Why Alan Dershowitz Is Completely Wrong About the Zimmerman Case

Prof. Alan Dershowitz has gotten a lot of media attention lately for his claims that Special Prosecutor Angela Corey ought to be criminally prosecuted for her actions so far in the prosecution of George Zimmerman. Specifically, Dershowitz believes that the Affidavit of Probable Cause that was filed in support of the State’s Motion for Pretrial Detention on April 12, 2012, was “a crime.” In the Fox News interview where he made the comments, Dershowitz went so far as to suggest that Special Prosecutor Angela Corey ought to be hiring a lawyer to defend herself from potential criminal charges.

But Dershowitz’s claims are, to put it simply, completely wrong. His overblown accusations of criminal conduct on behalf of the prosecutors are not supported by the law, and there is absolutely no basis under which anyone could be charged with wrongdoing due to the specific acts that Dershowitz complains of. Dershowitz does not even attempt to identify any specific statutes or rules which may have been violated by the prosecutors. Instead, rather than providing any actual explanations, his accusations of criminal conduct are based on nothing more than a few empty declarations to the effect that “this is the justice system” and “the truth, the whole truth, and nothing but the truth.”

Which sounds nice and everything, but making broad statements about principles is not the same as actually providing support for a specific claim. It is more along the lines of a cheap rhetorical trick than a legal argument.

Dershowitz’s Fox News interview was devoid of any intellectual content; unsurprising, perhaps, given the context — this was a primetime news network interview, not a law review article — but  many commentators are parroting the claims he made as if they were asserted by Dershowitz-the-legal-scholar, rather than Dershowitz-the-conservative-news-show-pundit. I am reasonably confident that Dershowitz would never put in an academic article many of those same claims that he was willing to say on national TV.  Although to be fair, even in the interview, Dershowitz did try to carefully qualify some of his more unsupported assertions — he had to have known that what he was claiming, left unqualified, was bordering on the ridiculous. But unfortunately, the careful nuance Dershowitz did include has been uniformly ignored, while his aggressive and unsupportable soundbites have been repeated a hundred times over.

So, what did Dershowitz get wrong? To start with, Dershowitz seems to be speaking out of a feigned ignorance for criminal law in general, as well as a complete ignorance for the specific Rules of Criminal Procedure enacted by the state of Florida. The prosecution’s handling of the initial pretrial detention hearing, along with the Affidavit of Probable Cause that Dershowitz calls “a crime,” was completely and utterly routine; the State was doing the same thing it does every day, for all of the defendants it charges with crimes, in all of the cases it handles.

The particular affidavit that Dershowitz ascribes so much profound significance to is in fact of little procedural significance and absolutely no substantive significance, and the prosecution is not required to do any of the things Dershowitz suggests in his interview. To clarify, an Affidavit of Probable Cause, submitted in conjunction with a pretrial probable cause determination under Rule  3.133 of the Florida Rules of Criminal Procedure: (1) is not a formal charge; (2) is not subject to normal evidentiary rules or standards; and (3) is not used to disclose the State’s case against the accused, and as a routine matter the State attempts to provide as little of the State’s evidence as possible in such affidavits, providing only what is necessary to demonstrate probable cause.

Simply put, “[a] preliminary hearing is for the purpose of determining if probable cause exists to hold one accused of a crime for trial. Such a hearing is not a critical stage in the proceedings.” Anderson v. State, 241 So. 2d 390, 392-93 (Fla. 1970). At these initial hearings, “the strict rules of evidence are not enforced … and no formal charges are existing or filed against the defendant. The whole proceedings partake of the nature of an inquiry and, outside of being conducted by a magistrate (perhaps in a court house), bears little or no resemblance to a trial.” Davis v. State, 65 So. 2d 307, 308 (Fla. 1953).

Contrary to Dershowitz’s unsupported claims, it is expected, normal, and proper for everything but the bare bones case for probable cause to be left out of a probable cause affidavit, whether it be in support of a warrant or a pretrial preliminary hearing. See Perry v. State, 842 So. 2d 301, 303 (Fla. Dist. Ct. App. 2003) (“Florida Rule of Criminal Procedure 3.133(a)(3) states that … the court should apply the same standard as is required for issuing an arrest warrant.”). The Probable Cause Affidavit filed against Zimmerman is in no manner unique or somehow lacking, as compared to the probable cause affidavits filed in every other criminal manner. In any matter where more than a modicum of investigation has been done, such affidavits essentially never include the State’s full case against the accused. So if Dershowitz was right about the State’s requirements in filing such an affidavit, it is not just Angela Corey that ought to be looking for an attorney; every prosecutor in the U.S. ought to be doing the same as well.

But of course that is not how it works. True, if the prosecution had put any fabrications in the Affidavit of Probable Cause, there would be a very real problem. But Dershowitz is not actually claiming that occurred — although he alludes to the existence of such fabrications or misstatements, i.e., announcing “you don’t indict based on false information,” his actual claims of prosecutorial wrongdoing focus on omissions from the affidavit only.

But the State is not, under any possible interpretation of the law, required to include all potentially exculpatory evidence at the initial pretrial probable cause hearing. The Florida Rules of Criminal Procedure are specifically geared towards a system where such pretrial detention hearings are brief, cursory, and exist only to establish probable cause prior to the court setting bail for an accused. These hearings are not intended to be anything more strenuous, and if the State was required to produce every scrap of evidence in a case within 24 hours of making an arrest — which, in a case like Zimmerman’s, is the amount of time provided after an arrest before the pretrial hearing must occur — the whole system would quickly break down. For most homicide cases where the accused is apprehended at the scene of the crime, by the time the probable cause hearing occurs the investigation is less than 24 hours old, and the investigators have only the bare bones of a case thrown together, if that.

So while the existence of misstatements or fabrications in a pretrial affidavit would definitely be a problem, the failure to give “the whole truth” in such an affidavit is a routine and unobjectionable matter:

 “[M]isstatements are fundamentally a different problem than omissions. Some omissions may be ‘intentional’ but also reasonable in the sense that they exclude material police in good faith believed to be marginal, extraneous, or cumulative. Such an exclusion is a valid and necessary part of the warrant process. Moreover, some omitted information is simply overlooked in the exigencies of the moment without intent to deceive or recklessness with respect to the truth. The State and the defense reasonably may disagree as to the import and effect of the large amount of information that necessarily will be omitted in the warrant process, since police routinely collect far more information than goes into the affidavit.” Johnson v. State, 660 So.2d 648 (Fl. 1995).

Omissions are only a potential issue where the state has withheld information that can absolutely defeat probable cause; evidence that is inconclusive, even if arguably supportive of claims that the accused may raise at trial, is not required to be included. It is not a 4th Amendment violation, or any other kind of violation, to leave out exculpatory but immaterial evidence from a probable cause affidavit. Exculpatory evidence is only considered material where the State can be presumed to have omitted such information because it knew that, were that evidence brought to light, probable cause would be destroyed. As Florida case law has held, “[t]he omitted facts are only material if there is a substantial possibility that had the magistrate been aware of the omission he would not have found sufficient probable cause for issuance of a warrant.” State v. Van Pieterson, 550 So.2d 1162 (Fla. 1st DCA 1989). See also Johnson, 660 So.2d 648 (finding that omissions in a probable cause affidavit can only amount to a constitutional violation where “[(1)] the omitted material, if added to the affidavit, would have defeated probable cause, and (2) … the omission resulted from intentional or reckless police conduct that amounts to deception.”).

So the next question is, were the omissions from the Affidavit of Probable Cause that Dershowitz objected to “material”?

Hardly.

Dershowitz’s first argument for why the affidavit was “a crime” is that it does not include the cellphone captured photo of Zimmerman’s head that was taken in the minutes following the shooting. Dershowitz states that “if [Prosecutor Corey] in fact knew about ABS News’ pictures of the bloody head of Zimmerman and failed to include that in the affidavit, this affidavit is not the truth, the whole truth, and nothing but the truth.” But the omission of this photo is about as ridiculously far from a material omission as it gets, for the following two reasons:

1. The prosecution does not appear to have seen the photo until eight days after the affidavit was submitted to the court. The Affidavit of Probable Cause was submitted to the court on April 12th, and was executed the day before on April 11th. The ABC News photograph of Zimmerman’s head was not released until the day of Zimmerman’s bond hearing, on April 20th. The photograph was taken on a cellphone by a friend or neighbor of Zimmerman’s, and there is nothing suggesting that the photo was released to investigators before it was given to ABC News.

2. Even if the prosecution did have the ABC News photo, there is absolutely no requirement that the photo be included in the Affidavit of Probable Cause. The photo Dershowitz harps on will likely be important at later stages of proceedings, but it is basically irrelevant as far as probable cause goes. The ABC News video shows that Zimmerman had blood on the back of his head after he shot Trayvon Martin. As the first police officer to respond to the scene had clearly noted in his report that he observed blood on the back of Zimmerman’s head, this is not evidence of previously undisclosed facts. It is further evidence in support of previously asserted facts. Moreover, there is nothing inherently shocking or probative about the fact that someone who was part of a hand-to-hand struggle, for over a minute, would be bleeding from a wound.

Zimmerman could easily have more extensive injuries than what is shown in the ABC News photo, so the photograph is not dispositive evidence that such injuries do not exist. However, the photo itself does not show the existence of life threatening injuries, let alone anything that could destroy probable cause. It just shows that Zimmerman was injured in a fight. Zimmerman being injured in a fight is not in any way inconsistent either with the State’s theory of the case or with the charges that have been brought against him, and therefore, even had the prosecution actually had the photo in their possession on April 12th, there was absolutely no purpose or reason for including it in the affidavit.

Not a single exhibit was attached to the Affidavit of Probable Cause. Nevertheless, Dershowitz has apparently decided it is “a crime” that this particular photo did not get included — even though there was no inculpatory documentation included either. Unsurprisingly, Dershowitz offers absolutely no legal authority to support his claim of criminal wrongdoing in this instance, because no such authority exists.

Dershowitz’s second argument for why the affidavit is a crime is that it fails to  “describ[e] the fact there is evidence that during the struggle, Martin may have been on top, Zimmerman on bottom.” This too is a baseless assertion, because such evidence — even if it were somehow a confirmed fact rather than yet another version of already conflicting witness accounts — would also not defeat probable cause.

But this omitted “fact” is not a fact at all. True, hearsay evidence is permitted at a pretrial detention hearing (so long as it is not the exclusive evidence), so theoretically evidence that Zimmerman was pinned by Trayvon could be admissible at this stage. However, the evidence that supports that theory comes from two sources — from Zimmerman himself and from the confused and contradictory reports of the six 911 callers. Zimmerman’s own testimony is obviously insufficient to defeat probable cause, or else we’d never be able to lock up any defendant. And the 911 callers’ testimony cannot possibly be said to defeat probable cause either, as the omission of a witness’s testimony that is contradicted by other witness’s testimony is not a material omission. That is, the fact that one out of six 911 callers saw Trayvon on top of Zimmerman does not eliminate a finding of probable cause, because it is only one possible testimony out of six available testimonies, the comparative veracity of which cannot be determined at this time.

