Zimmerman: Anatomy Of A Deficient Probable Cause Affidavit
Now that the dust has settled from the decision in the Zimmerman/Martin case not to proceed by grand jury by the Florida Special Prosecutor Angela Corey, and the decision to file a single count of second degree murder, I want to address a couple of critical topics in the case. First is the fact that there are serious questions as to the sufficiency of the probable cause affidavit that currently constitutes not just the core, but pretty much the entire basis for the state’s case.That will be the subject of the instant post. Second, will be a discussion of the mechanics of Florida’s procedure for implementing its “Stand Your Ground” law and a discussion of other pending procedural aspects of the case, and that will be covered in a followup post.
A probable cause affidavit is exactly what it sounds like, a sworn affidavit delineating probable cause in a criminal case – whether it be to search a place, arrest a person or charge a crime. Whatever the particular purpose, the affidavit must delineate the factual basis to support the specific legal action sought to be pursued by the state. And the general principle common to all such affidavits, whether for search, arrest or charging, is that it must “stand on its own” based on “what is within its four corners”. In lay terms, that means there must not only be sufficient information to cover all requisite elements necessary for the action, all such support must be actually in the affidavit – not in some extraneous place or with some extraneous source.
The Zimmerman affidavit is, at least by my analysis, wholly deficient for its purpose intended, i.e. to support the criminal charge under Florida law of second degree murder against Zimmerman.
We will start with a look at what useful, and useable, information is actually contained in the affidavit. Here is a complete copy of the full three page affidavit filed by the State of Florida in the Zimmerman case. Other that captions, signatures and certifications, all pertinent information is contained in twelve text paragraphs on the first two pages. Let’s look at them:
Paragraphs 1-3: The first three paragraphs give the names of the two investigators that are serving as the affiants for the affidavit and gives their background experience that qualifies them to do so. The investigators, O’Steen and Gilbreath both appear to be very experienced and appropriate for the task. No problems here.
Paragraph 4: The fourth paragraph details the types of material, evidence and sources the affiants relies on. Pretty standard stuff, again no problems here. (Interesting that the state appears to have a lot of “sworn statements” – even from cops, which is kind of unusual at this stage. Cops rarely give sworn evidence if they don’t have to, and prosecutors rarely want to lock them in this early. There may have been an internal affairs type of investigation that explains this, we shall see).
Paragraph 5: The fifth paragraph is the first factually substantive material. It details that Martin was living in the gated community at the time of the event, was returning from the store (with the infamous Skittles) and was unarmed and not engaged in any criminal activity. Then, however, the affidavit blurts out a critical, but completely unexplained and unsupported claim, namely that Zimmerman was “profiling” Martin. It does NOT allege that any such “profiling” had a racial animus or was, in any sense, illegal or improper. This is important because, while it is a rhetorically charged term, profiling is completely legal, whether for police or average citizens, so long as it not based on an improper invidious animus like race, religion, sex, etc. So, with NO allegation of improper animus here, and there is not, the profiling alleged is completely and unequivocally legal. Further, there is absolutely no specific attribution as to where this allegation came from – did Zimmerman admit it, if not what was the basis for the conclusion by the affiants? We have NO idea whatsoever, it is just a raw conclusory statement of absolutely no value whatsoever in its naked state. In short, there is nothing in Paragraph 5 that does anything to actually provide probable cause for the crime charged.
Paragraph Six: Paragraph six is much like paragraph five, except it details the intro to Zimmerman, where paragraph five did so for Martin. Zimmerman also lived in the gated community. It relates Zimmerman was “driving his vehicle” (we have no idea from where or to here) and “assumed Martin was a criminal”. Well that sounds bad right? Well, not really. First off, again, there is absolutely NO way of knowing where this information came from – did it come from Zimmerman? Was it culled from the 911 tape? Did a psychic conjure it up? We don’t know. Remember, it is seminal affidavit law that a;; pertinent facts must be supported and attributed “within the four corners of the document”. There is also a statement the 911 dispatcher told Zimmerman an officer was “on the way”. Again, there is absolutely nothing in Paragraph 6 that does anything to actually provide probable cause for the crime charged.
Paragraph 7: Paragraph seven is yet more of the same. It describes that Zimmerman believed there had been unsolved break-ins in the neighborhood, and “fucking punks” and “assholes” “always get away”. Credit where due, we finally have a specific attribution point for the statements by the affiants, it is specifically stated to be from the recorded 911 call. See, the state and affiants are capable of proper attribution when they want to. Small victory. The problem is, there is still NO improper or illegal activity described. None. So far, Zimmerman is judgmental and concerned about his neighborhood, but there is not one scintilla of illegal conduct.
