Trayvon Martin

Failing Our Hoodies

[photo: Harlequeen via Flickr]

[photo: Harlequeen via Flickr]

Some of you may have been at Netroots Nation this summer, along with Team Emptywheel. I couldn’t go this year.

I stayed home because my teen son needs more parental guidance right now.

My once-sunny 15-and-a-half year-old who carried As and Bs all through grades K-8 suddenly became a difficult student. He failed a class one term, earned a C in another class; he might have done worse in other classes had I not leveraged threats ranging from dropping sports to elimination of all electronics. He’s going to have to re-take the failed class.

Girls discovered him. I don’t think it was the other way around, having accidentally come across text messages. He began to talk with one girl on a regular basis, bleeding his heart out to her about all the conflicts he used to discuss with me. In her he found a personal fan club; she patted his back about the crap hormonally-overloaded teen boys do to each other, as well as the horrors a “tiger mother” inflicted on her child, especially a parent whose partner is away from home a lot due to the demands of their job. You can imagine some of the dialog:

HE: OMG she made me study all eve i hate her

SHE: poor thing i feel so sorry for you come over and we’ll watch movies

At the same time, my son was burning his candle at both ends. He ran 30 or more miles a week with the cross-country team, attended at least two meets a week, while juggling advanced classes and the girlfriend. It was just too much for him.

Add dramatic growth spurts to this picture; he shot up nearly eight inches inside a year’s time, completely messing with his classmates’ and teachers’ perceptions of him.

I expected the separation between parent and child; distancing is a necessary part of growing up. But the failed grades and a sketchy first-time relationship? Nope. I have to double-down on supervision before he becomes an even more difficult high school sophomore.

He gets moody, takes off and hides out, cellphone in hand at all hours. The moodiness bugs me all to hell; he’s far worse than his older sister ever was. But this is another contributing factor. His sister left for college this year and now all the attention at school and home is on his back with laser-like focus. Because of his track record I need to watch him closely, but appear not to do so at the same time. It’s utterly crazy-making for both of us.

In spite of the painful occasional I-don’t-want-to/Yes-you-are-right-now screaming matches, I’ll be here. I’ll protect him as I guide him, with the help of his teachers and coaches. He may tower over me at nearly six feet, but his brain and nervous system have not caught up. I’m sure his IQ suffered on occasion, mirroring results of studies on teen growth. His frequent clumsiness and poor choices attest to ongoing changes (i.e., not studying, playing video games into the wee hours, eating a half-gallon of ice cream in one sitting, so on). He needs me here to make sure he makes it through this last leg of the marathon from birth to adulthood. Just three or four more years of vigilance and he’ll be ready to take on most adult functions by himself.

You’ve got the picture now: pouty, moody, and alone, roaming the neighborhood in the evening, sweatshirt hood up while he’s on his cellphone with his girlfriend. My son is not unlike Trayvon Martin.

Which is why I am absolutely horrified and appalled about the Zimmerman-Martin case.

Who and what was George Zimmerman protecting? Continue reading

Uncomfortable Truth: The State Of Evidence in the George Zimmerman Prosecution

I have said this from the get go: In the case of State of Florida v. George Zimmerman, under the actual facts of the case from the State of Florida’s own disclosure, as opposed to hype from Benjamin Crump and his public relations team, who have self interest from representation of family members in a civil damages case, not to mention well meaning, even if uninformed, mass and liberal media, there has never been a good factual rebuttal to George Zimmerman’s own account of self defense. You know why? Because there is not any compelling rebuttal within the facts as adduced in the investigation and entered in the record at trial. And the presumption of innocence and burden of proof in the American criminal justice system still mean something.

Yes, I know what I am saying runs counter to the popular meme and what people emotionally feel and want to hear. But everything I have noted from the start of this case has been borne out in the trial evidence and resulting posture as the case heads to closing arguments and to the jury for deliberation.

Did you know that powerful local mayoral office politicians involved themselves, by meeting with only the victim’s family and their attorneys, in an improper ex-parte manner, to go over the most critical evidence during the early stages of the investigation and before said Martin family members’ statements were relied on to file charges? I bet you did not, but that has been the testimony in the trial record.

Did any of you see the young female neighborhood homeowner, Olivia Bertalan, that testified Wednesday as to the crime spree that was ongoing in her and Zimmerman’s neighborhood, Retreat at Twin Lakes, including the home invasion where she and her child were victims of one or more home invaders, and who was effusive in her praise for the concern of the neighborhood watch program and George Zimmerman? Did you know that, thanks in part to the actions of Zimmerman and his wife, the juvenile suspect was caught and sentenced as an adult by this same judge, Debra Nelson, to five years in prison? Probably not is my guess. But that, too, is the evidence.

Did any of you see the other neighbors, of all races, in Retreat at Twin Lakes who testified on Zimmerman’s behalf about the the facts of the case, that Trayvon Martin was the aggressor on top of Zimmerman when the shooting occurred, and the crime afflicting the neighborhood and the need for the neighborhood watch program? My guess is you did not. But that, too, is part of the evidence in the trial record.