Again: it is ridiculous to claim that it is criminal misconduct for a pretrial probable cause affidavit not to include to the specific details of every available witness’s statement about the incident.  Of those six calls, some can be interpreted to support Zimmerman, some to inculpate him, and others to show only that the callers were completely confused. Instead of reciting the specifics of each witness’s testimony, the affidavit of probable cause summarizes them all into an accurate but unspecific summary: “witnesses heard arguing and then a struggle.” The fact the specific testimony of each one was not included does not make the omission “material” in any respect, as the pro-Zimmerman witnesses are balanced out by the ones that support a finding of his guilt.

So, in conclusion, while I have tried to explain in this post why Dershowitz’s allegations of criminal misconduct are legally incorrect, I probably did not need to spend half so long in doing so — because, after all, Dershowitz has not made any attempt to actually defend his claims on legal grounds. Which is fine, because Dershowitz was speaking on Fox News as a commentator, not a legal expert — he was giving a statement of his beliefs about the equities of the situation, not his analysis of the law. The problem is that a lot of people appear to have taken Dershowitz’s comments as a pronouncement on Florida criminal procedure — when in fact he was not addressing anything of the sort.

Update, 6/8/12: A few days ago, Dershowitz wrote an article stating that Angela Corey called the Harvard Law School and spoke to the Office of Communications, where she “proceeded to engage in a 40-minute rant, during which she threatened to sue Harvard Law School, to try to get [Dershowitz] disciplined by the Bar Association and to file charges against [him] for libel and slander.”

Making such a call was both unprofessional and ill-advised on Corey’s part, no matter what discussion occurred, but I am somewhat skeptical of Dershowitz’s account of the incident. Not only was the call related to him by a third-party, leaving room for confusion over what she actually said, Dershowitz’s article lets his own petulant streak shine through, littering his claims with snide jabs such as “[s]he persisted in her nonstop whining” and “[s]he should go back to law school.”

But even though Corey was wrong in making the call, it does not change the fact that Dershowitz’s own credibility and judgment ought to be under scrutiny for his decision to double down on his false accusations against Corey. Dershowitz steadfastly refuses to provide any supporting evidence for his legal claims. In contrast, the only Florida criminal attorney I’ve seen that has spoken on the matter has stated that Corey’s actions are fully permitted under Florida law. It is, unfortunately, not from a totally unbiased source, but it is still the opinion of an actual practitioner, which is more than Dershowitz has provided:

Richard Kuritz, a former prosecutor who worked with Corey but now works as a defense lawyer, supported her position. Kuritz said Corey had no obligation to include exculpatory evidence in the affidavit.

Kuritz said some of the public that once praised her for arresting Zimmerman has now turned on her as evidence that may support the defense, as there is in most cases, is being made public.

“The only reason Dershowitz has an argument to make is because she’s doing everything ethically she’s supposed to do: She’s turning over the evidence she’s supposed to,” Kuritz said.

Dershowitz’s accusations about Corey “misleading” the judge are even less believable in such a high profile case as this one, as information regarding what evidence investigators did or did not find is all over the media. The judge was not oblivious to the facts that existed outside of the probable cause affidavit — indeed, the only reason Dershowitz knows about the facts that he alleges were “perjuriously omitted” is because they have been made publicly known. The judge was hardly unaware of them, although as they were irrelevant to the probable cause hearing, such extraneous information would not play much of a role in the judge’s decision making process.

Dershowitz has still failed to cite to even a single court decision, Florida rule of criminal procedure, or rule of professional conduct that would support his claims of prosecutorial misconduct. Instead, Dershowitz continues to engage in overblown grandstanding (“If Angela Corey doesn’t like the way freedom of expression operates in the United States, there are plenty of countries where truthful criticism of prosecutors and other government officials result in disbarment, defamation suits and even criminal charges.”) and false equivalencies (“The prisons, both in Florida and throughout the United States, are filled with felons who submitted sworn statements that contained misleading half truths.”). His attempt to equate Corey’s conduct with Zimmerman’s is particularly thin:

Ironically, Corey has now succeeded in putting Zimmerman back in prison for a comparably misleading omission in his testimony. His failure to disclose money received from a PayPal account requesting donations for his legal defense made his testimony misleadingly incomplete.

In her motion to revoke his bail, Corey argued that Zimmerman “intentionally deceived the court” by making “false representations.” The same can be said about prosecutor Corey. She too misled and deceived the court by submitting an affidavit that relied on a review of photographs and other reports that showed injuries to Zimmerman, without disclosing the existence of these highly relevant injuries.

Conspiring to make false claims to a judge for your own material benefit has absolutely nothing in common with failing to include the entirety of available evidence in a probable cause affidavit. Zimmerman did not give “misleadingly incomplete” testimony. Instead, he conspired with his wife to make false representations to the court, regarding the only material questions that are at issue at a bond hearing, which is the accused’s ability to pay and his risk of flight.

In contrast, the probable cause affidavit does not make any claim that would contradict the fact that Zimmerman had injuries when he was arrested. It also plainly notes that

[t]he facts mentioned in this affidavit are not a complete recitation of all the pertinent facts and evidence in the case but only are presented for a determination of Probable Cause for Second Degree Murder.

The probable cause affidavit did not speak of Zimmerman’s injuries for the obvious reason that it was a two-page summary of a case in which a simple review of the available data would easily requires hundreds of pages. There are thousands of things omitted in the probable cause affidavit — so why is Dershowitz focusing solely on the fact Zimmerman’s injuries were not mentioned? The probable cause affidavit provides that “a struggle ensued” and that witnesses heard “what sounded like a struggle.” As such, evidence that Zimmerman had injuries consistent with having been a participant in an unarmed struggle is not material evidence, and is fully consistent with the prosecution’s affidavit. If Zimmerman started the altercation with Trayvon, as alleged in the prosecution’s case, Zimmerman’s injuries are entirely irrelevant — if you start a fight and then get your nose broken, you are not entitled to shoot the other person and then raise the justification of self-defense. So even had Zimmerman’s injuries been briefed in full, the determination of probable cause could not have been affected.

I would say that, before Dershowitz makes any further false accusations of criminal conduct, he ought to check into what the law actually provides for regarding what is required to be disclosed in a probable cause affidavit. Except I am sure Dershowitz already knows exactly what the law requires in this area — but is choosing to indulge in attention-seeking rhetorical nonsense instead of providing his actual legal analysis of the situation.

-Susan

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101 thoughts on “Why Alan Dershowitz Is Completely Wrong About the Zimmerman Case

  1. I have read several legal opinions about the affidavit and would like to hear your comments about this one which parallels others I have read from “Florida” lawyers.

    http://www.southfloridacriminallawyersblog.com/2012/04/probable-cause-affidavit-in-george-zimmerman-case-woefully-inadequate.html

    Here is an opinion about why this may not go to trial from the same source that might also interest you.

    http://www.southfloridacriminallawyersblog.com/2012/04/why-trayvon-martins-case-may-not-go-to-a-jury.html

    • And yet, Zimmerman has chosen to waive his right to the SYG hearing…. Interesting since so many feel he has a strong case. Why pass up the opportunity? I will tell you why. Because despite all the info that is out there, when you put it all together, Zimmerman appears very guilty and he knows it. Otherwise SYG hearing would be a slam dunk. Bottom line, they know this is going to trial. They would rather not have the hearing and go to trial, than to LOSE the hearing and now face a jury that knows he did NOT qualify for immunity. That my friend is a fact Jack!

  2. ” “[M]isstatements are fundamentally a different problem than omissions. ”

    When things differ, they differ FROM one another.

    “Than” is used when comparing differing quantities of the same quality.

    An hour is longer THAN a minute.

    A ton of feathers is neither lighter nor heavier THAN a ton of lead.

    As for the cell phone photo showing that Zimmerman was injured in a struggle, it appears to show that he was injured, but shows nothing of how he got that way.

    One should keep in mind the story of the 2 judges driving in the countryside.

    unitron

    • I realize this is an outdated response, but I just happened upon it and wanted to think about the grammar of “different problem than” and comment on it.

      I understand the point onlyiamunitron has made, but s/he is mistaken about the sentence structure. Rather than explain why (go to the Oxford dictionary site or any good grammar book for that explanation), let me just frame a grammatically comparable sentence:
      Cats are smarter animals than dogs.
      Clear?

      • “I realize this is an outdated response, but I just happened upon it and wanted to think about the grammar of “different problem than” and comment on it. I understand the point onlyiamunitron has made, but s/he is mistaken about the sentence structure. Rather than explain why (go to the Oxford dictionary site or any good grammar book for that explanation), let me just frame a grammatically comparable sentence: Cats are smarter animals than dogs. Clear?”

        Would you say cats differ than dogs?

        Or would you say cats differ from dogs?

        “Smarter than” is correct because you are comparing differing quantities of the same quality (smartness), but when things differ, they differ from one another, so the inequality in “smartness” is one of ways in which cats differ from, or are different from, dogs.

        But only one of the ways in which they are different.

        unitron

        (an x y chromosome kind of guy)

  3. I have looked at other affidavits of probable cause in Florida murder and manslaughter cases and they all are much more detailed than the affidavit here. They say when interviews were taken, what was said using quotes, etc.

    Here it doesn’t even say that Zimmerman claimed he was acting in self-defense. It blatantly misrepresents what the dispatcher told GZ and doesn’t mention that his response was “OK” and that it appears he stopped following him. The claim that GZ followed TM “around the complex” is a lie.

    -MM

    • How is it a lie? Because you know all the facts in this case and they have been conclusively proven? Or because it suggests a situation you personally don’t believe occurred?

      The available evidence can be most plausibly read to suggest that Zimmerman got out of his car and for ~30 seconds following Trayvon on foot. Beyond that, nothing conclusive can be proven, but describing that alone as following Martin “around the complex” is not a false statement. It’s possible the statement implies further action than what it proven so far — but stating technically true things in ways that provide the strongest support for your argument is kind of what the life of a lawyer is all about.

      And remember: self-defense is an affirmative defense. An affirmative defense means that, even though someone committed all the elements of a crime, for X reason they are not guilty. Affirmative defenses are entirely irrelevant to the prosecution’s case in laying out each necessary element of the charge.

      Also, affidavits can vary in the amount of detail given. The fact some contain more detail than other doesn’t make the ones with less “a crime.” All similar such affidavits and filings I’ve seen have been roughly similar in the level of detail provided as this one, for what it’s worth, but the precise level of detail used really doesn’t have anything to do with the claims that the affidavit was “a crime.”

    • The claim he followed him is not a lie. Zimmerman admitted to it. Watch the walk through. He was on the other side of RVC and points over his shoulder “back there” as he recalls the dispatcher asked if he was following. At the time he said “yes” in response to NEN. In the walk through he was further from his truck “to get an address” he never provides. Hello! He tells the police to meet him by his truck and then instructs them to call him, leaving anyone with half a brain cell to conclude/infer he planned to be somewhere other than his truck. Hence, he followed the adolescent around in the dark. Funny how race and social status lead us to look at the same evidence differently. If your white child was murdered thus, you would be outraged that anyone went to such lengths to acquit the admitted perpetrator who is very clearly guilty and worthy of prosecution.