Paragraph 8: The eighth paragraph starts out with a description of a call Martin was on supposedly at the time he was being observed and followed by Zimmerman. But, again, there is not squat for specificity or particularity, the linchpins of a proper affidavit. We are not old who the person on the phone with Martin is, what the exact time of the call, and length of call, was, and we are not told how that information is known. Was that person interviewed by cops? Did she give a sworn statement? Did these investigators talk to her themselves, or was it some other officer and, if so, who? Hearsay, and even double or triple hearsay is acceptable in an affidavit, but the path and facts establishing it must be delineated. Here it is not. Then paragraph 8 goes off the edge, veering into some of the most unattributed and nakedly conclusory statements imaginable. It alleges Martin tried to run home, Zimmerman got out of vehicle and pursued, that Zimmerman thought Martin might commit an immediate crime before cops could arrive and that the 911 dispatcher told Zimmerman to wait for the cops but Zimmerman disregarded the advice. Other than maybe being able to assume the dispatcher advice is on the tape, we have no idea who, what, when, where or how the affiants know their wholly conclusory statements. It is simply unsupported tripe. Oh, and there is STILL no evidence of any criminal activity whatsoever. None.
Paragraph 9: Paragraph nine starts the actual meat of the subject confrontation. Let’s look at it sentence by sentence. “Zimmerman confronted Martin and a struggle ensued.” Okay, how do the affiants know this, did it come from Zimmerman’s statement? Some other unidentified witness? Was there surveillance video? we have no idea. Just another completely unsupported and unattributed statement lobbed out. Even if it were to be taken at face value, it at best relates that Zimmerman confronted Martin, it DOES NOT indicate who started the “struggle”. It is an absolutely critical fact, and there is no indication whatsoever given. If Zimmerman is to be charged with acting with a “depraved mind” it is hard to see how that could be if Martin started the actual physical, as opposed to verbal, “struggle”. But we do not know who did so, because the affiants did not include that. It is pretty clear there is no eyewitness or other direct evidence on this fact, because the next sentence reads “During this time period witnesses heard numerous call for help and some of these were recorded in 911 calls to police.” This is not only not attributed to specific witnesses (whether named or otherwise separately identified), nor is there any indication of how the affiants know it, it is completely harmless information. There is NO way to discern WHO was crying for help or whether both individuals were. The last sentence reads “Trayvon Martin’s mother has reviewed the 911 calls and identified the voice calling for help as Trayvon Martin’s voice.” Which 911 calls? just the one that Zimmerman made? Or was there others? Did the cops eliminate Zimmerman’s voice as making any pleas for help through voice print analysis? That is one of the first things that should have been done; seems telling there is no such evidence. Surely the cops recorded Zimmerman. Irrespective, even assuming Martin’s mother is correct in her identification, that shows NOTHING as to who initiated the physical portion of the “struggle” or who was doing what to whom in it. In short, somewhat shockingly, there is STILL not one iota of criminal activity, of any kind, on the part of George Zimmerman stated in this affidavit.
Paragraph 10: “Zimmerman shot Martin in the chest.” Zimmerman fully admitted it, and admitted it was his gun and turned it over. Well, that at least establishes a homicide has occurred, as a homicide is defined as the killing of one human by another human. There is, however, STILL nothing establishing how or why this homicide was criminal. Seriously there is nothing in the affidavit to establish criminality, much less a “depraved mind” on the part of Zimmerman.
Paragraphs 11-12: The final two paragraphs of the core affidavit add nothing in the way of criminality. Paragraph eleven establishes Martin died of a gunshot wound and paragraph twelve relates that the cops have other evidence and want a charge of Second Degree Murder. Nothing in these last two paragraphs bolsters criminality whatsoever.
And that, folks, is it. It is completely lacking in requisite and necessary attribution for the extremely few and, really, innocuous facts it does present, and the rest comprises nothing but unsupported and wholly conclusory statements meant to infer criminal activity, but which do not even do a competent job of that.
In short, it is 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.
None of this is to say I think George Zimmerman is innocent of any crime for the incident that led to Trayvon Martin’s death, nor is it to say that the state may not possess sufficient evidence to convict Zimmerman of some crime at a trial. In fact, I am highly disturbed by Zimmerman’s behavior and Martin’s death. All I am saying is, is that while there may be probable cause to charge Zimmerman, it has in no way, shape or form demonstrated by the State of Florida’s official legal statement that is supposed to be the foundation for charging Zimmerman. Zimmerman should not be charged, nor sitting in a county detention, based on this document; yet there he is.
There are other developments in the procedural case, involving the trial judge, upcoming bail determination hearing and assertion of the official Stand Your Ground affirmative defense. I will come back in the next day or two to address those items.
i found it very interesting to follow the analysis of a defense lawyer thru a charge para by para.
my suspicion is and has been that any prosecution of zimmerman will have been set up to fail due to the “realities” of a grotesqely right-wing political establishment in florida.
see this article, for example:
As I can and do make typos with alarming regularity, I will not charge, nor convict bmaz of the same (hint, hint *g*), but for the sake of the sanctity of the “four corners” requirement, I would be remiss if I didn’t cosmetically airbrush what at last I found on my computer screen:
This is fantastic. Thanks very, very much.
(Oh, in your discussion of Paragraphs 11 and 12, you seem to call them Paragraphs 9 and 10, instead.)
Given what bmaz’s post credibly describes, and as IANAL, what are the realistic outcomes in addressing these deficiencies?
For example, these questions come to mind:
1) Does such a deficient affidavit allow the defense to submit a habeas corpus legal action?