Did any of you see the parade of witnesses that laid the foundation for the fact Trayvon Martin was the aggressor in the actual critical physical encounter between him and Zimmerman, and was on top of Zimmerman, and beating Zimmerman, both moments before, and at the time of, the key gun shot? And supported by both the case detectives and one of the foremost expert pathologists, Dr. Vincent di Maio, in the world? My guess is you did not. But that, too, is in the trial record as hard evidence.

Yes, all of those facts are exactly what was testified to in open court. Most of the witnesses were literally the state’s own witnesses, including the two main case detectives, Detective Chris Serino and Detective Doris Singleton. Did you know that the state’s own veteran case detectives, Serino and Singleton, testified they believed George Zimmerman and thought his version of the facts consistent and credible? My guess is you don’t know that. Yet all of that is exactly what the sworn testimony has been in open court.

LadyJusticeScalesDid you know that the state, by and through Angela Corey, relentlessly engaged in Brady violations with regard to discovery and evidence disclosure and that, as a result, discovery and depositions thereon have been ongoing even during the trial, all to the detriment to, and prejudice of, Defendant Zimmerman? My guess is you did not, but that too is part of the record.

In spite of all of the above, the political, and cravenly so, prosecution may still tug on enough emotional and falsely racial heartstrings to wrongfully convict Zimmerman. Almost surely there will be no conviction of the always wrongfully charged 2nd degree murder charge; but the possibly of a flawed compromise verdict to a lesser included charge of manslaughter, battery, or other lesser included offense, is very real. If so, it will, despite all the emotions of this case, be a tragedy of justice.

No matter what you think of George Zimmerman personally, the rule of law should militate in favor of an acquittal. Yes, if the burden of proof in the American criminal justice system is truly “beyond a reasonable doubt”, and if there really exists a common law right to “self defense”, then acquittal is exactly what the verdict should be, and must be.

I have no affinity for George Zimmerman. Frankly he strikes me as a hapless dope. Under no circumstances do I support George Zimmerman, or anybody else, wandering around with concealed carry, locked and loaded, firearms on neighborhood patrol (even though he was not on patrol, but only on his way to Target for family shopping). It is a tragic event waiting to happen and nowhere close to what the founders had in mind with regard to the Second Amendment. But my, and your, beliefs are not the law of the land either in Florida or anywhere else in the United States under District of Columbia v. Heller. And that is the law of the land, both for the Zimmerman case at bar, and and all others elsewhere.

We shall see how willing to follow the law the jury will be, and what their verdict is. But this case is not now, and NEVER has been, about what has been pitched and portrayed in the media. Never. It is not about racial prejudice and profiling (and the DOJ Civil Rights Division so found), and it is not about murder. It is about a tragic and unnecessary death, but one that is not a felony crime, despite all the sturm and drang.

State of Florida v. Zimmerman is a straight up traditional self defense case. It has never been pled as a Stand Your Ground defense case, irrespective of all the press coverage, attention and attribution to Stand Your Ground. It’s never been Stand Your Ground, and certainly is not now that the evidence is all in on the trial record. It is a straight self defense justification defense, one that would be pretty much the same under the law of any state in the union including that which you are in, and that I am in, now (so don’t blame “Florida law”).

There is nothing whatsoever unique in the self defense posture that has been effected in this case. Nothing. And it is, whether it is comfortable or not, a compelling self defense case. Actually, let us be honest: It is not comfortable. Not even close. But no matter how uncomfortable it is to say, Zimmerman needs to walk, because the self defense case is strong. The burden of proof in the instructions to the jury will read that not only is there a general presumption of innocence afforded Zimmerman but, moreover, the state must also prove beyond a reasonable doubt that Zimmerman did NOT act in self defense. Under the facts as adduced in the trial record that ought be, by all rights, an impossible burden for the jury to get past, whether on the pending count of 2nd degree depraved murder or any possible lesser included charge given to the jury.

The facts, the rule of law, and the constitutional burdens of proof compel an acquittal. Uncomfortable to hear; yes, it is. Necessary for an acquittal to occur; also, yes it is.

[UPDATE: Just a couple of quick notes. First off, the jury instructions: Judge Nelson accepted a lesser included for standard voluntary act manslaughter under FLRS 782.02(1). Nelson, thankfully, denied the wild request by the state to give a third degree murder instruction based on child abuse. It was a ridiculous attempt by the state and would have provided fertile ground for an allegation of reversible error had there been a conviction. So, the jury will deliberate only on the 2nd degree murder and the lesser included manslaughter charges, which is how it should be.

Prosecutor gave a long closing argument this afternoon. Parts of it were pretty good, parts fairly diffuse and rambling. Overall competent though, and he will still have a rebuttal after the defense closing tomorrow by Mark O’Mara.