  4. To Mark Martinson:
    I hope you won’t be on this jury or any other jury, for that matter, if you can jump to a Grand Canyon conclusion such as that.
    Just because Zimmerman said “OK” doesn’t mean a thing. He DID continue to follow Trayvon Martin and the evidence and timeline says so, if you would bother to pay attention to such details of fact.
    Research is immensely helpful before forming such a blatantly false opinion, such as yours. Do the math, research the timeline, study the crime scene and where Trayvon’s body ended up. It’s simple to conclude that Zimmerman followed Trayvon to where he killed him. Him saying “OK” to the dispatcher means squat, especially when he disobeyed the dispatchers orders.

    • Other than not get all the way back to his vehicle and wait inside it for the police to arrive, we don’t know what Zimmerman did after being admonished not to follow Martin.
      We can hear him get out of the vehicle and proceed quickly to “somewhere”, but we don’t know where that is, so even if Zimmerman were proceeding (apparently at a snail’s pace) back to his vehicle after the admonishment (or, as I have termed it elsewhere, The Official Discouragement), we don’t know from where he started that return journey or what path he took.

      It’s amazing how many people, without sufficient evidence, have convinced themselves that they know what happened that night and what both parties were thinking, and how many other people have done the same thing and reached an opposite conclusion as to who was at fault.

      Not only is there, so far, insufficient evidence, but people in both camps are assuming far too many facts not in evidence.

      unitron

      • I think by now, after spending time on FLLB, you know very well there is sufficient evidence to conclude he continued to follow Trayvon. You and your ilk would like the world to believe that while the video camera is rolling it shows one set of facts and when it is turned off something altogether different occurs. In other words, we know Zim followed. We know Tray ran away. When the “camera is shut off” is my analogy for the more obscure events of the evening, and based primarily (almost entirely) of of Zimmerman’s testimony, we are to believe Zimmerman turned tail and all of a sudden Trayvon turned around to attack in a murderous rage. If he was such a killer, he would not have run in the first place. Forget also that Trayvon was on the phone at the moment they met. Assume Trayvon was in fact the attacker and Dee Dee tells the truth about being on the phone, but then lies about the conversation. Phone records prove Trayvon was on the phone at approx. the time the confrontation occurred. Simple question, why does Zimmerman OMIT this. Oh, yes of course, poor memory, ADHD, and all that nonsense. (Note to those with bad memories and ADHD, the laws do not apply to you, you are free to kill with impunity and you are not expected to remember material facts in “stressful” situations). The fact is, we have no reason to doubt Trayvon was on the phone, at the very least (even if you do not believe DeeDee – even though there really is no reason to think she is lying, contrary to defense and his PR clubs emphatic assertions). And zimmerman leaving that key fact out cannot be explained by ADHD, stress or a bad memory.

        • Have you noticed that you’re replying to posts that are almost a year old?

          Have you been run off of all the currently active blogs?

          unitron

      • So Vicky, let me get this straight, your husband is having a heart attack and a 911 operator instruct/tells/advises/encourages you on what to do, but does not order you to, do you not then do it? Do you ignore it because it is not an order and they are not actually law enforcement and are not authorized to tell you what to do?

        Is that situation more serious or urgent than pursuing a suspicious person in the dark with a weapon, not knowing if they are armed? Is Zimmerman much more sensibke than you when he says OK, but you still insist No Way?

  5. There is certainly a lot of people who think what Zimmerman did was the correct thing to do, when it wasn’t. he made himseld Trayvons judge, jury and executioner when the kid had done nothing wrong! I don’t see how people can say this will not go to trial when this POS out right took the life of an innocent human being who was a minor. I am also apalled at the way people on blog sites are disrespecting this kid, even in death. I never knew just how IGNORANT AND INSENSITIVE SOME PEOPLE IN THIS COUNTRY CAN BE!

  6. Lynn,

    The dispatcher did not “order” GZ to stop following TM. He suggested it. In any event, a dispatcher doesn’t have the authority to order someone to do anything.

    And the evidence tends to show that he stopped.

    -MM

    • “And the evidence tends to show that he stopped.”

      I think that’s debatable, but it’s pretty much certain that the evidence shows he wasn’t in a hurry to be smart and get back in his vehicle to wait for the police to arrive.

      unitron

  7. As a young lawyer, I was dismayed to hear professor Dershowitz attack Angela Corey so viciously without evidence in law and/or in fact. But then a closer examination shows that professor Dershowitz is really getting very old and that his brain is shrinking fast (his skull has gotten considerably smaller) while his ego is getting bigger every day. Professor Dershowitz also seems to be ranting instead of offering any (well) reasoned thoughts and he lashes out with furry at fellow jurists on TV who happen contradict him (how dare you contradict the A&O?!). Professor Dershowitz is going through a painful process now and he will one day completely stop making any sense. Pls. give him a break. He used to be one of the best. Susan, thanks for taking the time you take to show the shallowness of professor Dershowitz. I juist ignored him with a sigh.

  8. Hey, thanks Susan for your legal opinion. I don’t have a TV; but I did read about Dershowitz’s views, which I found disturbing.

    My son is an attorney, and I am SO proud of him.

  9. Thank you again Susan very insightful…..I would just like to say to those who maintain Zimmerman returned to his vehicle …if it took him 30 secs to walk away….how come not 30 secs to walk back…. he spoke to the dispatcher for another 2 minutes….where is the backbground noise for the attack….and folks want to say the dispatcher had no authority….well then the same can be said of Zimmerman…questioning or trying to detain trayvon ….and isn’t it apparent Zimmerman was trying to stop trayvon from exiting…if you see he is running towards the back gate ….why not let him be…he may have actually been trying to leave as far az Zimmerman knew and no crime in that,………..those assholes always get away …..speaks volumes

    • He got out of his vehicle at 7:11:48 PM, the admonition from the person at the police department was finished and acknowledged 16 seconds later at 7:12:04 PM, the call itself ended at 7:13:39 PM and the struggle seems to have started somewhere after 7:15 PM, maybe as late as 7:15:30 PM, as the first call to 911 came at 7:16:11 and the shot at 7:16:56 PM

      Zimmerman must have had at least 3 minutes to return to his vehicle from the position he reached away from it in only 16 seconds.

      unitron

  10. Susan, I am new here and I find the combination of your articles and the comments the best source on this case on the web. I hope you will forgive me for expressing some disagreement with your current article.

    I gather that an “Affidavit of Probable Cause” is something that gives reasons for believing that there is enough of a probability that somebody committed a crime, in this case second degree murder, that they should be arrested and held for trial. Professor Dershowitz and others find that document deficient in this regard. I don’t know what that probability threshold is but I would think it is something more than “not absurd, based on the evidence, that the accused is guilty of the charges”. In particular, I think the affidavit should have made it clearer why the prosecution believes the shooting wasn’t self defense. When they are so selective in choosing their evidence as to give, for example, Trayvon’s mom’s identification of the distant screams, transmitted over a cellphone, you wonder about the prosecution’s objectivity. But of course this is the USA where we have the most extreme version of adversarial legal proceedings on the planet.

    That said, I have a suggestion for a future article that I hope you would consider. Suppose the fight had ended differently with either Zimmerman’s brains getting bashed out or having the gun pointed at his heart when it went off. With only that difference in the known facts, how would you rate Martin’s chances of mounting a successful defense? TIA.

    • A key point you may be overlooking in regards to the self-defense issue: self-defense is an affirmative defense under the law, which means it is entirely distinct from the prosecution’s case. With an affirmative defense, you are essentially admitting that the state has met every element of its claims against you — but you are not liable due to some additional exculpating or justifying reason. It is never the prosecutor’s job to defeat an affirmative defense until the accused has actually put on that defense.

      Even though it technically didn’t have to, the prosecution here did lay out reasons for why it believed there was no self-defense claim, i.e., it believed the evidence supports that it was Martin yelling for help. So, regardless of the specific evidentiary weight you may assign to those reasons, the prosecution has still articulated specific reasons for why it thinks there is no self-defense claim here. And probable cause is the lowest threshold of proof required under the law — it’s not that hard to get.

      And with the fact situation you speculated about, I think it’s pretty likely Martin would have been SOL. Although I suspect he would be looking at a manslaughter charge, not murder 2; without the initial 911 call or the claims of shouting for help that may have been false, you’re probably not going to get a murder 2 charge out of it.

  11. Thank you for that quick reply, Susan. It seems, from what you are saying, if you shoot somebody, you are liable to arrest on criminal charges, whether it was self defense or not. Do you think the state was wrong not to arrest Zimmerman, right after the shooting? Many people, apparently including Prof. Dershowitz, think that the shift from believing no crime was committed to believing Murder 2 was committed was not based on new evidence but only on political considerations. That doesn’t indicate a high public confidence in the integrity of the US judicial system. If you have any knowledge of what differences there would have been in the treatment of this case in other countries, or even states, I would be very interested.

    • I think the state was horribly wrong in not commencing with and carrying through on a thorough investigation of Trayvon’s death, regardless of the timing of Zimmerman’s arrest.

      From the available sources we have now, it appears the decision to cut Zimmerman free and suspend the investigation was made that night. Which is absurd. That’s the reason there has been such a political outcry over this — the police department didn’t even bother going through the motions.

      And it’s self-apparent that the decision to actually pay attention to this case was politically motivated. There is nothing wrong with that, in itself; having public agencies be accountable for their screw ups is a good feature to have in the system. I also think it’s likely that, had the system worked right the first time, and without the Sanford PA and the prosecutor’s office being forced to closely examine their actions here, Zimmerman would have faced only a manslaughter charge, not murder 2. (Note that this is not remotely the same as saying a murder 2 charge is unjustified or unsupportable.)

      Fifty years ago in the south, if someone perceived to be white killed someone perceived to be black, and then claimed self-defense for it, there would have likely been no investigation at all, and no outcry to follow it. So in many ways, the Zimmerman case is a sign that the criminal justice system has more integrity and accountability than it once did, despite the obvious flaws that remain.

      • “…it’s self-apparent that the decision to actually pay attention to this case was politically motivated.”

        What I want to know is how much political motivation, if any, was behind Wolfinger jumping in to shut things down so soon

        unitron

    • Susan, your STATEMENT is a complete lie! The reason that Zimmerman was NOT arrested that night was because that is EXACTLY what the law says the police MUST do. Have you ever bothered to read Florida law or are you just spouting more racist nonsense???

      2011 Florida statutes:

      776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—

      (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

      Or are you, like the news media, and Martin’s attorney just to busy or ignorant to understand the law??

      Your claim that the investigation was suspended is also a lie! The investigation continued with the blood work, the ballistics reports and the autopsy.

      Your statement that Alan Dershowitz is a CONSERVATIVE news commentator is also a lie.

      whale

  12. Susan, are there acknowledged standards for determining when to close the active part of a crime investigation? In the Zimmerman affair, they had 3 statements from the shooter including a reenactment done on the next day, as well as the call with the dispatcher, observations of EMTs, interviews with witnesses, autopsy, toxicology and powder analysis before the original decision to close the investigation was made. Was this through enough? It is impossible for me to say since I have no knowledge of standards for closing criminal investigations in Florida, the country and the world. They might have considered getting Zimmerman’s medical records or checking Trayvon’s recent phone calls but decided that the potential additional information would not defeat Zimmerman’s claim of self defense so wasn’t worth the bother. Every investigation reaches a point of diminishing returns.