2) Would the typical judge (perhaps other than one in Sanford Florida) rule in favor of such habeas corpus legal action and release Zimmerman?
3) Can the prosecution merely re-do their affidavit to correct the deficiencies in lieu of a judge’s ruling that the defendant must be at once set free?
4) Does such a deficient affidavit in any way legally poison the prosecution’s case against Zimmerman, e.g., penalties imposed on the prosecution’s case, future dismissal of any similar charges against Zimmerman, or as in the sport of baseball, will these deficiencies be merely treated like a foul ball and the prosecution be allowed to swing again?
Key question: Does a crappy affidavit mean anything for the case? This is Florida, after all. (Motto: “We’re not as bad as Texas yet, but we’re working on it.”) My guess is that the answer is no and that he’ll go to trial regardless of how deficient the charging document is. And if that’s the case, it explains WHY the charging document is so bad–if it doesn’t matter how sloppy it is, then there’s no reason why anyone would waste their time making it look good.
Oh, and did Martin actually LIVE in this neighborhood? My impression was that he was visiting the area and was staying at an apartment/house/whatever that was actually outside the “gated community”.
@JTM: Thank you and MadDog, my human AP stylebook friends. Erp, yeah those were mistakes. Was kind of rushing to finish so I could drive my daughter twenty miles away to take here ACT test.
Great read bmaz thanks for your work on this ‘translation’.
As said above, I suspect this deficiency you speak of is intentional, and the suspect will not be fully investigated nor prosecuted, and the perp walks.
Would you please comment on this aspect of the case? Your insights/experiences qualify you to do so MUCH better than those of us who are not legal beagles . . . ;-)
@FrankProbst: and @MadDog: No, no habeas petition. Which gets us to Frank’s question, what the hell, if anything, does it mean? I dunno for sure. In Arizona, there would be a preliminary hearing set, and since the defendant is in custody, it would be held within ten days; the defendant could challenge the probable cause there. But Florida appears to dispense with such due process procedural niceties via Criminal Rule 3.133
What is simply stunning is that a judge, any judge, accepted that affidavit as probable cause to issue the arrest warrant for Zimmerman, but that is exactly what happened. My guess is O’Mara will challenge through a motion to dismiss concurrent with the Dennis hearing on the Stand Your Ground defense, which will be addressed in the next post on this topic.
Thank you, bmaz, for this instructive foray into the legal steps of due process, not just for this case, but for any.
Is the repug-appoited attorney setting the case up for a fail? Do the repugs want a “Not Guilty” verdict, which could lead to riots the way the Rodney King verdict did? Repugs seem to really, really love it when minorities riot or even speak in an angry way. It reassures the bigots that they’re correct in their bigotry. And it makes for great Live TV.
I wonder if ‘profiling’ is referring to Zimmerman’s record of calling to report suspicious persons, all of whom seem to have been black and mostly young.
Also I seem to recall when the SP was appointed that her record was noted as having some questionable points.
Fascinating and an education in the neceties of Florida criminal procedure. I read the affidavit before your piece bmaz and the first thing I noticed was that it did not even start grammatically, being worded as if singular when there were two investigators. It should read “depose” and “say”.
This is the work, I suggest, of a department in meltdown and panic, probably doing reluctantly what ought to have been done promptly at the outset. All sorts of people will be criticised as the case proceeds and lots are probabl;y pretty angry and confused at having been caught up in the new World of social media.
The affidavit seems to rely on some logical jumps that really fail to reach much of a standard of proof or any particular clarity with regard to the law particularity of a presumption of profiling and then a logical leap that profiling is equivalent to depravity. Not sure in the age of pre-emptive protection that this conclusion follows. The question is really now is private unreasonable suspicion now as a matter of law evidence of a “depraved mind.” This logic is an attempt at reaching something like “felony-murder” with the inherent presumption that “profiling” is inherently “depraved” and hence the frame of mind the murder statute guards against. This maybe where the criminal law is heading in a multi-cultural environment with the federal law steeped in the concept of hate crimes but its hard to beleive that the Florida law as it exists now engenders this progression.
I was somewhat surprised to see the “****ing punk” allegation appear as well. Is this the reference to the whispered, under the breath, audio jumble that the media has analyzed endlessly?
Just some impressions. And one would have to wonder whether the “stand your ground” defense would even apply to a manslaughter charge that sounded in a kind of negligent homicide where intent is not a necessary element of proof in understanding why manslaughter was not charged.
Not suggesting I have any particular procedural insight, but these are the areas where questions arose upon my reading of the affidavit. It was surprising that it offered no information beyond what has been honed in on in most coverage. Its a compelling and tragic case. It will be interesting to see how it develops.
Actually, there must now be a preliminary hearing since there was no GJ indictment. That is where the case will be dismissed, if this is the best the state has. We’re talking two different probable causes here. First one is for the arrest, the second for pc to believe that he committed a crime.
@JThomason: No, I think that is about right. I think they could make out at least probable cause for simple manslaughter or negligent homicide, but it is hard to see the count charged ever making it past a motion to dismiss or, at worst, past a directed verdict motion for acquittal at the end of the state’s case. Even assuming they have every bit of what we think they have, i.e. decent testimony from the girlfriend and some witnesses who heard and/or saw portions of the encounter, if Zimmerman takes the stand and is credible, I still do not see how they convict.
