The “Justice for Trayvon” crowd seems pretty enthused with State’s Attorney Angela Corey’s second degree murder indictment of George Zimmerman. The overwhelming consensus among people who study or practice criminal law, however, seems to be that Corey caved to public pressure.
Incredibly, it claims without support that Zimmerman was “profiling” Martin. It misrepresents what the dispatcher said to Zimmerman, calling it an “instruction” not to follow Martin. (The dispatcher said, “We don’t need you to do that” to which Zimmerman responded “Ok.”)
It says, without providing a basis, that Zimmerman confronted Trayvon. It then says a struggle ensued, at the end of which, Trayvon was dead. It says witnesses heard arguments, a struggle and cries for help. It does not say anyone saw the actual struggle. (It doesn’t refer to the one witness, John, who told police on his 911 call he did observe the struggle and has later said Zimmerman was on the bottom crying out for help.)
The only support for its belief the voice crying for help was Trayvon’s is his mother’s identification. There’s no reference to Zimmerman’s father or brother saying they believed the voice was Zimmerman’s, or that the officer at the scene overheard Zimmerman say he cried out for help.
It makes no reference to who initiated the physical struggle. Or that Zimmerman was observed bleeding at the scene. It only says “Zimmerman confronted Martin and a struggle ensued.” . . .
The only independent investigation they mention, interviewing witnesses, is the least reliable method of investigation they could have pursued. New versions of witness statements are inherently unreliable. These statements are the product of “post-event information.” in which the witness’ current memory is a co-mingling of actual memories from the event and information learned later, from the media and others.
The likelihood of error in these later statements is even greater if they were made after they “pooled information” with other witnesses, learning what others thought they heard and saw. Memories influenced by post-event information and pooling of information are major causes of faulty eye-witness identification, which in turn is the leading cause of wrongful convictions in this country.
Affidavit = FAIL. That a judge signed off on this as establishing second degree murder which according to Florida jury instructions and case law requires the killing be done with “ill will, hatred, spite, or an evil intent” is perplexing, to say the least.
Merritt again, in a separate post:
Given that Trayvon and Zimmerman were strangers, if the state’s argument for finding enmity and ill-will is that Zimmerman’s hatred of criminals extended to Trayvon because he assumed Trayvon was a criminal, I don’t think it will prevail. It seems to be just a story, intended to cover the gap in the intent requirement between murder 2 and manslaughter, in a way that that avoids the topic of race. Since it neither proves Zimmerman was the aggressor nor disproves he acted in self-defense or had a reasonable fear of death or serious bodily harm, the state’s story may be insufficient to establish either offense.
No wonder Angela Corey wanted to bypass the grand jury. She only had 1/2 a ham sandwich and forgot the mustard.
It’s a piece of crap.
Explaining why could be an epic post, but I don’t have much time, so I will make it brief.
The affidavit is argumentative, it’s conclusory, and it lacks attribution.
The affidavit takes the lazy way out, starting with a paragraph that says, in effect, “we investigated a bunch of stuff, and here’s what we learned,” followed by a narrative of what the affiant believes happened. Almost nothing is specifically attributed — that is, for most facts asserted in the affidavit, it is impossible to determine whether a witness told the affiant the fact, how the witness knew, or whether it is just a conclusion drawn by the affiant.
This makes the argumentative and conclusory elements of the affivadit that much more problematical. For instance, the affidavit states that Zimmerman “profiled” Martin. But it’s impossible to determine if (1) that’s the affiant’s characterization of the narrative that follows, or (2) that’s intended as a separate factual assertion based on unspecified facts or evidence or witnesses. Similarly, the affidavit makes numerous statements about what Zimmerman thought or intended. It is impossible to determine whether these statements are (1) conclusions based on Zimmerman’s actions and statements to the 911 dispatcher, (2) admissions Zimmerman made in some unspecified statement, or (3) mere argument.