    I hope you are not comparing the decision to not indict Zimmerman to what went on in the south before the civil rights era. What upsets many people about the indictment is the seeming insignificance of the evidence justifying it in the probable cause affidavit. What new facts changed the original decision? Yes, the standards should be lower than needed to convict, but they shouldn’t amount to nonsense. Wouldn’t you still have judges required to review wiretapping and other search orders for probable cause and not grant them if he doesn’t see a good reason? To many, it is bizarre to cite Ms. Fulton’s identification of Trayvon’s voice as probative evidence when Zimmerman’s neighbor and relatives have identified the latter as the one crying out and a state’s investigator has conceded in court that he has not seen usable scientific analysis from the efforts of the FBI and “experts” contacted by the Orlando Sentinel. Prof. Dershowitz has reminded us that the US in the only country in the world that elects judges and prosecutors. If people can be charged with crimes, not based on laws and evidence, but on perceived political advantage of indictments, public confidence in the legal system becomes eroded.

    • Rick J, I would think that when you engage Susan, you want have a serious and unbiased discussion. Going through your postings it is almost impossible to stand de foul smell emanating from the intellectual dishonesty intrinsic in your arguments. If someone kills someone (in this case a kid!) that person ought to go to court and prove his/her innocence (if he/she claims self-defense or insanity). This is a basic principle of law underlying the legal fabric of every human societies. Yet you find that Zimmermans human rights have been violated because he has been given the opportunity to prove his innocence after he took the life of a kid. Yes, the public pushed the authorities to do the right thing by indicting Mr. Zimmerman! The trial of Mr. Zimmerman will be public for all to see and judge for themselves whether or not there is enough evidence against Mr. Zimmerman. Mr. Zimmerman has a right to fair and public trial to clear his name. But somehow you and Mr. Zimmerman are scared of facing the evidence of murder you claim is not there. I happen to have watched the bond hearing and paid attention to the cross-examination of one of the investigators. One thing that emerged during that hearing is that (and I am well convinced that even you know that too) there is too much of this case we yet do not know about and a huge chunk of it could spell big trouble for Mr. Zimmerman. One could also notice O’Mara and his colleague were visibly stuned and all of them have stopped using the words “stand your ground law”, etc. (O’Mara have stated that he is not sure he will be mounting a ‘stand your ground defense’! Why so?). I am particularly disturbed that ‘you are upset because Zimmerman was indicted’ (even though he will be acquitted if the evidence of murder is not there as you suggest!) but NOT because a kid who was committing no crime whatsoever was chased down and shot dead! It is obvious that the integrity of our legal system is sooo dear to you.

  13. Intel, to show that I am willing to engage in a serious discussion with you, Susan and whomever else wants to join in, I will ignore your ad hominems and stick to the real issues. In the case of a homicide, should there always be an indictment or should a prosecutor have the discretion of deciding that either self defense or insanity was clearly in play and and indictment is not warranted? If you think that the law in Florida, and elsewhere should be changed in that regard, then come out and make the case for it. If there is an advantage to allow prosecutorial discretion, as is the current law, then maybe a prosecutor should be obligated to file a public report detailing the evidence and the decision not to indict. By the way, in most countries and a few states, the decision to indict is up to a judge who is in charge of the investigation. The prosecutor is only involved if an indictment is issued. And the judge, regardless of what he/she decides, issues a detailed report.

    My complaint was not there was an indictment but that, IMHO, the reasons for the indictment, given in the probable cause document didn’t show probable cause for it. I am not the only one with that opinion. A probable cause like, “because a kid who was committing no crime whatsoever was chased down and shot dead” requires more justification than just asserting it. The crime, according to Zimmerman, was that he was unjustifiably physically attacked so as to have a reasonable fear for his life. At a trial, the prosecution has the burden of showing beyond a reasonable doubt that Zimmerman did not have such a reasonable fear. I can see why a prosecutor might not even try to do that.

    • I was under the impression that what happened here was not prosecutorial discretion to begin with, but Florida law worded in such a way that since they couldn’t immediately cast any serious doubt on Zimmerman’s self-defense claim they had no choice but to cut him lose without charges.

      Which may have led to a less vigorous and thorough follow-up investigation.

      unitron

    • Ricky J,
      The (horrific) killing of a child (and Travon is a child!) or anyone else cum the conflicting statements of the admitted killer (regarding the reasons for the killing), amounts to a reasonable suspicion that in fact murder may have been committed and IS AS SUCH ENOUGH A PROBABLE CAUSE to arrest and indict. I would once again refer you to the cross-examination of one of the investigators during the bond-hearing. It was abundantly clear that Mr. Zimmerman made many statements which not only conflict with each other but also are not consistent with the laws of time and space (i.e. the time line of events during the killing). In situations like this, there MUST be an indictment. Only in clear cases of self-defense or insanity may the prosecutor chose not to indict. Such clear case is absent here considering de admitted killer made numerous conflicting statements on key points. Once again, re-visit the cross-examination of one of the investigators. That cross-examination is pregnant with a lot that I and you don’t know – a lot that could spell trouble for Mr. Zimmerman. All law worshipping people seek the truth. The truth can only- c.q. shall emerge in the process of ‘due process’ of which Mr. Zimmerman MUST be accorded. That truth will either send Mr. Zimmerman FREE or to the gallows. Either way, I only care about the truth.

  14. Unitron, are you saying that the eventual indictment was a result of further information coming in after the original decision not to charge him? If so, you would think that new evidence would be in the probable cause document. That document just had a few none supported accusations coming from Martin’s parents and their lawyers which could have been matched, at least equally, with stuff from the Zimmerman camp.

    • I don’t know if they have anything new or anything old that we never heard about, or if they do whether it’s enough to get any where with.

      I do not know what the reasoning is, I just have a cynical suspicion of what the reason is, which is not the same as saying he should never have been charged.

      I don’t think it was looked into thoroughly enough before the original decision not to charge, but because of the wording of the law down there, assuming that what I’ve seen reproduced online is accurate, they sort of didn’t have a choice since they couldn’t immediately seriously challenge or disprove the self-defense claim.

      I still suspect what they have in mind is pressuring him into copping to man 1 or man 2 and keeping this from ever getting near a jury so that the investigation never gets investigated and the role played by provisions of the SYG law never get too closely examined.

      They just want to get everybody off of their backs about this.

      unitron

  15. Intel, you are claiming that the reason for the indictment was that Zimmerman made conflicting statements to investigators. It is strange that those conflicts didn’t make it into the probable cause document. No examples were given at the bail hearing, except a hint that Zimmerman was exaggerating how badly his head was being smashed against the sidewalk. Should he have waited until Martin beat his brains out before getting his gun out and firing?

    This is what was originally said:
    http://articles.orlandosentinel.com/2012-03-17/news/os-trayvon-martin-shooting-911-call-20120316_1_deadly-shooting-shot-man-reports

    “Investigator Chris Serino of Sanford police said Friday the agency has worked closely with prosecutors, and have not arrested Zimmerman because prosecutors have consistently told them they do not have enough evidence to win a manslaughter conviction.

    That’s because Zimmerman says he was defending himself, something he’s allowed to do under Florida law.

    The best account of what happened came from Zimmerman, Serino said. Other witnesses who saw or heard parts of what happened corroborate his version of events, the investigator said”.

    So what changed as far as the evidence goes? I think you would be very disturbed if you were indicted and the prosecutors didn’t explain why.

    • # Ricky J.
      No Sir! If I kill someone and get indicted, I will perfectly understand (and this does not mean I would like) the indictment – because I know that there will be a truth-inquest within the ambient of ‘due process’. Within that system, I will explain how unfortunate it is that I had to kill someone and that there were no other available means to protect myself from imminent serious bodily harm and/or death. I will be more than happy to present my case to the people and ask them to judge my actions in accordance with the way they would have acted if they were faced with the same situation that led me to killing someone else. Even Mrs. Fulton (Trayvons mother) will vote to acquit Mr. Zimmerman if his story of self-defense is (a) consistent and (b) makes sense (in the light of known facts and evidence)!

      If O’Mara thinks that there is no- or not enough evidence to indict and/or try and/or even convict Mr. Zimmerman, he should (and would have) raise(d) that with the courts and get the indictment thrown out – promptly. But, O’Mara is not doing that. On the contrary, O’Mara has even waived the right to a speedy trial! How so? Do you actually suggest that the indictment is baseless, malicious and politically motivate and O’Mara is an imbecile for not doing anything about it?

      The rest of your argument is difficult to comment on because they are based on your passions for Mr. Zimmerman and unspecified statements Mr. Serino may or may not have made to the media. Whatever Mr. Serino may- or may not have said does not contain actual statements made by Mr. Zimmerman himself. Those statements are recorded. And what was recorded is hours long. The jury need to hear them all, scrutinize them and see if they withstand the test of the law, science, time and space and our general experiences as human beings.

      By the way Ricky J. What is “the best account of what happened according to Zimmerman”? Have you ever heard Zimmerman give any account of “what happened”? And can you demonstrate how “Other witnesses who saw or heard parts of what happened corroborate” “the best account of what happened according to Zimmerman”. Which witnesses are that and what did they actually say, to whom, where, etc. and how does what may- or may not have been said corroborate anything? Ricky J., you do come across as a smart guy, but you passions seem to be clouding your power of thought.

  16. It is helpful to understand that Zimmerman was not indicted. For crimes less than second degree murder, Florida allows the prosecutor to file an “Information” under statute 923.03 in which somebody “Personally appeared before me (official title of state attorney) who, being first duly sworn, says that the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true and which, if true, would constitute the offense therein charged”. See http://www.black-and-right.com/2012/04/10/florida-law-in-re-zimmerman/ for an explanation. The Affidavit of Probable Cause was this Information and was accepted as such at a hearing on April 12 by Judge Mark E. Herr. The people who did the swearing that the facts were true were the State Investigators O’Steen and Gilbreath. If you read the document, they mix facts and conjecture, sometimes in the same sentence. For example, “Zimmerman disregarded the police dispatcher and continued to follow Martin who was trying to return to his home”. They could swear that they believe in their hearts that all of that is true but they certainly can’t swear that they can prove it. If the article I linked is correct, I can well imagine Mr. O’Mara challenging the Information even before we get to the next scheduled hearing.