The state may well have more; they are going to need it, because this will not get them home.
Can someone please tell me why, if Martin and Zimmerman were in a struggle as has been alleged by Zimmerman’s people, and Martin was on top and shot at close range, why there were no blood stains on Zimmerman? I’m not a gun expert; in fact, I don’t even like the things, but I thought when someone got shot they made holes in people and blood sputtered out of the hole.
Just wondering …………….
@chetnolian: I agree, and it is not just grammar, the whole affidavit is pitiful. They have had the case for a while now, and stated they knew they were going to file it by information and probable cause warrant as opposed to grand jury almost a week before they filed this and announced on late Wednesday. They have a high grade prosecutor specially assigned to this case, with a staff and the two affiant investigators have over 30 years each of high grade felony and homicide experience.
This is the best they could come up with?? That is not a good comment, I shouldn’t think.
@RLL: Well, that is sure how it is in my state, but I have seen no evidence of that in Florida. There has been no mention of a prelim, and the date would have been set for that at Zimmerman’s initial appearance, because there are always strict time limits for a prelim on a defendant in custody. Not a peep was uttered. And check out FL Rule 3,133 that I cited up at comment number 9. I am kind of shocked that it is not what you related, because that is the procedure everywhere I have ever practiced or seen.
It seems to me that there are two pieces of evidence that may lead to a conviction, though neither is spelled out clearly in the afidavit. First, Trayvon’s girl friend heard the initial encounter with Zimmerman over the phone, and her account is quite different from his. Second, there is the 911 recording of someone yelling for help, which stops immediately after the shot was fired. If it can be proved using forensic auditory analysis that the person yelling for help is not Zimmerman, then he will be caught in a lie, and no one is likely to believe the rest of his story.
I would say “hear hear” but my mind apparently is stuck on “inherently, inherently”. I appreciate your analysis. I guess I am not the only one stuck on the question of whether the “profiling” poorly suggested meets muster for 2nd degree murder where there is little certainty about the actual confrontation that ensued. Evidence of the confrontation would be Zimmerman’s burden. The tapes do give some evidence of a state of mind. Whether it is evidence of prima facie depravity is as you suggest not so clear. I think the State’s use of the term “profiling” is regrettable in that it needlessly confuses matters. I suspect it is the standard practice on the appearance before the magistrate at this phase, but it is interesting to me that I have seen no order from the Magistrate where any clear finding of facts and concusions of law are made letting us know the particulars of his conclusion of probable cause and showing that he did in fact engage in a factual analysis. As a jurisprudential matter the lack of such particular findings is troubling.
@JThomason: Hahaha, I know the feeling but, from what I have been able to ascertain, the magistrate received the affidavit and request for arrest warrant (they kind of anachronistically call it a “capias request”) ex-parte (like any normal search warrant/arrest warrant), but by reviewing it and signing off, gave it the imprimitur of court sanction. I hope I have missed something and there is either preliminary hearing or other analogous process available for a defendant to meaningfully challenge this junk.
And, just in case somebody who doesn’t know me over the years wanders in and thinks I am cheering for Zimmerman, I am not. But I have done a lot of criminal defense, and I am very oriented toward a fair process and a defendant, any defendant, being given the general constitutional and procedural presumptions one accused of a serious crime is entitled to. I have represented people that make Zimmerman look like Snow White. Some of them quite guilty, some of them quite innocent. They should all get the fair process contemplated.
@bmaz: Did you ever see the link I sent you re: a former head of the ABA writing the White House because he thought Corey wasn’t up to her job?
@Phil Perspective: what the fuck is “writing the White House” gonna do? If that is what the ABA is up to, they are too fucking stupid to exist on this planet. Seriously. This is a state case, and there is no racial animus requisite for a CRD involvement established to date. Good god, what fucking stupidity by the ABA, if true.
@bmaz: I think the differences between AZ and FL practice are probably decisive here. After Corey’s announcement, some commenters were saying that the probable cause document lacked specifics, but that didn’t matter because Corey could fill in later. Or something to that effect. Anyway, I would guess that Corey knows FL law and practice better than you do. I had a good impression of her announcement, and yes, it’s probably true that it was political, but heck, the situation is piled high with politics already. I think she was trying to address the community, as well as the lawyers and judges.
At any rate, one interesting tidbit to me is that if the “Stand your ground” law is brought into the case, it will have to be my Zimmerman, and he will have to prove that it applies. He can’t just assert it. I’m pretty sure that the prosecution thinks that it will be easy to tear that to shreds.
Corey does not seem to me to be the type who would put up a sloppy case so that it could be easily lost, allowing Zimmerman to walk. But we’ll see. I’ve been wrong before.
Bob in AZ
Yes but who lobbied for what during that week? I bet the drafting was done in the last two hours before going to the judge. And one has to feel that in Florida the one thing Zimmerman will assuredly get is a full hearing. That being so the production of a rubbish affidavit might suggest not an attempt to railroad Zimmerman as you seem to fear but rather to create something so awful just so they can be sure they’lll be able to say we tried to get him and failed.
