is contained in twelve text paragraphs on the first two pages. Let’s look at them:
Paragraphs 1-3: The first three paragraphs give the names of the two investigators that are serving as the affiants for the affidavit and gives their background experience that qualifies them to do so. The investigators, O’Steen and Gilbreath both appear to be very experienced and appropriate for the task. No problems here.
Paragraph 4: The fourth paragraph details the types of material, evidence and sources the affiants relies on. Pretty standard stuff, again no problems here. (Interesting that the state appears to have a lot of “sworn statements” – even from cops, which is kind of unusual at this stage. Cops rarely give sworn evidence if they don’t have to, and prosecutors rarely want to lock them in this early. There may have been an internal affairs type of investigation that explains this, we shall see).
Paragraph 5: The fifth paragraph is the first factually substantive material. It details that Martin was living in the gated community at the time of the event, was returning from the store (with the infamous Skittles) and was unarmed and not engaged in any criminal activity. Then, however, the affidavit blurts out a critical, but completely unexplained and unsupported claim, namely that Zimmerman was “profiling” Martin. It does NOT allege that any such “profiling” had a racial animus or was, in any sense, illegal or improper. This is important because, while it is a rhetorically charged term, profiling is completely legal, whether for police or average citizens, so long as it not based on an improper invidious animus like race, religion, sex, etc. So, with NO allegation of improper animus here, and there is not, the profiling alleged is completely and unequivocally legal. Further, there is absolutely no specific attribution as to where this allegation came from – did Zimmerman admit it, if not what was the basis for the conclusion by the affiants? We have NO idea whatsoever, it is just a raw conclusory statement of absolutely no value whatsoever in its naked state. In short, there is nothing in Paragraph 5 that does anything to actually provide probable cause for the crime charged.
Paragraph Six: Paragraph six is much like paragraph five, except it details the intro to Zimmerman, where paragraph five did so for Martin. Zimmerman also lived in the gated community. It relates Zimmerman was “driving his vehicle” (we have no idea from where or to here) and “assumed Martin was a criminal”. Well that sounds bad right? Well, not really. First off, again, there is absolutely NO way of knowing where this information came from – did it come from Zimmerman? Was it culled from the 911 tape? Did a psychic conjure it up? We don’t know. Remember, it is seminal affidavit law that all pertinent facts must be supported and attributed “within the four corners of the document”. There is also a statement the 911 dispatcher told Zimmerman an officer was “on the way”. Again, there is absolutely nothing in Paragraph 6 that does anything to actually provide probable cause for the crime charged.
Paragraph 7: Paragraph seven is yet more of the same. It describes that Zimmerman believed there had been unsolved break-ins in the neighborhood, and “f*cking punks” and “***holes” “always get away”. Credit where due, we finally have a specific attribution point for the statements by the affiants, it is specifically stated to be from the recorded 911 call. See, the state and affiants are capable of proper attribution when they want to. Small victory. The problem is, there is still NO improper or illegal activity described. None. So far, Zimmerman is judgmental and concerned about his neighborhood, but there is not one scintilla of illegal conduct.
Paragraph 8: The eighth paragraph starts out with a description of a call Martin was on supposedly at the time he was being observed and followed by Zimmerman. But, again, there is not squat for specificity or particularity, the linchpins of a proper affidavit. We are not old who the person on the phone with Martin is, what the exact time of the call, and length of call, was, and we are not told how that information is known. Was that person interviewed by cops? Did she give a sworn statement? Did these investigators talk to her themselves, or was it some other officer and, if so, who? Hearsay, and even double or triple hearsay is acceptable in an affidavit, but the path and facts establishing it must be delineated. Here it is not. Then paragraph 8 goes off the edge, veering into some of the most unattributed and nakedly conclusory statements imaginable. It alleges Martin tried to run home, Zimmerman got out of vehicle and pursued, that Zimmerman thought Martin might commit an immediate crime before cops could arrive and that the 911 dispatcher told Zimmerman to wait for the cops but Zimmerman disregarded the advice. Other than maybe being able to assume the dispatcher advice is on the tape, we have no idea who, what, when, where or how the affiants know their wholly conclusory statements. It is simply unsupported tripe. Oh, and there is STILL no evidence of any criminal activity whatsoever. None.