The affiant occasionally gets it right — for instance, stating that Martin’s mother identified his voice on the 911 tapes as the person calling for help. But for the most part, the affidavit offers a narrative of events, not a description of evidence supplying probable cause. Moreover, it is bizarrely vague at the most critical juncture — it blandly states “Zimmerman confronted Martin and a struggle ensued.”
This is not the worst affidavit I’ve ever seen — but it’s damn close, and the decision to proceed based on it in such a high-profile case is stunning.
I watched with surprise at the unfolding decision by state attorney Corey to file second degree murder against Zimmerman. Corey is reputed to be a prosecutor who is both tough and possessing integrity. For all I know, she and her colleagues have all sorts of evidence that hasn’t yet been leaked and that would support a murder charge beyond a reasonable doubt.
But if everything we’ve seen reported is true (and I’ll assume this provides a useful summary), and there aren’t other missing pieces of evidence, I cannot fathom how a jury would return a guilty verdict for murder. If that’s right, what could justify bringing a murder charge? Certainly, the idea of charging high with the hope of inducing a plea could explain bringing a murder charge as a matter of tactics. But it would not be a justified basis for bringing a murder charge. To my mind, it would be repugnant to bring a high charge if the prosecutor herself does not readily believe in it, and if it is not readily provable beyond a reasonable doubt. Some jurisdictions or prosecutors’ offices might say: this is complicated stuff, we have an adversary system, let the jury sort it out. That’s a cop-out. Prosecutors are not partisans or advocates; they’re agents of public justice. I have no special insight into Corey’s evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice, and one that happens so frequently that it’s become difficult to see in plain sight.
Mark Bennett, in his Blawg Review:
Last week saw the arrest of George Zimmerman for second-degree murder in the killing of Trayvon Martin. How far we’ve come since 1963: here the protesters, rather than being willing to go to jail for their principles, wanted the government to put a man in jail for their principles.
The blawgosphere has, to its credit, been generally critical of the charge . . .
Most affidavits of probable cause are very thin. This is so thin that it won’t make it past a judge on a second degree murder charge. There’s simply nothing in there that would justify second degree murder. It’s not only thin, it’s irresponsible.”
I think what you have here is an elected public official who made a campaign speech last night for reelection when she gave her presentation and overcharged. This case will not – if the evidence is no stronger than what appears in the probable cause affidavit – this case will result in an acquittal.
This affidavit does not even make it to probable cause. Everything in the affidavit is completely consistent with a defense of self-defense. Everything.
“Bmaz” at Marcy Wheeler’s emptywheel blog breaks the indictment down paragraph by paragraph, and concludes:
It is completely lacking in requisite and necessary attribution for the extremely few and, really, innocuous facts it does present, and the rest comprises nothing but unsupported and wholly conclusory statements meant to infer criminal activity, but which do not even do a competent job of that.
In short, it is shit. To be honest, this affidavit, within its “four corners” arguably does not even meet the necessary burden of probable cause for Manslaughter under Florida section 782.07, much less the “depraved mind” necessary under Florida’s Second Degree Murder charge under section 782.04(2) as charged in the information. George Zimmerman may have committed a crime, but it is not demonstrated in this affidavit, and certainly is not as to the crime charged, Second Degree Murder. Charles Blow can praise this thing until the cows come home in the august pages of the New York Times, but it is still a pile of junk.
But the above discussion is all about what is in the affidavit, let’s talk about what is not in the affidavit as well. The affidavit goes out of its way to spin innocuous and perfectly legal activity into some nebulous vignette of implied criminality, yet self servingly there is not a single fleeting reference to Zimmerman’s claim of having acted in self defense. To be sure, in charging a case, a prosecutor is going to frame the facts to support her charge. But that does not mean she can blithely ignore patently exculpatory facts known to her and germane to the interests of justice. Angela Corey’s affidavit is thusly not just deficient, but dishonest in a very slimy, even if not unethical way. It is patently offensive in that regard.
