Probable Cause Affidavit

Zimmerman Bond Revocation & Why Bond Will Likely Be Reinstated

George Zimmerman’s bond was revoked last Friday, June 1, 2012. It created a cacophony of cable and network news, and resulting politicized claims and analysis on both sides of the aisle over the blogosphere. All to be expected; it is what they, and we, do. Thing is, that discussion has been substantially removed from the reality of an actual criminal case in a traditional county level state trial court.

The two grounds reported for the bond revocation were duplicity on number and status of passports surrendered and misrepresentation as to financial status to the court for purposes of, and during, the initial bond hearing.

But the passport issue was a dead herring to begin with and never should have been discussed in terms otherwise. At the hearing Friday, the issue was explained and even the trial judge, Ken Lester, definitively stated that it was not a basis in the least, but rather the revocation was based on perceived financial misrepresentations.

That is fair as there was no substantial basis to the passport issue. Zimmerman gave the superseding passport to O’Mara upon discovering it, when he and his wife were packing to move to an undisclosed location, necessitated by physical violence and death threats. O’Mara avowed to the court he had possession of the passport, and that avowal and the evidence he presented of Zimmerman having Fed-Exed it to him coupled with O’Mara having prepared a motion to submit the document, that was prepared upon receipt from Zimmerman, was accepted by the court. Judge Lester explicitly said the passport was not his concern but, rather, the perceived financial information discrepancy was the basis of revocation.

The real question at this point is whether Zimmerman will again be granted bond, or whether he will remain revoked and remanded to custody pending trial. How the final result on bond plays out depends on how the defense explains and pitches their case. By my calculation, there were exactly two ways that could go. One, admit material blame and, while minimizing, apologize to the court and seek acceptance; or, two, deny any improper conduct and explain and rationalize the conduct. Give some credit to the defense counsel, Mark O’Mara and, yes, the defendant, George Continue reading

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 Continue reading

Emptywheel Twitterverse
bmaz My question at the outset was why GM concealment was not bankruptcy fraud; now that will be litigated. Good. http://t.co/CCL3wm2HYE
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bmaz @trevortimm Be terrified. Very terrified. Cause what you saw is, I think, all you get.
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bmaz @johnson_carrie According to my wife, "impossible jerk" characterizes lawyers in many locales @npratc
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT The constitutional framing is amazingly resilient, but resets are slow.
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT I represent far too many of the former and lament the latter. Things change though
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT Frankly, US can exert such influence, will not be effective foreign prosec either
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT Yes, in these considerations, that is exactly right. Not happening.
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bmaz @HoltenMark @mucha_carlos @ColMorrisDavis @KenDilanianLAT I wasn't being a smart ass, just honest as to situation.
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bmaz @mucha_carlos @ColMorrisDavis @KenDilanianLAT @HoltenMark Safe enough bet; no administration will want to open that can of worms.
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bmaz @mucha_carlos @ColMorrisDavis @KenDilanianLAT @HoltenMark ...ought to give pause in above regards too. If DOJ ever cared about these crimes.
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bmaz @mucha_carlos @ColMorrisDavis @KenDilanianLAT @HoltenMark Well, yes, and the wild expansion of extraterritorial jurisdiction in other cases
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bmaz @ColMorrisDavis @KenDilanianLAT @HoltenMark Granted, what Im saying applies to execution of US nationals as opposed to foreign nationals.
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