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”?
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.