    • Ricky J., now you (seem to) allege that the investigators committed perjury, and that the affidavit of probable cause is fraudulent, and that the indictment contains some form of fatal technical fault! One might think this indeed is getting very desperate. By the way:
      – There is evidence that Trayvon was returning to his home at the time he was being pursued by Mr. Zimmerman: Trayvon went to the shop to get some snacks for himself and his girlfriend so that they can watch a TV-program together; after he left the store, Trayvon was walking to the direction of the home; while walking towards the said home, Trayvon was on the phone with the said girlfriend who testified that Trayvon was returning home (and I guess you cannot point to anything that indicates that Trayvon had other things in mind like go rob a nearby bank or house or rape someone, etc.!). Beside the testimony of the said girlfriend, logical inference/deduction (which both are perfect legitimate legal tools) allows for the conclusion that Trayvon was returning to his home (Trayvon left the said home to get some ice tea and skittles for himself and his girlfriend who was waiting for him in the said home. Trayvon was walking in the direction of the said home, etc.). The exercise of logical inference/deduction is not the same as “conjecture” if you know what that word means.

      Ricky J, those whose signed the affidavit did not (even remotely) commit any perjury and the affidavit is based on demonstrable facts. Furthermore, it contains more than enough to carry the weight of ‘probable cause’ in a second degree murder case. Honestly, it seems you are not here to have an open, unbiased discussions on the law, facts, science, etc. but to sell us your preconceived diehard opinions on the injustice you perceived done to a grown man who shot and killed an unarmed teenager and is at least making inconsistent statements about his reasons for the killing. It seems a waste of time continuing the conversation with you, because you are too emotionally attached to Mr. Zimmerman (maybe you are G. Zimmerman himself, his brother or even his father?!).

      Lastly I would like to beg you to pls. stop linking us to other websites (its very annoying). State your own legal views and argue them out.

      • The young lady on the phone with Trayvon Martin the last evening of his life may or may not have been his girlfriend or perhaps just a friend who is a girl, but she was not in Sanford, Florida that evening, but was back in Dade county somewhere, which is where she lives.

        Supposedly the son of the fiancee of Trayvon’s father was at his mother’s house, which is where Trayvon was also staying, but it is not known for certain if the Skittles were for him or for Trayvon himself.

        unitron

  17. Susan, as to the issue of whether or not the state has to address self defense issue when charging somebody, there is this I have gleaned from Bob Parks’ Black and Right Blog for which I have already given a link: Florida 776.032 has,

    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 used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

    776.012 is the SYG law which states: 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.

    In view of these laws, I just don’t see how to justify the absence of refuting them in the Affidavit.

    • Ricky J., Susan has already written an eccellent artikel on the subject you inquire of titled: “The Statutory Basis of the Murder Charge Against George Zimmerman and His Available Defenses Under Florida Law”. Maybe you want to read that article first.

    • Again Ricky J., if Mr. Zimmerman thinks he is immuned from prosecution , then O’Mara should (and would have) raise(d) that with the courts and get/gotten the indictment thrown out – promptly. But, O’Mara is not doing that. On the contrary, O’Mara has even waived the right to a speedy trial! How so? Do you actually suggest that the indictment is baseless, malicious and politically motivate and O’Mara is an imbecile for not doing anything about it? You refuse to answer that question?

      Susan has also answered the second part of your question with this reply to your earlier question. On May 6, 2012 at 12:51 pm Susan wrote you the following words:
      “A key point you may be overlooking in regards to the self-defense issue: self-defense is an affirmative defense under the law, which means it is entirely distinct from the prosecution’s case. With an affirmative defense, you are essentially admitting that the state has met every element of its claims against you — but you are not liable due to some additional exculpating or justifying reason. It is never the prosecutor’s job to defeat an affirmative defense until the accused has actually put on that defense. Even though it technically didn’t have to, the prosecution here did lay out reasons for why it believed there was no self-defense claim, i.e., it believed the evidence supports that it was Martin yelling for help. So, regardless of the specific evidentiary weight you may assign to those reasons, the prosecution has still articulated specific reasons for why it thinks there is no self-defense claim here. And probable cause is the lowest threshold of proof required under the law — it’s not that hard to get.”

      Indeed, it’s not that hard to get. But Sir, you have ears that won’t listen, eyes that refuses to see and a hart that is hardened as a rock.

  18. Intel,

    Don’t take this the wrong way, but your comments show you are not familiar with how our criminal justice system proceeds in cases like this. You said:

    “Again Ricky J., if Mr. Zimmerman thinks he is immuned from prosecution , then O’Mara should (and would have) raise(d) that with the courts and get/gotten the indictment thrown out – promptly. But, O’Mara is not doing that. On the contrary, O’Mara has even waived the right to a speedy trial! How so? Do you actually suggest that the indictment is baseless, malicious and politically motivate and O’Mara is an imbecile for not doing anything about it? You refuse to answer that question?”

    O’Mara is proceeding methodically and in a perfectly acceptable manner for his client, who professes his innocence. It is a waste of time to immediately challenge the indictment. The first step is to discover the State’s case against his client. So far, he has no discovery on what their case is. Simultaneously, he will have his own investigators do their work to get to the bottom of exactly what happened. Once those stages are complete, most likely, he will file a motion and ask for an evidentiary hearing to have the whole case thrown out (which will take a while to research). No good defense attorney would ever rush that ‘one time’ chance to end the case without having all his “ducks in a row.” Your presumption that O’Mara should have proceeded immediately to have “the indictment thrown out” is not the way it is done and is foolish.

    As for O’Mara waiving the right to a speed trial, that too is normal. The defense wants all possible time to develop its case and typically, in criminal cases, waives speedy trial limits — limits that you may not be aware are viewed as beneficial to the prosecution, not the defense. So again, O’Mara acted properly and in his client’s interest, particularly since his client is free on bond.

    Many times laymen, such as yourself, make presumptions about correct strategy and procedures that are not correct because the criminal process is complicated and has many not obvious twists and turns.

    • Intel,

      With respect to the rest of your post. In this case, proving the elements of the crime, 2nd degree murder, will have overlap with the self-defense issue. For example, evidence disproving Zimmerman acted in a ‘depraved’ manner could also, simultaneously, aid in establishing self-defense even if the elements may differ.

      At trial, O’Mara will not be admitting Zimmerman’s guilt in order to prove self-defense. All will be considered together at trial even though the elements for proving each issue are different. The jury will be instructed as to the elements needed for each issue.

      As for Susan’s comment: “Even though it technically didn’t have to, the prosecution here did lay out reasons for why it believed there was no self-defense claim, i.e., it believed the evidence supports that it was Martin yelling for help”

      She may have meant to use “e.g.”, not “i.e.”, where the former stands for ‘for example’ and the latter for ‘that is’. I only remember from the bond hearing that Gilbreath said the FBI analysis of the voice tapes was inconclusive. I don’t remember him saying the voice on the tapes was Trayvon’s, but I could be wrong. If you have a section of the transcript where he says that, you may want to post a link to that language and I will stand corrected.

      As for the comment

    • StanS. (alias Ricky J.?), obviously you did not understand the depth of the sarcasm immanent in my comment to which you object. I would try once again to help you comprehend:

      Mr. Ricky J., argued that there is no- or not enough evidence to arrest and/or indict and/or even convict Mr. Zimmerman. He further claimed that the arrest and indictment of Mr. Zimmerman is baseless and politically motivated. I argued that ‘if that much is true and at this point evident to Mr. Ricky J., one would assume that the same would also be evident to Mr. O’Mara – unless Ricky J is suggesting that Mr. O’Mara is an imbecile for not grasping that simple evident truth (which Mr. Ricky J. has already grasped). If on the other hand Mr. O’Mara is now NOT asking the court to throw out the indictment, the only possible conclusion that could be drawn from it is that – at least at this point – Mr. O’Mara is not aware of any evident evidence that would lead any average thinking person/attorney to believe that the arrest and indictment of Mr. Zimmerman is baseless and politically motivated (as Mr. Ricky J. affirmatively stated or at least suggested)’. The suggestion therefore that Mr. O’Mara is not/may not be doing his job well, is implicit in the arguments of Mr. Ricky J. This is the point I was making – and again, “it is not that hard to get”!

      I would once again reiterate the intellectual dishonesty intrinsic in your thought-process an modus operandi. In the present instance, you begin with: “don’t take this the wrong way …” and yet you proceed with numerous argumentum ad hominen. Furthermore, you refer to people whose legal background you know nothing of as what you call “laymen (like yourself)” who (according to you) ‘do not understand how the criminal justice system works’. Here you establish as “fact” things you “assume”. In your world ‘assumptions’ and ‘facts’ seem to be synonyms. That is quite impressive, wouldn’t you agree? Now, whether or not participants on this site are holders LLM degree and/or members of the BAR should not concern you. Men/women of character do not brag about anything and I will be the last person to do that here. The very fact that you feel the urge to use such terms as “laymen like yourself”, suggests that you may have a problem of complex (ego-problems, intellectual inferiority-complex, etc.). What do you say to that?

      Lastly, it seems you are both StanS. And Ricky J. I would not question why anyone would have the urge to assume double identity without first giving them the chance to explain themselves. Would you like to do that? I mean – explain yourself?

    • StanS.
      I agree with the following statements of yours: “In this case, proving the elements of the crime, 2nd degree murder, will have overlap with the self-defense issue. For example, evidence disproving Zimmerman acted in a ‘depraved’ manner could also, simultaneously, aid in establishing self-defense even if the elements may differ. At trial, O’Mara will not be admitting Zimmerman’s guilt in order to prove self-defense. All will be considered together at trial even though the elements for proving each issue are different. The jury will be instructed as to the elements needed for each issue.”

      However, the aforementioned statements of your suggest that you now do agree that the prosecution did indeed meet the standard required for a probable cause affidavit. This (if I am not mistaken) has been the proverbial bone of contention between us – including prof. Dershowitz.

      The prosecution is not obliged to defeat an affirmative defense claim in the probable cause affidavit (and there is no case-law to the contrary). In the present case, there is no question as to someone being killed by another. There is also no question with regard to the killer. The affidavit did mention that the killer, against the advice of the dispatcher, did pursue the victim. The affidavit did mention that the victim was not committing any crimes. The affidavit did mention that the killer called his victim f***a**** and “punk” before the killing (mental state), etc. The affidavit did state that the mother of the victim did identify the voice crying for help on the tape to be that of the victim (something – if true – rules out self-defense!). The statement of Gilbreath to the effect that the FBI analysis of the voice tapes was inconclusive, is not part of the affidavit and as such does not add or subtract anything from the substance and goal thereof.

      Whether or not the prosecution will be able to prove its case beyond reasonable doubt, is a different subject that must be determined at trial. At that trial, the said FBI analysis (among others) will definitely be very relevant in that the said analysis might say something about the scientific degree of acceptability that the voice on that tape is not that of Mr. Zimmerman but Trayvons’ or vice versa.

      At this point neither I or you have any material to make any reasonable statement as to the guilt or innocence of Mr. Zimmerman. But we both now agree that the probable cause affidavit is good enough. Let’s wait and see what the rest of the evidence show (and I hope the communist who control our courts don’t get those evidence sealed and hidden from the public – just joking).

      If you agree with the above, then you must be willing to concede. If not, you owe everyone on this site an explanation as to why not.