The case is also patently overcharged. As stated above, I think it is more than arguable that the probable cause affidavit does not even support manslaughter, but it is not remotely close to supporting second degree murder. This is an embarrassment not only for Angela Corey, but the magistrate who signed off on this bunk. It makes the criminal justice system look horrible.
Monroe Freedman looks at the Corey press conference, and questions the prosecutor’s ethics.
Corey: “We know only one category as prosecutors, and that is a ‘V.’ It’s not a ‘B,’ it’s not a ‘W,’ it’s not an ‘H.’ It’s ‘V,’ for victim. That’s who we work tirelessly for. And that’s all we know, is justice for our victims.” Corey also referred to “our precious victims.”
ABA Std. 3-2.1, cmt.: “The idea that the criminal law … is designed to vindicate public rather than private interests is now firmly established.”
ABA Std. 3-3.2, cmt.: “the prosecutor’s client is not the victim.”
Corey: The first thing my team and I did upon being appointed was to meet with Trayvon’s family and pray with them. “We opened our meeting with prayer.” Also, Ms. Corey thanked “all those people across this country who have sent positive energy and prayers our way,” and she asked them to continue to pray for Trayvon’s family and for her team. “Remember, it is Trayvon’s family that are our constitutional victims….”
At this point, do we need the due process of a trial by jury? Can Zimmerman receive the due process of a trial by an impartial jury? Why should anyone care?
The one thing I’d add is that I was taken aback by Corey’s statement at the press conference that the first thing she did after she was appointed to the case was pray with Trayvon Martin’s family. I find the idea of a prosecutor praying with a victim’s family off-putting in general. But it’s particularly troubling in this case.
Here’s why: In this case, Corey’s job wasn’t to discover who committed what everyone acknowledges was a crime. Her job was determine if a crime was committed at all. Remember, George Zimmerman claims that he is the victim here. You can disagree with that, even scoff at it. Personally, while I’m not yet convinced he committed a crime, I certainly don’t think he’s a victim. But Corey’s job here was to determine who the victim actually was. Her task was to conduct an investigation, weigh the evidence, then determine what charge, if any, was appropriate. By meeting with Martin’s family, praying with them, and implying in her press conference that she immediately saw them as the victim’s family, she gave the impression that she had made up her mind before she started investigating. And her weak indictment did little to vindicate her of that notion.
None of this is to say Zimmerman didn’t commit a crime. I still really have no idea. But what’s happened in the last couple weeks doesn’t feel like justice. It feels like a railroading. It’s remarkable how many items have been wrongly reported about the case thus far, and nearly all of the false reports were damaging to Zimmerman. (There are a few exceptions involving right-wing sites posting allegedly incriminating photos of Martin that turned out to have been faked or Photoshopped.) Zimmerman’s size relative to Martin was exaggerated, the racial slur he uttered is now discounted even by Corey, and his apparent unsolicited reference to Martin’s race in a 911 call turns out to have been selectively edited. There are other examples. This to me suggests a media and commentariat that very much wants there to be a crime here, not a media and commentariat in search of the truth.
There does seem to be a rift forming between people who practice criminal law (and as far as I know, all the people cited above lean left or libertarian in their politics) and the mostly progressive commentators who are cheering on the indictment. That speaks well of the criminal law crowd. It doesn’t speak well of the others.
The anger and outrage about how black people are treated in the criminal justice system is well-founded, well-supported, and consistent with my own experience reporting on these issues (although I think the common denominator is increasingly more poor than black). And there appears to be some of that history in Sanford as well, particularly in the way police investigate crimes—including this one. I’ve read in several places the proposition that if the races had been reversed that night in Sanford, Trayvon Martin would have spent the last month awaiting his murder trial from a jail cell. I think there’s plenty of history to support that sentiment. But we can’t hang all of the inequities of the criminal justice system on George Zimmerman. He deserves to be tried only on the facts specific to his case. Even gung-ho, wannabe cops deserve due process, and a fair crack at justice.