And on my earlier panic point it’s the same the world over. Does the name Mark Duggan ring any bells?
@chetnolian: But, see, all the state needed to do was to charge the best count they could. I simply do not believe this special prosecutor team is this incompetent. I think they knew they only had evidence to support manslaughter and/or negligent homicide. But intentionally overcharged, with a crime that they knew they could cravenly get through the initial ex-parte gate and that would pose the possibility of a life sentence and no bond to the defendant, Zimmerman. I think it was, at least from what I have seen, a craven play to leverage harshness on him to extract a lesser plea and look like they did something. Well, sorry, that is bullshit.
I think the case of Trayvon Martin is about much more than just racial prejudice.
It is resonating with Americans of all stripes because clearly some are above the law while most of us ordinary folks are not – and we’re stuck paying the taxes too. Zimmerman was above, and Martin below – and that was further sanctioned by the cops who essentially backed Zimmerman.
@Bob Schacht: Hmmm. My counterpoint would be that Corey looked like a completely glib an pandering twit in her press conference with the way she bizarrely smiled, seemed to enjoy her instant fame, pandered incessantly to “victims” and couched the whole pile of fucking shit in terms of “praying” and religion.
Bob, please, I have been as kind to this shithole prosecution as I can. Do not forget that Corey is an elected official, with a spotty record for due process rights afforded defendants, and who is enough of a political hack ally of the completely craven wingnut Florida Governor Rick Scott who, by the way, rates a “bullseye” rating of excellence by the NRA, and who was a HUGE backer of Florida’s Stand Your Ground law and the NRA is HUGE behind Zimmerman. Yes, Corey may have more experience in Florida prosecutions than I do; however, I have been doing criminal defense at a high level for decades and have none of the craven political interests that Corey does. Also I know a couple of fairly significant criminal trial attorneys in Florida through NACDL and they agree with me completely.
We shall see. Based on what I have seen so far, and it is everything I could get my hands on through the press AND what I could discern behind the scenes, I feel very comfortable with what I have said. VERY. Now, maybe the state will do the duty they have been under from the start and actually support their work in the future, but it sure as hell has not happened to date.
“Do not forget that Corey is an elected official, with a spotty record for due process rights afforded defendants”
Sounds like excellent qualifications for an Obama administration position, then again Zimmerman might have an ever better shot at working for Obama with his background in “due process, not judicial process” with Trayvon.
@MLL I don’t think any judge is going to have the guts to throw this case out based on what the media will immediately refer to as “technicalities”. You may as well paint a target on your forehead.
My take on the whole thing is that Angela Corey knows damn well that the police have flubbed this from day 1. She also knows that there’s no way she could NOT charge Zimmerman. My guess is that the reason the affidavit is so bad is because Corey’s team is currently most interested in figuring out just how incompetent the cops were that night and how much of that is going to have to be made public. Spell-checking the affidavit was much lower on her “to do” list.
@bmaz: Kind of like when my ex-wife filed for divorce, she asked for no visitation for me with my son, full alimony, etc. It made me out to be some kind of bad father or something. I was horrified because she had said she wanted to remain friends, but my attorney told me “this is pretty standard filing – they ask for the world hoping you’ll be happy when the end result isn’t this bad.” I was like – no, this is bullshit.
Frankly, the affidavit reads like it could have been composed by posters at any one of the many liberal websites who have tried and convicted Mr. Zimmerman based on opinion and preconceived notions only. Democratic Underground comes to mind. It is rife with suppositions and statements of facts not (apparently) in evidence. All of this makes it look like a prosecutor bowing to political pressure, which is a travesty.
i suspect it is not a question of competence vs incompetence in the law.
it is a question of competence in the law vs competence in politics.
you did say, i think, that the selected prosecutor is elected.
I’d point out that the judge has already ruled that the probable cause affidavit is sufficient, without objection from the defense counsel. You can hear the ruling about one minute into the video at http://www.youtube.com/watch?v=JI836x9laZc
Under Florida procedure, the sole purpose of the probable cause affidavit is to support the arrest; it has no other bearing on the case. The affidavit in this case was probably more detailed than usual — a very bare bones recitation of the basis for the arrest would ordinarily suffice. The only showing that needs to be made is one of “reasonable suspicion” — that is, that there are fact that provide a reason to suspect that Zimmerman may be guilty of second degree murder — not proof beyond a reasonable doubt or even preponderance of evidence.
The presence of unsupported statements or opinions within the affidavit does not undermine the affidavit itself — the question would be whether, if you disregard all of that and only consider those statements of fact that are supported, is that enough to establish probable cause?
For 2nd degree murder under Florida law, that means they need to show:
1) A victim is dead;
2) The death was caused by the act of the defendant;
3) The victim was killed by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
Zimmerman’s admission that he shot Martin, coupled with the statements to the dispatcher using the “assholes” and “punk” statements seem to be enough to establish probable cause for the arrest. I think that some people mistakenly believe that there must be a showing of pre-existing intent to kill, but that an element of 1st degree murder, not 2nd. Obviously the prosecution bears a heavier burden at trial, but they aren’t there yet.