Paragraph 9: Paragraph nine starts the actual meat of the subject confrontation. Let’s look at it sentence by sentence. “Zimmerman confronted Martin and a struggle ensued.” Okay, how do the affiants know this, did it come from Zimmerman’s statement? Some other unidentified witness? Was there surveillance video? we have no idea. Just another completely unsupported and unattributed statement lobbed out. Even if it were to be taken at face value, it at best relates that Zimmerman confronted Martin, it DOES NOT indicate who started the “struggle”. It is an absolutely critical fact, and there is no indication whatsoever given. If Zimmerman is to be charged with acting with a “depraved mind” it is hard to see how that could be if Martin started the actual physical, as opposed to verbal, “struggle”. But we do not know who did so, because the affiants did not include that. It is pretty clear there is no eyewitness or other direct evidence on this fact, because the next sentence reads “During this time period witnesses heard numerous call for help and some of these were recorded in 911 calls to police.” This is not only not attributed to specific witnesses (whether named or otherwise separately identified), nor is there any indication of how the affiants know it, it is completely harmless information. There is NO way to discern WHO was crying for help or whether both individuals were. The last sentence reads “Trayvon Martin’s mother has reviewed the 911 calls and identified the voice calling for help as Trayvon Martin’s voice.” Which 911 calls? just the one that Zimmerman made? Or was there others? Did the cops eliminate Zimmerman’s voice as making any pleas for help through voice print analysis? That is one of the first things that should have been done; seems telling there is no such evidence. Surely the cops recorded Zimmerman. Irrespective, even assuming Martin’s mother is correct in her identification, that shows NOTHING as to who initiated the physical portion of the “struggle” or who was doing what to whom in it. In short, somewhat shockingly, there is STILL not one iota of criminal activity, of any kind, on the part of George Zimmerman stated in this affidavit.
Paragraph 10: “Zimmerman shot Martin in the chest.” Zimmerman fully admitted it, and admitted it was his gun and turned it over. Well, that at least establishes a homicide has occurred, as a homicide is defined as the killing of one human by another human. There is, however, STILL nothing establishing how or why this homicide was criminal. Seriously there is nothing in the affidavit to establish criminality, much less a “depraved mind” on the part of Zimmerman.
Paragraphs 11-12: The final two paragraphs of the core affidavit add nothing in the way of criminality. Paragraph eleven establishes Martin died of a gunshot wound and paragraph twelve relates that the cops have other evidence and want a charge of Second Degree Murder. Nothing in these last two paragraphs bolsters criminality whatsoever.
And that, folks, is it. It is completely lacking in requisite and necessary attribution for the extremely few and, really, innocuous facts it does present, and the rest comprises nothing but unsupported and wholly conclusory statements meant to infer criminal activity, but which do not even do a competent job of that.
In short, it is sh*t. To be honest, this affidavit, within its “four corners” arguably does not even meet the necessary burden of probable cause for Manslaughter under Florida section 782.07, much less the “depraved mind” necessary under Florida’s Second Degree Murder charge under section 782.04(2) as charged in the information. George Zimmerman may have committed a crime, but it is not demonstrated in this affidavit, and certainly is not as to the crime charged, Second Degree Murder. Charles Blow can praise this thing until the cows come home in the august pages of the New York Times, but it is still a pile of junk.
But the above discussion is all about what is in the affidavit, let’s talk about what is not in the affidavit as well. The affidavit goes out of its way to spin innocuous and perfectly legal activity into some nebulous vignette of implied criminality, yet self servingly there is not a single fleeting reference to Zimmerman’s claim of having acted in self defense. To be sure, in charging a case, a prosecutor is going to frame the facts to support her charge. But that does not mean she can blithely ignore patently exculpatory facts known to her and germane to the interests of justice. Angela Corey’s affidavit is thusly not just deficient, but dishonest in a very slimy, even if not unethical way. It is patently offensive in that regard.
The case is also patently overcharged. As stated above, I think it is more than arguable that the probable cause affidavit does not even support manslaughter, but it is not remotely close to supporting second degree murder. This is an embarrassment not only for Angela Corey, but the magistrate who signed off on this bunk. It makes the criminal justice system look horrible.
None of this is to say I think George Zimmerman is innocent of any crime for the incident that led to Trayvon Martin’s death, nor is it to say that the state may not possess sufficient evidence to convict Zimmerman of some crime at a trial. In fact, I am highly disturbed by Zimmerman’s behavior and Martin’s death. All I am saying is, is that while there may be probable cause to charge Zimmerman, it has in no way, shape or form demonstrated by the State of Florida’s official legal statement that is supposed to be the foundation for charging Zimmerman. Zimmerman should not be charged, nor sitting in a county detention, based on this document; yet there he is.
There are other developments in the procedural case, involving the trial judge, upcoming bail determination hearing and assertion of the official Stand Your Ground affirmative defense. I will come back in the next day or two to address those items.
The prosecutor isn't stupid. The prosecutor presents a one sided case to the court to get an indictment. Not a very high threshold. All levels of Gov't violate Constitutional rights when it suits their agenda. The whole judicial system is corrupt because of politicians. Gov't courts have become a RICO enterprise.
I don’t know that much about how the law will handle this. But if this analysis is sound on what needs to be in the affadavit, then it certainly is deficient.