  19. Susan – Thank you for the excellent article and the Minute to Minute article as well on this case. I look forward to your take on this case as it proceeds to trial. I am curious about rumors I have read on various sites and wanted to see if you would give me your thoughts on it. Many have been stating that they hear clicking of metal sounds on the Zimmerman/911 tape that could possibly be Zimmerman (GZ) loading his weapon. Initially, I blew it off until I was watching a video of the exact weapon that GZ used and I saw the man in the video load the clip into the gun – so I compared the two sounds and they are strikingly similar. The sounds in question are right after the Dispatcher asks him if he is following Trayvon and he appears to have finally stopped running -in that general area. While I realize that it is mere speculation, is it possible that a forensic acoustic gun expert could make such a determination? I ask this because the prosecution has listed a forensic acoustic gun expert on their witness list. If this indeed is GZ loading his weapon, I his self-defense claims are out the window. I believe that GZ had his gun drawn when he went searching between the townhomes for Trayvon. In fact, I believe he had his flash light out and on as well – and that Trayvon was blinded by the flash light when first confronted by GZ. That when Trayvon saw the gun, is most likely when he took a swing at GZ and when DeeDee hears the beginning of the scuffle. The prosecution mentioned at the bond hearing that a witness saw two peoplle, one chasing the other. It does not make since that this testimony would be relevant unless he/she could say who was who or some other destinguishing feature – like the chaser had a flashlight. Anyway – back to the gun. Here is what I did:

    Open up the HausofGuns video below and stop it at the 5:23 mark which is right before he loads the clip into the gun. Open up the 911 tape below and stop it at 2:40 mark. Listen to the sound of the clip being loaded by HausofGuns and then listen to the sound at about the 2:42 mark.

    • Doesn’t make much sense. If Zimmerman was “locked and loaded” Martin would never have gotten off his attack and Zimmerman wouldn’t have had the injuries he received. You might want to look at these links posted by Inspector Gadget on the minute by minute forum.

      From the reports, it turns out that Martin had damaged knuckles (impossible if Zimmerman had his gun out since he would have shot first) and that Zimmerman was damaged consistent with multiple strikes by Martin.

      http://abcnews.go.com/story?id=16353532#.T7Lyv-iPlAo

      http://www.wftv.com/news/news/local/autopsy-results-show-trayvon-martin-had-injuries-h/nN6gs/

    • Doesn’t make much sense. If Zimmerman was “locked and loaded” Martin would never have gotten off his attack and Zimmerman wouldn’t have had the injuries he received. You might want to look at these links below that were just posted by Inspector Gadget on the minute by minute forum.

      From the reports, it turns out that Martin had damaged knuckles (impossible if Zimmerman had his gun out since he would have shot first) and that Zimmerman was damaged consistent with multiple strikes by Martin.

      http://abcnews.go.com/story?id=16353532#.T7Lyv-iPlAo

      http://www.wftv.com/news/news/local/autopsy-results-show-trayvon-martin-had-injuries-h/nN6gs/

    • Doesn’t make much sense.

      If Zimmerman was “locked and loaded,” Martin would never have gotten off his attack and Zimmerman wouldn’t have had the injuries he received. You might want to look at the new links below that were just posted by Inspector Gadget on the minute by minute forum.

      From the reports on the Martin autopsy discovery and Zimmerman’s injuries, it turns out that Martin had damaged knuckles (impossible if Zimmerman had his gun out since he would have shot first) and that Zimmerman was damaged consistent with multiple strikes by Martin.

      http://abcnews.go.com/story?id=16353532#.T7Lyv-iPlAo

      http://www.wftv.com/news/news/local/autopsy-results-show-trayvon-martin-had-injuries-h/nN6gs/

      • Starting with repeal of Stand Your Ground and Castle Doctrine laws. The next step will be to use the iivtneable rise in violent crime rates as an excuse to repeal Concealed Carry.I really wonder about the probability of this sequence. It helps that I live in a state where concealed carry (of any sort, but it happens to be shall issue with all other US localities’ licenses being recognized) is quite new, 2004, and where we have to assume we have a duty to retreat and our Castle Doctrine was judicially nullified (the which Missouri uses for upper level court seats is truly horrible). Nonetheless, at least in the culturally Southern SW part of the state we have a strong self-defense culture.I suspect it depends on whether the prosecutors use the absence of these two doctrines abusively, plus there’s a big difference between removing two rights most gun owners will never need and removing something that many gun owners use every day. The latter will be a lot harder, I’m sure.

    • PeterO.
      You are not addressing the question posed by Terri. I think Terri asked the following question:

      “Many have been stating that they hear clicking of metal sounds on the Zimmerman/911 tape that could possibly be Zimmerman (GZ) loading his weapon. Initially, I blew it off until I was watching a video of the exact weapon that GZ used and I saw the man in the video load the clip into the gun – so I compared the two sounds and they are strikingly similar. The sounds in question are right after the Dispatcher asks him if he is following Trayvon and he appears to have finally stopped running -in that general area. While I realize that it is mere speculation, is it possible that a forensic acoustic gun expert could make such a determination?”

      I think answering the above question posed by Terri will do justice to Terri.
      Your assertion: “From the reports, it turns out that Martin had damaged knuckles (impossible if Zimmerman had his gun out since he would have shot first) and that Zimmerman was damaged consistent with multiple strikes by Martin” does NOT in any way answer the question of FORENSICS posed by Terri.

      Lastly, pls., pls., pls. stop advertising different websites here (it’s annoying – among others). State your (legal, scientific, etc.) views and argue them out. We are here to exchange thoughts with each other. I am interested in what you think and why you think it – I mean: your (independent) original thoughts. I do not need you to sell the propaganda and/or agendas of others to me.

    • Intel,

      Don’t you think the FBI hasn’t already analyzed that tape from top to bottom? I understand that owners of the gun in question routinely keep a round chambered (i seem to remember someone mentioning that on Susan’s minute-by-minute forum).

      What I don’t think you realize is that the police and FBI are miles ahead of everyone on sites like this — they just don’t release that information. If “locking and loading” while talking to the dispatcher was their belief, you would have seen it presented already. Indeed, it doesn’t even make sense because Zimmerman had called the police because he wanted THEM to check the suspect out. Crump and the press have been trying to promote the bizarre theory Zimmerman was on some sort of ‘hunting expedition’, a story completely at odds with his actions, including calling the police.

      The links I post are not “ads” but reports of information that have some semblance of reliability. I would think that if you really want to under stand what happened, that results of the autopsy and Zimmerman’s medical condition would be top priority.

      Lastly, you didn’t read all of Terri’s post where it was speculated as to what occurred during the fight, which is part of what I addressed.

  20. Sorry – I didn’t realize that the actual videos would appear on your site – I was just trying to give you the links.

    • Terri
      I thought I was the only one. I have heard exactly what you are describing. Its right before he answers his last name you hear him chambering the gun.

  21. Maybe Dershowitz is a hired gun for the defense. Perhaps he will be one of the lawyers representing Zimmerman when it goes to trial. He hasn’t been in the news for a long time. That might bother him.

  22. I know this is an out dated post but what about the ETHICS involved here. Florida adopted the ABA rules with a few exceptions, and 3.3-77 says when filing an information-which is what the Probable cause Affidavit is- 3.3-6 and 3.3-9 should be adhered to. There was plenty of time for this to happen. 3.3-6(b) states exculpatory evidence should be included in the information. We know now that the SPD was in possession of Zimmermans” medical report from the following day. So why were they NOT included?

    • Stobber, you are misinterpreting these standards. (And for the convenience of other readers, what Stobber is referring to can be found here.)

      The affidavit of probable cause was two pages long. The relevant evidence in this case would (does) cover hundreds of pages. If the standards were to be construed in the manner that you are proposing — that “all” evidence is required to be included — it would be only a shade short of impossible for prosecutors to ever initiate a case without also violating standards of ethical conduct.

      But the rules don’t require any such nonsensical thing. Affidavits of probable cause are filed thousands of times a day, all over the U.S., and the overwhelming majority contain nothing that comes ever close to being as comprehensive as Corey’s critics would apparently require.

      In almost every case that is contentious enough to go to trial rather than pleading out, there is going to be evidence cutting both ways. But that’s what trial is for — not the initiation of a prosecution. It’s the defense’s job to raise its affirmative defenses and to hammer the prosecution’s evidence, to show it doesn’t go beyond a reasonable doubt, but that comes at a later stage of proceedings.

      Besides, despite all of the wailing and gnashing of teeth over Corey’s alleged “misconduct,” I’ve never once seen an attempt to explain why the fact that Zimmerman was injured is a material fact that could at all alter the probable cause determination. Zimmerman being injured and Zimmerman having committed an unlawful killing are entirely consistent possibilities.

      The prosecution’s theory of the case, as displayed in the probable cause affidavit, is that Zimmerman started a fight and then at some point during the struggle, drew a gun and shot Trayvon. Given this scenario, Zimmerman’s injuries are, very literally, irrelevant to the probable cause determination.

      Or do you actually believe the judge would have happily set Zimmerman free, if only the prosecutor had decided to throw a sentence into the affidavit mentioning the fact Zimmerman was injured? Of course the judge wouldn’t have, that’s absurd. This whole conversation borders on the ridiculous.

    • Ricky, I did a quick update earlier on the latest round between Corey and Dershowitz.

      And Stobber, “you’re just a Trayvon supporter” isn’t actually an argument against anything. Likewise, the practical constraints regarding probable cause affidavits isn’t an “excuse”, it’s a description of the reality of how prosecutors operate. The rules and standards regarding probable cause affidavits have been developed in light of both the purpose of these filings and the existing constraints surrounding their implementation.

  23. For those who were confused as I was, Susan’s 6/8/12 update is at the end of the main article of this page.

    I don’t know much about Probable Cause Affidavits in general, but this one doesn’t live up to the apparent intention of giving probable cause to arrest Zimmerman for second degree murder. For example, it cited Sybrina Fulton’s identification of the screams on a 911 call as being those of her son, while not mentioning that those same screams have been identified as coming from Zimmerman, by his friends and relatives. Also not mentioned is the fact that they had a report from the FBI Laboratory that the available samples are inadequate for making a voice identification. So why do they accept Fulton’s identification as evidence?

    At the bond hearing, one of the author’s of the affidavit was unable to explain why it used language like “Zimmerman confronted Martin” and he didn’t have evidence about who confronted whom. In fact, if the affidavit just said, “I want this guy arrested and I’ll tell you why later” it would have been just as convincing to me. That is why I think the justice system in other first world countries is better because there, indictments can only be issued by investigative judges (part of a civil service meritocracy) who direct the police investigation, listen to all the parties and only after he indicts does a prosecutor get involved. I find Assistant Prosecutor’s de la Rionda’s highly biased interviewing of witnesses outrageous and useless as far as truth determination. The police in most countries, including the US, I think, are supposed to be unbiased investigators. In Europe witness interviewing is supposed to be done only by them with the results handed both to the prosecution and defense.

    Dershowitz may exaggerate some things, but he did raise the disadvantages for the US of being the only country in the world that elects prosecutors and judges. That is the part we should take seriously.

    • No. That’s just not how it works. Everyone keeps trying to make the probable cause determination into something it just is not and never has been — apparently without having any actual clue what the process of bringing a criminal charge actually entails.

      At a proceeding seeking leave to bring criminal charges, the state’s only obligation is to set forth a truthful account of why there is reason to believe criminal charges should proceed against the accused, and not whether the accused is guilty. Full stop.