As far as I can tell, under Florida procedure, the probable cause affidavit is not relevant to any further proceedings. It’s just part of the paperwork filed to start the case.
There has been little discussion of the fact that Zimmerman claimed he “got out of his vehicle to read the street sign as he was not certain of where he was”. This is a neighborhood watch wannabe, who has been patrolling the neighborhood for months. I don’t know about anyone else, but it’s been years since I’ve gotten out of my car to try to read a street sign. No one gets out of their car to read a street sign, especially in a neighborhood one is familiar with. Zimmerman’s whole argument rests on the fact that he got out of his vehicle to read the street sign and was attacked from behind as he reurned to his vehicle. I call BULLSHIT as does the prosecutor.
@RtdLaw: Yes, I had seen the reference to probable cause at the initial appearance. It took like all of 5 seconds. Apparently that is all you get under FL Rule 3.133 once it has been signed by a judge. But the affidavit is the back up not just for the arrest, but for the charge as well. Kind of surprising, but that is how it looks. I disagree that Zimmerman’s rhetoric about punks and assholes is sufficient in any way to evidence a “depraved mind”. I only found a few cases that addressed affidavits in Florida, but they seemed to have the same basic requirements as other jurisdictions as to sufficiency. This one simply is not.
Regardless of whether he should have known the address or not, already in his call to the police, Zimmerman says he doesn’t know the address. at about 3 minutes and 25 seconds into the call that is, at about 7:13 pm exactly – less than 4 minutes before Trayvon Martin is fatally shot – Zimmerman is asked at what address he’s parked in front of, and he says: “I don’t know. It’s a cut-through so I don’t know the address”
At 7:13:16 the dispatcher suggests that he meet the police at the mailboxes, and Zimmerman agrees, but then right before the call ends, at about 7:13:41, Zimmerman changes his mind and says instead that the police should call him and he’ll tell them where he is.
This is more than a minute after he had stopped chasing after Trayvon Martin – he had lost track of where he is (although possibly he’s still curious and wants to know) At about 7:13:14 he tells the dispatcher he doesn’t want to give out his whole home address because “I don’t know where this kid is.”
A gunshot is fired sometimes before 7:17:11, after a struggle that lasted at least one minute. That is, it began before 7:16:00, probably a bit earlier. The call ended at 7:13:41, after 4 minutes and 7 seconds.
Correction: The call ends at 7:13:41 but Zimmerman changes his mind at 7:13:23 The dispatcher does not change the destination for the police car(s) , which is still the first address George Zimmerman gave: 1111 Retreat View Circle, but says he’ll tell them to call him when they are in the area.
However, by the time Officer Timothy Smith arrives at 7:17:11, there is already a report of shots fired nearby – possibly at 1231 Twin Trees Lane, ad he proceeds there. As he proceeds there, he’s told there is somebody laying in the grass between 1221 Twin Trees Lane and 2831 Retreat View Circle.
He finds a man standing, asks him if he had seen the subject who might have been shot and Zimmerman says he shot the subject and Smith disarms him. When a second policeman arrives, he notices the man laying face down on the grass. Officer Smith tells Officer Ricardo Ayala that he hasn’t taken a look at the man on the ground, or maybe not even spotted him yet, and Officer Ricardo Ayala examines him and attempts to get a response, which is negative. Then a third policeman arrives and fails to detect a pulse, and they begin CPR.
@Sammy Finkelman: Where are you getting these details from? Do you have a copy of the departmental report?
Yahoo has this posted on their site and they have a pdf file of the police report of the incident.
After reading the report, it looks like the officers did their job but people are never satisfied after the media has turned this into a race issue. Its lame that our country is still stuck in the the pre-civil rights era mentality.
A lot of people think that Martin double backed and confronted Zimmerman.
from the police department 911 calls released.
So there are 2 minutes on the Zimmerman 911 call after he reports Martin running and before the call ends.
There are 45 seconds of “help help” on this 911 call before the shot fired.
Zimmerman shoots Martin about 500 feet from the clubhouse.
@bmaz: I think you misunderstood me. It wasn’t the ABA, just a former national head. He wrote the WH saying that, basically, Corey was/is an incompetent clown show. And this was 2 or 3 years ago. Maybe he should have written the DOJ instead of the WH. All I can go off of is what the newspaper article said.
Phil, you’re referring to the D’Alemberte letter? It would help to say that D’Alemberte wrote the White House Counsel in 2009 to recommend that Obama appoint Corey’s former boss as U.S. Attorney for the Middle District of Florida.
Sandy D’Alemberte – an FSU law professor and former FSU president as well as a former ABA president – did not name Corey in the one-page letter, but gave enough particulars for her to be identified. She had been elected state attorney in Duval County (Jacksonville) at the same time Mark Shirk was elected public defender there, and D’Alemberte found them both to have “shown no enthusiasm for defending citizens.”
