Why Florida Is Charging Zimmerman Directly Instead Of By Grand Jury

As you may have heard by now, the Washington Post has broken the news that Florida officials, to wit Special Prosecutor Angela Corey, will charge George Zimmerman in the Trayvon Martin killing. The charging is expected late this afternoon, but could be as late as tomorrow. Here is the key information from the Washington Post report:

Florida special prosecutor Angela Corey plans to announce as early as Wednesday afternoon that she is charging neighborhood watch volunteer George Zimmerman in the shooting of Trayvon Martin, according to a law enforcement official close to the investigation.

It was not immediately clear what charge Zimmerman will face.

Both the AP and CBS News have confirmed that Zimmerman will be charged and the AP is reporting the news conference announcing the charge will be at 6:00 pm EST today. Further, the Miami Herald is reporting there will be one single charge filed in the matter, although they do not report what the charge is.

Now, here is why this is occurring, and it s exactly what I predicted from the moment Special Prosecutor Corey’s office let it be known that she, on behalf of the state, would not be availing herself of the grand jury process, an announcement made Monday.

The bottom line is this: a direct information/complaint is a cleaner, and safer, way for Corey to proceed.

The facts are muddled, and the evidence set for the case was compromised, by incompetent investigation by police from the outset. There is, at this point, no question (and, really, there may never have been) any doubt but that Zimmerman had at least at a nominal minimum, an allegeable self defense claim. That does not mean it is valid, but it does mean that it is legally cognizable.

With the screwed up and compromised evidence status, combined with all the public attention and attendant lobbying of law and factual interpretation, it would be brutal for a prosecutor to take the matter to a grand jury. The first thing a good defense lawyer would do upon knowledge of a pending grand jury presentation is salt the prosecutor with every fact and argument humanly imaginable in his client’s behalf – in writing – and demand that it be presented to the grand jury along with the state’s case. You do that on a high profile case like this with a sloppily worded affirmative defense like Florida’s “Stand Your Ground” law, and there is every reason to believe a grand jury would decline.

But, the odds are far different if a prosecutor, in this case Corey, takes the path of filing an direct information and foregoing the grand jury. A direct information, with a duly issued arrest warrant from the court of competent jurisdiction, gives the case the instant imprimatur of legitimacy, and guarantees that it will be determined by an experienced magistrate, and not lay citizens on a grand jury. This is exactly why I argued to Jeff Toobin Monday night that it was a superior path.

Now, a little further depth on what is at play, and for that I will turn to an excellent, and correct, analysis by Reuters on this subject:

To mix metaphors, Stand Your Ground is no Slam Dunk.

The controversial 2005 Florida law grants immunity to people who use deadly force in self defense. In the days since George Zimmerman shot and killed 17-year old Trayvon Martin, critics and supporters both seem to have assumed that if Zimmerman is charged, he could easily seek and win immunity from prosecution under Stand Your Ground.

But don’t be so sure. Interviews with nearly a dozen veteran defense lawyers who have experience litigating Stand Your Ground cases suggest winning immunity could be quite difficult.

“Judges do not readily grant these (immunity) motions because they know they can pass it on to the jury,” said Carey Haughwout, the public defender for Palm Beach County.

So far, Zimmerman has not charged with any wrongdoing. A special prosecutor, Angela Corey, is still investigating the incendiary case, which carries heavy racial overtones and has stirred a national outcry.

But if charges are filed and Zimmerman does choose to seek immunity, he will face challenges at almost every stage, lawyers said.

The first hurdle will be a special evidentiary hearing in front of a judge, where Zimmerman will have the opportunity to argue that he deserves immunity. But to convince the judge, Zimmerman will have to present a “preponderance of evidence” that he acted in self defense, which under the law means he has to show he had “reasonable belief” that such force was necessary. That is a high bar, and difficult to prove, criminal defense attorneys said.

In cases where the facts are in dispute — and even if they don’t seem to be — the judge is likely to deny the Stand Your Ground immunity motion, said Ralph Behr, a Florida criminal defense attorney who has filed eight motions for immunity, all of which have been denied. More typically, a judge will choose to have the case go to trial, where the defendant must take his or her chance with a jury, just like other criminal defendants, he said.

“Most judges, I think, are comfortable letting the adverserial system play out before a jury rather than make decisions themselves,” said Behr.

Bingo! I literally could not have said it better myself. Hats off to Reuters for some fine analysis. See, filing the charge via information guarantees it gets to a court. The first step is almost certainly (and Florida criminal code is a bit, um, confusing, but seems consistent with the norm) that Zimmerman would be given an initial appearance within 48 hours of his actual physical arrest, and would be set for a preliminary hearing within ten days of the date of his initial appearance (unless he waives said time limit and requests an extension). The magistrate is going to want no part of being the final arbiter, and will want to pass this on to a jury trial level court. And, as the Reuters analysis explains, things actually favor the case getting to the jury. This is almost surely why the case is proceeding as it is. And, no, it is not, as Think Progress blithely stated, because Angela Corey definitively decided “Stand Your Ground” is inapplicable; it is about making a further court decide that issue as Reuters explained.

One last thing, in addition to the above discussion, it simply is not, and never has been, that the infamous Florida “Stand Your Ground” law is the controlling boogeyman that nearly every commentator has made it out to be. David Kopel, at Volokh Conspiracy, says:

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say.

I do not want to expend the space to cover all that David did again here, but do go read his lengthy piece on the full nature of Florida homicide and self defense law, it is very good. While I do not agree with every thing Kopel says it is, on the whole, spot on as to how Zimmerman/Martin is really a normal self defense/justification case. And so it is.