      Supreme Court precedent on proceedings before Grand Juries, which are similar in function and scope, is clear on this point:

      It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. See United States v. Calandra, 414 U.S., at 343, 94 S.Ct., at 617. That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor’s side. As Blackstone described the prevailing practice in 18th-century England, the grand jury was “only to hear evidence on behalf of the prosecution[,] for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined.” 4 W. Blackstone, Commentaries 300 (1769); see also 2 M. Hale, Pleas of the Crown 157 (1st Am. ed. 1847). So also in the United States. According to the description of an early American court, three years before the Fifth Amendment was ratified, it is the grand jury’s function not “to enquire … upon what foundation [the charge may be] denied,” or otherwise to try the suspect’s defenses, but only to examine “upon what foundation [the charge] is made” by the prosecutor. Respublica v. Shaffer, 1 U.S. (1 Dall.) 236, 1 L.Ed. 116 (O.T.Phila.1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented. See 2 Hale, supra, at 157; United States ex rel. McCann v. Thompson, 144 F.2d 604, 605-606 (CA2), cert. denied, 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630 (1944).

      Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his possession would be incompatible with this system. If a “balanced” assessment of the entire matter is the objective, surely the first thing to be done-rather than requiring the prosecutor to say what he knows in defense of the target of the investigation-is to entitle the target to tender his own defense. To require the former while denying (as we do) the latter would be quite absurd. It would also be quite pointless, since it would merely invite the target to circumnavigate the system by delivering his exculpatory evidence to the prosecutor, whereupon it would have to be passed on to the grand jury-unless the prosecutor is willing to take the chance that a court will not deem the evidence important enough to qualify for mandatory disclosure. See, e.g., United States v. Law Firm of Zimmerman & Schwartz, P.C., 738 F.Supp. 407, 411 (Colo.1990) (duty to disclose exculpatory evidence held satisfied when prosecution tendered to the grand jury defense-provided exhibits, testimony, and explanations of the governing law), aff’d sub nom. United States v. Brown, 943 F.2d 1246, 1257 (CA10 1991).

      United States v. Williams, 504 U.S. 36, 51-53, 112 S. Ct. 1735, 1744-45, 118 L. Ed. 2d 352 (1992).

  24. In order to avoid rehashing the same old comments over and over again, let’s try to move this debate back to specific legal reasons for why Corey did or did not break the law. For anyone under the belief that the prosecutor acted improperly in charging Zimmerman, please identify: (1) the specific evidence that you believe the State was required to include in the probable cause affidavit, and (2) precisely why that evidence, if included, would have defeated probable cause.

    Clearly, reasonable minds can differ on the question of whether the available evidence in this case tends to show that Zimmerman is guilty or evidence. Which means that none of the available data can be said to clearly exculpate him, or defeat probable cause. Which means that, had Corey ignored all procedure and precedent and simply tossed the entire case file into her Information, probable cause to bring charges against Zimmerman would likely still have been found.

  25. The obvious answer to your question, Susan, is that the document failed to explicitly address why the prosecutor believes Zimmerman’s claim of self defense is invalid, contradicting the opinion of the previous prosecutor. As I am sure you know, it also had inaccuracies like its description of Zimmerman’s call with the dispatcher. If I was a grand jury member and the entire case presented to me consisted of that document, I would have voted not to indict. Maybe the Florida legislature will get some sense and rule out this method (Slapping together a couple of pages of BS and shoving it in front of a judge to rubber stamp) of charging people with serious crimes. Dershowitz is no fan of Grand Juries either but maybe they do have some check on prosecutor indiscretions. Does the prosecution have an almost 100% win percentage with them? Best would be to go to the European system of Investigative Judges and preliminary hearings.

    I am amused by some of the legal writings you cite to justify the low barrier to indictment in the US. We really care what the practice was in 17th century Britain? The British abolished the Grand Jury in 1933 and now use preliminary hearings where both sides can be heard.

  26. In your article above, you state that “the prosecution did not appear to have seen the photo [of Zimmerman’s injuries] until eight days after the affidavit was submitted to the court.” You mentioned that the affidavit was drawn up on April 11 and then submitted to the court on April 12, but that the ABC news photograph of Zimmerman’s head “was not released [by ABC news] until the day of Zimmerman’s bond hearing, on April 20.” You also mentioned that the photograph “was taken on a cell phone by a friend or neighbor of Zimmerman, and there is nothing suggesting that the photo was released to investigators before it was given to ABC news.”

    I realize that you wrote the above article on April 29th, prior to the time that the State was ordered by the Court to release certain information to the public. Unfortunately, it appears that– like the rest of the general public – you may have fallen prey to this prosecutor’s lies by omission. The prosecution was ordered by the court on May 17 to release 183 pages of documents which relate to the prosecution of Zimmerman; if you review those documents (all of which were in the care, custody and control of Prosecutor Angela Corey well before the April 11th Affidavit was drawn up,} you will see that it was NOT one of Zimmerman neighbors or friends that took the cell phone pictures of his head injuries on the night of the shooting, but it was Officer Michael Wagner of the Sanford Police Department that took the pictures. Contained within the 183 pages of documentary evidence that the prosecution reluctantly released to the public – and only after being ORDERED to do so by the court – is a report dated March 24, at 6:08 PM, and written by Sanford police officer Michael Wagner. In his report Wagner states that,

    “as the scene came under control, I walked to Ofc. Smith’s car where Zimmerman was sitting and in handcuffs and used my personal I – phone (due to an immediate lack of access to a digital camera) to take a picture of Zimmerman’s face. I saw that Zimmerman face was bloodied and it appeared to me that his nose was broken. I also saw that the back of Zimmerman’s head was also bloodied.” Wagner also states in his report that he “then walked to where Martin lay on the ground and took a photo of Martin’s face as well. I observed no physical injury to Martin.” [apart from the fatal gunshot wound to Martin’s chest.]

    Wagner goes on to state that he later learned, on March 18, through Ofc. Smith, that “no photo existed of George Zimmerman with his injuries.” Wagner states that he “then e-mailed both photos to investigator Sereno.”

    You can download all 183 pages of documents released by the prosecution here

    http://www.thedailybeast.com/content/dam/dailybeast/2012/05/17/zimmerman_documents.pdf

    To find officer Wagner’s report, scroll to page 18; you will note at the bottom left of the report it states “printed on 4/2/2012 16:22”.

    It is beyond dispute that prosecutor Angela Corey was well aware of the existence of the photograph of the Zimmerman’s injury, and that she also had copies of these photographs in her possession at least a week and a half before the affidavit was drawn up in submitted to the court.

    In addition to the above, Corey stated in her affidavit that an audio of the 911 tape was played for Martin’s mother and that she recognized the voice calling out for help as belonging to her son. Corey did NOT mention that the audio tape was ALSO played for Martin’s father, who stated that the voice did NOT belong to his son. Corey also did NOT mention that the State had forwarded those recordings to the FBI and requested that specialists complete a voice analysis to determine whether the person screaming for help was Zimmerman or Martin; In a letter dated April 2, 2012, the FBI informed the prosecution that it was unable to determine who was yelling for help on the audio recording because the recording was of such poor quality, because the 911 caller and the 911 operator’s voices are talking over the yelling, and because the words that are being yelled are very short words. The FBI Report/letter dated 4/2 is contained within the 183 pages of documents I provided the link to above.

    • Wagner says he took a picture of Zimmerman’s face.

      We’ve seen a black and white reproduction of that photo.

      He never says he took a picture of the back of Zimmerman’s head.

      That was taken on a different iPhone by a civilian, apparently prior to Zimmerman being handcuffed, because in later releases of that photo you can see a phone held up to Zimmerman’s right ear.

      No way does Officer Smith put cuffs on a guy who just shot someone and then let someone else close enough to hold a phone up to their ear for them.

      When Wagner got there (arriving after Smith and at least a couple of other officers) Zimmerman was already cuffed and in the police car.

      The civilian’s photo of the back of Zimmerman’s head and Wagner’s photo of his face are, it appears, the only ones taken of Zimmerman before he was cleaned up by the paramedics.

      In a way it doesn’t matter.

      It’s not the amount of blood that’s important, it’s the extent of the injuries themselves.

      unitron

      • I couldn’t agree with you more regarding your comments that the amount of blood is totally irrelevant –it’s the fact that he was injured and the extent of those injuries that matters. The prosecution knew of his injuries and made a conscious decision not to include those with in the affidavit . And given what you pointed out in your comment, I think you’re right about the photograph – good tip

    • That photograph was not in the prosecution’s possession when the affidavit was filed. I only make issue of it because Dershowitz did — when he ridiculously called it a “crime” that that specific photograph was not included, when the prosecution didn’t even have it.

      But the main point isn’t whether or not the prosecution had the photograph. It doesn’t matter whether they did or not, because there is no reason why it should have been included in an affidavit of probable cause. The photos of Zimmerman show a man who is bleeding from a few superficial cuts. As such, there is not even a shred of an argument for how these photos could have changed the probable cause determination, and therefore ought to have been included in the affidavit. Again, the affidavit is two pages long — it is not supposed to be a full hearing of the evidence, and the accused has no right to bring exculpatory evidence in his own defense.

      The ultimate credibility and weight of that evidence is not at issue. The only question is whether the State has probable cause to bring charges, which existed here whether or not Zimmerman was injured. So why on earth would those photos be included, when no other exhibits were?

      For that matter, a map of the Retreat View neighborhood is material. Why wasn’t it included in the affidavit?

      Also by your logic, images of Trayvon’s dead body laying in the grass would be material. Did the prosecution commit a crime by not including those photos?

      And images of Zimmerman looking uninjured and put together at the police department after the shooting are material. But they were also omitted — another crime?

      I could go on all day. There are hundreds of material facts, both for and against Zimmerman’s favor, that were not included. Randomly picking out a few possible exhibits and calling it a “crime” that they were omitted from the affidavit is nonsensical. That’s why I asked the questions I did above: (1) what specific evidence was required to be included in the APC?, and (2) why does that evidence eliminate probable cause? But no one has even tried to answer.

      Dershowitz’s defenders would have a regime where the prosecution, at the time of bringing charges, is required to present all evidence in the most favorable light of the accused. But it is black letter law that this is not now, and never has been, how criminal procedure works. It feels silly to even be having this argument, because the claim that the prosecution is required to make the Defendant’s case when filing an affidavit of probable cause is absurd.

      • Susan, I thought I answered, at least your first question but you didn’t reply, as you haven’t to other points I have raised in this thread. I don’t think anybody is saying the document had to contain the entire prosecution case. My answer is that it didn’t contain anything to refute Zimmerman’s claim of immunity from arrest under Florida’s SYG law 776.032, something the original prosecutor accepted. Obviously, you have no intention of accepting my invitation to discuss the fairness and efficacy of the US criminal justice system in general and I can’t see why Florida provides for immunity hearings, to circumvent ordinary trials in self defense cases but not for bank robbery, say. However, accepting the Florida laws, the Probable Cause Affidavit has zilch reasonable argument towards showing Zimmerman didn’t act in self defense but instead committed second degree murder. Handing in such a document would have gotten the writer an F in a good law school and Judge Herr should not have accepted it.