He stated that appointing Shorstein chief prosecutor for the federal courts that serve Duval County (as well as Tampa and Orlando) would protect civil rights and ensure against “a slide into lawless behavior.” He was not trying to prompt a federal intervention in the election of a local official or filing a complaint against Corey.
Not in the letter, but in news coverage: Shorstein had been state attorney in Duval County, had had conflicts with Corey when she worked for him, and when he retired, she ran for his former position and won. Obama appointed Robert O’Neill to the U.S. Attorney post instead of Shorstein.
The letter can be downloaded here: http://miamiherald.typepad.com/nakedpolitics/2012/03/lawyer-chastised-special-prosecutor-in-trayvon-case-civil-rightsare-at-real-risk.html
@TG: Thanks TG. Corey is known for being rather inflexible with the accused from what I hear, but is very good on “victim’s rights” (which usually screw defendants pretty well too).
In all of the discussion above, it seems bmaz’s point is still extant, it may fall apart for a murder-2 IF it is necessary for a proper conviction at trial. His reading and NACDL corroboration seem to argue that it is necessary.
Given the railroad that is FL justice when it wants to be [i.e. the foreclosure rocket dockets, among several other as and more serious examples], perhaps this isn’t intended to die at trial, but on appeal, where things like this paperwork get much closer inspection and the “we tried” political defense would be more effective. O’Mara is sure to raise this at some point in the trial, and if he doesn’t it’s a gift wrapped “incompetent attorney” appeal. Perhaps bmaz can bounce this idea off of the NACDL contacts.
bmaz, any LE professional that has actually written pc affidavits can see that the Zimmerman arrest affidavit didn’t even establish reasonable suspicion. It makes no sense whatsoever that two so called top gun veteran homicide investigators would do such damage to their reputations in such an immensely high profile case by leaving out probable cause in the arrest affidavit after a month long investigation. The only logical explanation is that they were told to come up with something, they gave it their best shot, and the unethical affidavit was the best they could do. It is a shame O’Steen and Gilbreath chose to compromise their integrity for the sake of political expediency.
@KWillow: Hhhmmm, Republicans are forcing minorities, and by minorities you mean blacks because I haven’t heard of a Asian riot in the U.S., and benefiting from those riots. What does that say about minorities that they can so easily be manipulated by Republicans?
@GulfCoastPirate: No, there is a good chance there would be no blood evidence on Zimmerman. It all depends on how much clothing Marin was wearing, how his body reacted, how fast it reacted, e.g. how and how fast did he fall to the ground. It appears that you might watch too much TV and movies with all their instantaneous high visability bloody reaction to bullet wounds.
Most blood from a gun shot wound comes out after the body hits the ground or if the person shot remains standing or moves, appears because the heart is beating vigorously. It appears Martin died quickly, which would also account for little blood loss.
@Federale: Yeah, I dunno about that part, although kind of agree with your previous comment. The apparent allegation is that Martin was on top of Zimmerman and the fear was further pounding. That would certainly be a close enough proximity to expect t least trace blood spatter, if not more (and gun powder residue patterns. Not all the crap you see on CSI is that far fetched; we have been using blood splatter evidence and powder tracing for decades, and doing so quite successfully.
Yes I have a copy of the departmental report. It was on the Sanford.gov website until it removed on April 6 at the request of the special prosecutor along with the Zimmerman call to the police and the 911 calls, and other evidence. However these are not copyrighted, and not confidential any more and are on the web. The calls are many places. I found a Google search for Twin Lakes Shooting Initial Report pdf (the name of the file) showed it is in some places. Some look like copies of acopies, but this one looks very good:
is better (not a copy of a copy)
This was hand copied – I could not cut and poaste from that PDf file)
Second report filed at 3:29 am Feb 27 2012 by Timothy Smith – the first policeman who arrived at the scene of the shooting:
On 2/26/2012 at approximately 1700 hours, I responded to 1111 Retreat
View Cir in reference to a report of a suspicious person. As I arived
on scene, dispatch advised of a report of shots being fired in the
I was advised by dispatch that the report of shots fired was possibly
coming from 1231 Twin Trees Ln., I was then advised, after receiving
multiple calls, that there was a subject laying in the grass between
the residences of 1231 Twin Trees Ln. and 2821 Retreat View Cir. I
responded to 2821 Retreat View Cir and exited my marked Sanford
police vehicle and began to canvas the area. As I walked in between
the buildings I observed a white male, wearing a red jacket and
blue jeans. I observed a black male, wearing a gray hooded sweat
shirt laying face down in the grass.
I asked the subject in the red jacket, later identified as George
Zimmerman (who was the original caller for the suspicious person
complaint), if he had seen the subject. Zimmerman stated that he
had shot the subject and he was still armed. Zimmerman complied
with all my verbal commands and was secured in handcuffs. Located
on the inside of Zimmerman’s waist band, I removed a black Kel Tek
9mm PF9 semi automatic handgun and holster. While I was in such close
contact with Zimmerman, I could observe that his back appeared to be
wet and was covered in grass, as if he had been laying on his back
on the ground. Zimmerman was also bleeding from the nose and the back
of his head.