Lastly, a prediction. As related above, it appears there will be a single count charged in Corey’s information against Zimmerman. That is certainly not unusual nor distressing in the least if you are experienced in such matters. Actually, it is predictable. I predict that charge will be a single count of manslaughter under Florida Revised Statute 782.07 and aggravated under subsection (3) because Trayvon Martin was under the age of 18 years old.

So, that is why we are where we are, and my predictions for where this case is going, and why.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
18 replies
  1. MadDog says:

    Assuming just for discussion that Zimmerman decides not to turn himself in, that in and of itself would add an additional charge (something like flight to avoid prosecution), correct?

    Once apprehended, however long that would take, based on that additional charge, would it also then be likely that bail would not be approved given the failure to surrender?

    This is all moot of course if Zimmerman surrenders as I suspect any good defense attorney would recommend.

  2. rugger9 says:

    There were a couple things that are still loose ends as I see them with respect to the situation:
    1) Has anyone located Trayvon’s phone? Accessed the records and conversations from it, which would confirm the girlfriend’s account?
    2) Has anyone looked into the apparent influence of the relative who just happens to be a GOP federal judge in VA? I’m not so sure that’s the the exact nexis of the reluctance by Sanford PD brass to pursue the many transgressions of Z over the years [who gets off with a slap on the wrist for assaulting a cop?] , but perhaps some digging into the HOA management would provide the ties needed to explain the odd inactivity regarding Z. The judge might be where Z is since [according to the lawyers] he’s not in FL, so try VA.

    As far as the video and stuff, recall how the former lawyers claimed that Trayvon jumped on Z and beat his head repeatedly into the ground and breaking his nose. They further explained that “shaken baby syndrome” is why no marks are apparent on Z in his trip to Sanford PD because you can’t see SBS damage. However, there is no possibility for that assertion to be true, given what the lawyers claim happened. Broken noses bleed profusely [something I’ve seen more than a few times playing] unless it’s was done essentially surgically in the precise orientation that wouldn’t break any blood vessels [recall, no swelling either], which isn’t what you get in a struggle getting pounded on a sidewalk. Because of the claimed actions, we should also see marks and damage on the shirt, front [blood] and back [more blood from the gashes that need stitches, plus disarray and holes from the concrete] as well as marks on the arms/elbows from being scraped on the concrete [unless we are asked to believe Z didn’t move at all while being bloodlessly pounded]. In short [when combined with the 911 audio], there were reasons the detective wanted Z charged, and there is a reason the brass let him go and apparently skip town. That nexis needs to be found and exposed.

    One last note: Sanford is in Seminole County IIRC, and very near Orlando, which has a large tourist industry. It might be worth a boycott if justice is not done here.

  3. MadDog says:

    @MadDog: Nevermind! CNN is now reporting that Zimmerman is now in FDLE custody. And CNN reports it was voluntary.

    Given the alternative, that would be the smart thing to do.

  4. MadDog says:

    Interesting that the charge is 2nd Degree Murder as opposed to Manslaughter.

    Any legal eagle thoughts on what distinguishes the two?

  5. JTM says:

    That means that they’re arguing that it was malicious and intentional (albeit not planned), as opposed to it being simply unlawful and/or negligent.

    I, for one, am surprised. Maybe they’ve dug something up on Zimmerman that we haven’t heard about.

  6. uncle vester says:

    Not a lawyer, and this may be a stupid question, but is it possible she’s charging 2nd degree murder in an effort to get him to plead down to manslaughter?

  7. JTM says:

    I don’t have any idea. What I just did is a quick (and pathetic) search for how often cases where the defense argues self-defense are prosecuted as Murder-1, Murder-2, or some kind of Manslaughter and it seems that Murder-2 is actually the most frequent. So I’m now very interested in why bmaz predicted Manslaughter.

  8. DWBartoo says:

    Thank you, bmaz, for your excellent explanation.

    The “Chicago Sun Times” says; “The charge carries a maximum sentence of life in prison. Second-degree murder is typically charged when there is a fight or other confrontation that results in death and where there is no premeditated plan to kill someone.”

    DW

  9. Tera Powers says:

    What are your thoughts now that she’s moved on Murder II? Perhaps more troubling indications of Zimmerman’s account – maybe some conflicting testimony on his part? Or just the hope that lesser includeds will be reached – or a plea on those?

    And it’s a bit off-topic but CAN WE PLEASE GET OUR PUBLIC SERVANTS TO STOP PRAYING WITH VICTIMS AND STOP ASKING THE PUBLIC TO PRAY? Criminy.

  10. ryan says:

    I don’t assume any truth in the theory that Trayvon Martin may have turned on Zimmerman before the gun came out.

    But I’ve been intrigued by the thought that if he did, stand your ground could cover his actions rather than those of Zimmerman. After all, he was a black man being stalked by a white guy in an SUV carrying a gun.

    I think that’d be a long way off message for the prosecution, given ample reason to believe Martin never turned on Zimmerman. But I just wanted to mention the thought. Bottom line is that stand your ground means in a setting of mutual distrust, neither party has a legal obligation to back down, which is a recipe for disaster.

  11. Bartman says:

    Simple question of fact: did Special Prosecutor Angela Corey announce her decision to not seek a grand jury indictment of Zimmerman after the current grand jury in Sanford that would have heard her on Zimmerman was empaneled, or the pool of those jurors may have been known by her?

    If so, that would raise serious question as to whether Corey was aware of the racial, gender and ethnic composition of the panel when she decided to “go it alone.” Any one know the facts on this one??

  12. Bob Schacht says:

    I know this thread is dead, but I just wanted to say that I saw special prosecutor Angela Corey make the announcement of the charge, and I was extremely impressed, both with the announcement, and the Q&A afterwards. Maybe a practiced ear like bmaz’s would be less impressed, but after the circus represented by Zimmerman’s first lawyer duo, Corey was refreshing.

    Bob in AZ

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