        • Did Zimmerman himself ever specifically claim immunity from arrest under SYG?

          Did his first gaggle of lawyers ever actually do anything for him?

          unitron

  27. I forgot to mention in my post above that in a March 19 audiotaped interview with Sanford police, George Zimmerman’s father, Robert Zimmerman,”that is absolutely, positively George Zimmerman. Myself, my wife, family members and friends know that that is George Zimmerman. there is no doubt who was yelling for help.” Angela Corey was well aware that Zimmerman’s father had identified the voice on the recording as being that of Zimmerman’s, that Martin’s father had told police that the voice yelling for help on the recording was not Martin’s voice,, and that the FBI forensic lab had conducted a forensic analysis on the audiotape, at the state’s request, and had clearly and unequivocally reported back to the state that a meaningful voice analysis was not possible due to the poor quality of the recording, as well as the other reasons I mentioned above. Despite this, a conscious decision was made to include in the affidavit only that Martin’s mother had identified the voice as belonging to Martin. This is simply unacceptable.

  28. Zimmerman’s self defense claim is ‘irrelevant to the PC affidavit”. Are you kidding me?
    Corey was enlisted to ‘Get’ zimmerman and the affidavit clearly reveals that was her goal.

  29. I am still very confused why the discussion has not been made regarding Zimmerman driving around the neighborhood with a loaded gun, exiting his vehicle with a loaded gun and/or returning to his vehicle to retrieve a loaded gun. At what point did the conflict escalate and he had time to return to his vehicle to retrieve the loaded gun? If he had the loaded gun on his person as he exited the vehicle and approached someone: this is NOT stand your ground. This is a non law enforcement citizen approaching a stranger with a gun which tells me he had knowledge things could get violent and he more than likely did not have the physical capability to fight fist to fist. Never mind a married man is driving around the neighborhood on a Sunday evening with a loaded gun but I digress…

    . Trayvon was not running down the street with a television. He was walking with a drink in his hand.

    Zimmerman had no authority to approach and question and certainly not with a gun. Some people are saying if Trayvon had not mouthed off. Why is the duty on Trayvon to be respectful? He has been appraoched by a man with a gun. Are we to believe Trayvon approached Zimmerman? Really, then why wasn’t the fight by Zimmerman’s truck? Why was Zimmerman out of his truck?
    Did Trayvon appraoch Zimmerman in his truck, Zimmerman left his truck (with loaded gun) and somehow the argument moved…I mean come on…this is ridiculous.

    Bottom line:
    This is not the segregated South and blacks do not have to carry a pass and identification to travel. If I were approached by someone in my neighborhood, I would keep walking. If the person killed me, I am certain they would lie. Zimmerman made a huge tragic deathly mistake. His constant meandering and fascination with black males got the best of him. He told the cops he shot the black kid because he was scared and the black kid beat him up, tried to rob him whatever was plausible and the Sanford police found it plausible. They let him go home.

    Trayvon was from a middle class black family. Mom a government worker. OOPSIES! Mom works! Mom isn’t on government assistance popping out babies like pancakes on Sundays. Clearly it makes a difference to White America.

    This is scary. The people supporting him and claiming self defense are scary and frankly I am appalled at the number of people that can excuse this as self defense. You approach someone, with a gun, a fight ensues (did he touch Trayvon, did he say something, why did the argument become physical?) At some point Zimmerman is losing a fight he approached with intent OTHERWISE WHY DID HE NEED A GUN? Why do you need a gun to talk? He loses the fight and he shoots. This is not self defense this is premeditated–a very angry man was on patrol that night.

    I am also very unhappy with the character assassination of Trayvon. He was a teenager, a pot smoking mathematically inclined teenage boy. America blacks will heal when whites realize: BLACK PEOPLE HAVE FEELINGS, WE EXIST and the majority of us are harmless. Spend less time stressing about blacks and more time worrying about the pedophiles, serial killers and rapists within the white community.
    I am also confused about why there seems to be this considerable bitching by Zimmerman about black males running wild stealing—where are the arrests, where are the witnesses? Zimmerman appears to have spread this “fear mongering about criminal black males” and had everyone even the BLACK residents on edge.

    When in actuality–the most criminally frightening individual in the neighborhood was George Zimmerman. May God have mercy on his soul and his Klansmen.

  30. That isn’t a rant Ricky. Love how you throw in the emotionality. Good try but negatory.

    Let me simplify the discussion for you:

    If you approach an expected danger/threat on a public street, kill the supposed danger and then LATER find out the danger wasn’t a danger–can you use self-defense?

    Clearly, no. George Zimmerman killed a suspected threat that was never a threat. His supporters want to pretend Trayvon attacked him, was beating him up—it would have been moot if it were not for the pesky 911 calls. George Zimmerman called 911 but there is no evidence in the 911 call of what exactly was threatening about Trayvon other than he was walking down the street. George never states Trayvon has approached my vehicle, Trayvon is running down the street with my stolen XBox, Trayvon raped my wife.

    Trayvon tells girlfriend he is being followed: THREAT ASSESSMENT.
    George calls the police: THREAT ASSESSMENT (black male walking)
    George exits vehicle with gun. Where was gun? Was it visible to Trayvon?

    George ANTICIPATED an altercation, he suspected Trayvon was a burglar or “up to no good”
    He exited with gun to protect against the threat. If no, then why did he need the gun? He approached the threat.

    The defense claim is specific to the fight. So who approached? George from the beginning has been more aggressive so it is believable he approached Trayvon. It is not a stretch since George is aggressively paroling the neighborhood.

    George Zimmerman’s argument of self defense is negated by intent, anticipation and expectation, lack of immediacy and KNOWLEDGE. I argue STAND YOUR GROUND is a defense for unanticipated immediate grave danger. You kill an immediate threat burglarizing your home, raping you: someone intending to harm you that has INVADED your person, your dwelling.

    Prosecution should work diligently to get George to testify approaching Travyon. If Travyon approached George—we could have a threat. George was never in immediate grave danger until he exited, approached the perceived threat.

    Ubeknownst to George, Trayvon was not a threat. George always knew he had protection: his gun.

    George Zimmerman only was permitted to get away with such a ridiculous claim of self defense because he killed America’s armpit: a black male with no value.

    George Zimmerman was desperate to be respected in law enforcement and is a gross underachiever with a serious inferiority complex specific to black men. That is not self defense that is a mental health issue.

    Shame on everyone for allowing him to scam the courts. This law was not intended to protect those who put their mouth or fists out their but don’t bring their arses. It was intended to protect serious citizens in grave danger trying to defend themselves. If you provoke the fight and lose–shooting the opponent is not self-defense.

    It is murder.

    • Zimmerman called the police department non-emergency number, not 911.

      Assuming he wasn’t thinking ahead of time about staging some elaborate deception, then considering that he said that (the then unidentified male we now know was Martin) was coming towards him, and after he announces that Martin ran we hear him exit his vehicle, I think it’s safe to say that Martin walked in a direction that took him closer to Zimmerman’s vehicle, although most likely just as part of walking past it on his way back to the Green residence.

      We have a recording of Zimmerman’s call to the police, but not of Martin’s conversation with the young lady, and she has not yet been cross-examined and her recollections disected by both prosecution and defense, so one need not suspect her of any intent to deceive to not yet make assumptions about the complete accuracy of what she’s supposedly said so far.

      So, we’ve got Zimmerman’s call, a gap, then the beginning of the 911 calls, and in the gap we’ve maybe got what the young lady overheard to fill in part of it.

      So at this point, we can’t be sure what happened in that gap and who first laid hands on whom.

      There’s nothing wrong with making sure of the facts and then offering opinion labeled as such that starts with the facts and extrapolates from there.

      As for emotion, it’s perfectly obvious this whole thing is painful for you in a way it might not be for those of use closer in color to Zimmerman than to Trayvon.

      Nothing wrong with that or with expressing it, but all the emotion in the world doesn’t turn opinion and conjecture into fact.

      unitron

    • Liberty, I agree, but I sometimes get into one of my H.L. Mencken “black flag” moods.Rick, great to hear from you! Yes, seeisscon is always a consideration in my mind as well. America seems on its way to something never considered by its Founders and I am not at all sure I want to go along for the ride!

  31. Pingback: George Zimmerman's wife arrested for perjury - Page 2

  32. I have a query for the legal eagles, not about the affadavit or Dersh’s ranting, but about how the ground-rules of a GZ trial would work. I’d like to know more about how a self-defense plea affects the burden of proof under Florida law, and how much discretion the trial judge has in interpreting that.

    I.e. in a conventional “I didn’t do it” defense, the state must prove beyond a reasonable doubt that the defendant did indeed do it. But if the defense is, “I did it because I thought I had no other choice” does the prosecution have to prove beyond a reasonable doubt that the defendant did not think that? That wouldn’t make much sense. It would seem that the defense thus ought to assume some burden to prove that yes, the defendant not only thought that, but was reasonable in doing so. However, my understanding is that Florida law requires less than does that of other states in establishing a valid self-defense claim.

    But how would this work in trial, exactly? In an “I didn’t do it” defense, the defendant is not required to testify, and often does not (O.J., John Edwards etc.). But is it possible, under Florida law, to claim self-defense without testifying? If the defendant’s statements to investigators are to be introduced at trial, wouldn’t that give the prosecution the right to cross-examine the defendant on the substance of those statements?

    I’m wondering if the law is vague enough that the trial judge will have a certain say as to what the defense must do to establish self-defense, and what they do not need to do — a certain degree of discretion in interpreting the law.

    Can anyone who knows Florida law shed some light on these questions?

      • Thank you unitron. I had read that post before. Perhaps one reason I had forgotten reading (other than my advancing age) it is that it reads more as a brief of how the law should be interpreted than a review of the different ways the law might be interpreted by a sitting judge. Susan says GZ: “may have to take the witness stand” to claim self-defense. Which leaves open the possibly he may not. What/who would decide whether ‘may/may not’ becomes ‘must/may-decline-to’ testify? And the question of whether GZ must testify doesn’t clarify the degree of burden the defense must assume. What are the likelihoods of different outcomes?

        Susan argues: “If the only evidence he has to support a claim of self-defense is his own testimony, and if his own testimony is shown to be false and misleading, then he has no self-defense claim to proceed on.” But this assumes GZ does not change his story. I’m sure he would accept an obstruction conviction as an alternative to a homicide conviction. He could say: well yes I didn’t tell the exact truth to the police before because I was afraid I would be charged, and I know that was wrong and I’ll accept the consequences, but what I’m telling you know is what REALLY happened. In other words, can the State meet it’s burden (even for manslaughter) simply by proving GZ lied to the SPD? If GZ testifies, what might the court require of him to earn a self-defense instruction? You and I may agree that Susan’s argument is persuasive, but neither of us are sitting on the bench. So I’m still wondering how much discretion the judge may exercise on these matters…

  33. Ah! I take a teensy coffee break from the blogging universe and come back to find that
    you have become amazing?! Wow, times have changed!

    Keep up the sensational work!

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