Shortly after securing Zimmerman, Office Ricardo Ayala arrived on
scene. I advised Officer Ayala. I advised Officer Ayala that I had
not made contact with the black male subject. I observed Officer
Ayala make contact with the subject and attempt to get a response,
but was met with negative results. Shortly after this, other officers
began to arrive on scene along with SFD Rescue 38 who began to give
aid to the subject laying on the ground.
Zimmerman was placed in the rear of my police vehicle and was given
first aid by the SFD. While the SFD was attending to Zimmerman, I
over heard him state “I was yelling for someone to help me, but no
one would help me.” At no point did I question Zimmerman about the
incident that had taken place. Once Zimmerman was cleared by the SFD,
he was transported to the Sanford Police Department.
Zimmerman was placed in an interview room at SPD, where he was
interviewed by investigator D. Singleton. Zimmerman was turned
over to investigations and this was the extent of my involvement
in this case.
Printed on 3/6/2012 13:45
The log of 911 calls (also now gone from the Sanford website) indicated Tiimothy Smoth arrived at the first location at 7:17:11. This was less than half a minute from the shooting.
This is the police report filed by the second responding police officer
(not the one who was first on the scene) at 2:27 AM Monday, February 27,
On 2/26/12, at approximately 1917 hours, I was dispatched to 1111
Retreat View Cir in reference to a complainant seeing a suspicious
person in the area. While en route the dispatch stated the [sic] they were receiving calls in reference to gun shots being heard in the area I was responding to.
Ofc. T. Smith stated via radio he was arriving in the area. Ofc. T. Smith later states that there was one subject shot and he had one at gun point.
Upon arrival Ofc. T. Smith had a white male, later identified as George
Zimmerman, in custody. Zimmerman was also the original caller in
reference to the suspicious person.
I then noticed that there was, what appeared to be a black male wearing
a gray sweater, blue jeans, and white/red sneakers laying face down on
the ground. The black male had his hands underneath his body. I attempted to get a response from the black male,but was met with negative results. At that time Sgt. Raimondo arrived and attempted to get a pulse on the black male but none was found. At that time, Sgt. Raimondo and I turned the black male over and began CPR.. Sgt. Raimondo did breaths and I did chest compressions.
Sgt. S. McCoy arrived on scene and releived me continuing compressions..
Sanford Fire Rescue arrived on scene and attempted to revive the subject, but could not. Paramedic Brady pronounced the subject deceased at 1930 hours.
The scene was then secured with crime scene tape by Ofc. Mead and Ofc.
Wagner. Ofc. Robertson began a crime scene contamination log.
Lt. Taylor arrived on scene and notified dispatch to have Major Crimes
respond to the scene.
Ofc. Mead and Ofc. Wagner were able to make contact with neighbors in
the area. They were able to obtain statements from all witnesses on
The scene was turned over to SPD Major Crimes.
One thing that keeps bugging me is that if the police reports above are correct, and Sanford Police observed injuries to Zimmerman and Sanford Fire Rescue treated those injuries, shouldn’t someone have taken photos of them? This was a crime scene with a person dead from a gunshot wound. That seems like basic evidence-gathering that should be standard procedure if only to prevent legal claims against the city later.
On a related note, I wonder whether there is an audio track for the surveillance tape at Sanford PD when Zimmerman was dropped off. Just what did the officer say when he looked at Zimmerman’s back?
I made a copy of the report I saw on 3/30/12 and posted it here
I don’t have time now, but it might be interesting to check if it matches what you saw.
It’s still on the ProPublica web site, here
@Sammy Finkelman: one thing: Smith put the time at “[…] approximately 1917 hours […]” in both pdfs, not 1700.
Smith was the first responding officer, but the second listed in the pdf.
@bmaz: There should be alot of powder residue on both, but given the amount of clothing that Martin wore, not much blood splatter. But I don’t believe that Zimmerman had his clothing taken as evidence, so either way there is little or no chance to find out. But if you think there would be blood splatter, as opposed to just blood dripping off Martin, then a close proximity gunshot wound would produce as much splatter if Zimmerman was on top.
But also remember, it is the gasses as much as the bullet that does damage with a contact gunshot wound and the force of the gasses mitigates against splatter. Especially given the small 9mm caliber.
Did the bullet penetrate through and through Martin? If it did, the conclusion would have been obvious for either position.
@James Todd: Your problem is that 2 witnesses say it was Zimmerman crying for help.
@Federale: I agree they would be present irrespective of the relative up or down positioning. I do not believe there was a through and through, although to be fair, that is far from clear. His clothing had to be taken into evidence; if it was not, the investigation is going to be crucified – and rightly so.
@Federale: Interesting – thanks.
One thing I missed in transcribing Officer Ayala’s [2nd responding officer] Report [at the end]:
Pages 1-3 [pages pdf 1-4] of the ProPublica pdf are not shown on the Amazon pdf. They are printed on 2/28/2012 between 11:38 and11:42.
This part of the report contains only Officer Ayala’s description of events.
In this report the # Offenses is 01 and # of victims, offenders and arrested are all listed as 00. [pdf 1 of 8]
Signal Code is 601U
ProPublica pdf pages 5-8 are printed on 3/6/2012 at13:45.