As I understand it, she also made a mistake about the exact wording of what Zimmerman said on the tape, according to something I read here a day or two ago.
Seems to me that this gives quite a bit for a good defense attorney to work with.
Outstanding write up. Thanks for your insight. I agree with your assessment and would think an honest judge with integrity would throw this case out.
Question for lawyers out there...was zimmerman taken in handcuffs to the station on the night of the shooting? If so was he “arrested” at that time?
Here’s my own theory of the case.
The prosecution team doesn’t have any evidence of a crime by Zimmerman.
One reason this document was such a piece of garbage may be that all of the competent lawyers in the state attorney’s office are finding themselves “too busy” on other matters to review the charging documents in the Zimmerman case because they can see this case is a dog and a career-ruiner.
I’ll be shocked if we see Angela Corey personally prosecuting this case in court.
By the time this gets to a trial portion we’ll see the state attorney pushing a summer clerk out in front of the cameras while the rest of the prosecution team hides behind the bushes.
I’d bet the only evidence they’ve got is the girlfriend on the cellphone.
They’re going to have to “massage” her testimony in order to say she “heard” Zimmerman physically attack Martin thereby initiating the “struggle” in order to contradict Zimmerman’s version that Martin physically attacked him first.
Here’s how it will play out. Nothing will happen until after the election. Zimmerman doesn’t want it to, because he doesn’t want Obama and Holder and race hustlers out there poisoning the public mind against him. And no one with any sense in the state attorney’s office wants it to, because this is a career-ruiner of a case with no evidence.
After the election there will be a lengthy preliminary trial at which all of the evidence will be presented, including cross-examined witness testimony and all of the physical evidence.
The state’s lack of any evidence to support its side and numerous pieces of evidence to support Zimmerman’s side will convince the judge by a preponderance of the evidence that Zimmerman was justified by self-defense.
The drawn-out public nature of it will convince the public, similar to the Duke lacrosse case and the OJ case, that Zimmerman was justified but the vast majority of the black population will never believe that.
Can Zimmerman survive in jail until after the election? One option the authorities have is to look the other way when Zimmerman is in the company of other prisoners. If another prisoner takes care of Zimmerman, the race baiters will be delighted and the politicians will be off the hook. I’m not sure it is really in Zimmerman’s best interest to delay the trial.
I expect he’ll be bonded out at some point, but not immediately. Right now jail is the safest place for him as long as he’s segregated.
Before they bond him out they need to find a place safe for him to stay but where his legal team can have reasonable access to him.
IANAL, but the answers are yes and no.
Question for lawyers out there...was zimmerman taken in handcuffs to the station on the night of the shooting? If so was he “arrested” at that time?
IANAL, but the answers are yes and no.
If he was taken to the station in handcuffs than he
WAS arrested.....they can call it whatever they like
but if you are hauled into the police department in
handcuffs you have been arrested. Just because the
system likes to pervert English and call it “detained”
or “protective custody” means squat. If you are placed
in handcuffs by LEO and cannot come and go as you
wish when you wish you have been arrested. We need
to fight back against this BS of using empty words as
justification for abusing citizens rights.
“Nothing will happen until after the election. Zimmerman doesn’t want it to, because he doesn’t want Obama and Holder and race hustlers out there poisoning the public mind against him.”
Except if...
Zimmerman decides to take one for the team. Though he supposedly be a registered Dem, perhaps he’s irked enough, and wants to see all those in the Trayvon camp take a beating, including O.
There’s no way this trial benefits racist Obama.
The first phase of the process will be a trial just before the judge on the self-defense.
Zimmerman’s counsel will want to ensure that he has as fair a trial as possible and will not want to put the judge in the position of having to make his ruling in the middle of an intensely-charged political atmosphere.
Correct. If your wife handcuffs you to the bedpost then she has "arrested" you.
All Zimmerman has to do is to prove he doesn't have a depraved mind and wasn't thinking any politically-incorrect thoughts on that evening. He is in the position of having to prove his innocence.
Having a trial may gain him some additional months of life--if he is acquitted someone will kill him to collect the bounty, and if he is convicted he'll be killed by another prisoner.
Well, you never know. But I suspect he would be killed in prison pretty quick if he gets convicted of this crime. I bet he knows that.
I'm not a lawyer, but according to Florida statutes taking someone away from the scene in custody constitutes an arrest. There are officer's statements and videotape showing that's what happened.
The Florida law is called "Stop and Frisk" and it is meant to be compliant with the US Supreme Court's "Terry Stop" ruling.
You’re right but the police can handcuff someone at the scene briefly, frisk them, and ask certain questions. IIRC, Zimmerman was arrested and questioned for five hours that night before they let him go. His legal status of being arrested, and whether the police advised him that he was arrested could affect the admissibility of anything he said.
But Martin looked like he could have been Obama's son!
RAAAACIST!
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