Whitlock, Costas Bravely Point to Role of Guns in Perkins, Belcher Tragedy

[youtube]http://www.youtube.com/watch?v=B1ijkccD9_8[/youtube]

In a disgusting demonstration that for the NFL, money dictates that “The Show Must Go On”, the NFL never considered those who, like Dave Zirin, found it astounding that the NFL would encourage the Kansas City Chiefs to go ahead with their game barely 24 hours after Chiefs Coach Romeo Crennel and other Chiefs personnel witnessed Jovan Belcher kill himself with a handgun shortly after he had murdered his girlfriend, the mother of their three month old son daughter. Zirin tweeted throughout the day on the coverage provided by the various networks as they continued broadcasting games, mostly as if the event had never happened.

But then, just at the close of halftime in the nationally televised Sunday night game on NBC, Bob Costas took the microphone for the minute and a half you see in the YouTube above. Costas started by slamming the cliche that the playing of the game somehow began the “healing” process for those affected by the tragedy, giving voice to the sentiment Zirin had stated earlier. But then Costas moved on to confront an even bigger taboo in the national debate, as he quoted this powerful column by Jason Whitlock, who dared to point out the way that our national sickness relating to guns contributed to this tragedy. From Whitlock:

I would argue that your rationalizations speak to how numb we are in this society to gun violence and murder. We’ve come to accept our insanity. We’d prefer to avoid seriously reflecting upon the absurdity of the prevailing notion that the second amendment somehow enhances our liberty rather than threatens it.

How many young people have to die senselessly? How many lives have to be ruined before we realize the right to bear arms doesn’t protect us from a government equipped with stealth bombers, predator drones, tanks and nuclear weapons?

Our current gun culture simply ensures that more and more domestic disputes will end in the ultimate tragedy, and that more convenience-store confrontations over loud music coming from a car will leave more teenage boys bloodied and dead.

In the coming days, Belcher’s actions will be analyzed through the lens of concussions and head injuries. Who knows? Maybe brain damage triggered his violent overreaction to a fight with his girlfriend. What I believe is, if he didn’t possess/own a gun, he and Kasandra Perkins would both be alive today.

Whitlock deftly destroys so many of the false narratives that our society has forced upon it regarding guns. As he states, this tragedy demonstrates that the second amendment actually threatens our liberty rather than protecting it. He goes on to state that although the second amendment is regarded by many as the last refuge by citizens against a government turned tyrannical, mere guns won’t protect against a determined government armed with “stealth bombers, predator drones, tanks and nuclear weapons”. Whitlock cleanly demonstrates that the pervasive nature of guns in our sickened society is what enables so many senseless deaths, pointing out that both Perkins and Belcher likely would still be alive if a gun had not been available during Belcher’s moment of extreme rage. Whitlock also alluded to the tragic murder of Jordan Davis in Jacksonville, Florida recently in a case that appears to possibly be headed once again into an inovcation of Florida’s “Stand Your Ground” law that many see as a license for murder.

Whitlock went directly in the face of the cliche, often pointed out by David Waldman on Twitter, that the immediate aftermath of a tragedy of this magnitude is “too soon” to enter into a discussion on the perils of society’s glorification of guns. Others would say that public discussion of guns on a rational basis is no longer possible because of the overwhelming power of the NRA.

The fact is, it is never “too soon” to discuss the role of guns in tragedies because the tragedies come at us so quickly that we would otherwise always be in the quiet period after one gun tragedy or another. But even more importantly, the myth of the power of the NRA has been completely destroyed. In the 2012 elections, Media Matters informs us that the NRA spent just under $12 million but only 0.42 percent of those funds supported winning candidates and only 0.39 percent opposed losing candidates.

Just as the latest round of elections and the current Kabuki over the “fiscal cliff” is poking a hole in Grover Norquist’s power over preventing tax increases, our society may actually be moving toward a more rational discussion on the sickness inherent in our gun culture. I don’t harbor any illusions that progress will be fast or that substantive improvements are even still possible, but if changes do finally take place, we may be able to point to the courage shown by Bob Costas last night as the turning point when we finally started a long overdue discussion.

Appeals Court Grants Zimmerman Judge Disqualification Motion

I have long maintained the George Zimmerman criminal case ongoing in Florida, and the nature of Florida law and procedure, is far different than most in the media and blogosphere understand. The initial investigation was not particularly “botched” at all, the actual known facts and statements do not indicate particular racial animus on Zimmerman’s part, the known facts and statements relating to the actual physical “confrontation” are far different than generally painted and arguably do indicate Martin was the aggressor, and Florida law is rather, shall we say, unique in many regards.

One of the areas I have delved into, although not here, is the disqualification motion made by Zimmerman defense attorney Mark O’Mara. The motion was aimed at Judge Lester and, go figure, was denied by him. But O’Mara appealed via a Writ of Prohibition and, what do you know, the Florida Court of Appeals For The Fifth District just granted the writ and ordered Judge Lester to recuse himself:

George Zimmerman petitions for issuance of a writ of prohibition. This is the proper mechanism for challenging the denial of a motion to disqualify a trial judge. See, e.g., Lusskin v. State, 717 So. 2d 1076, 1077 (Fla. 4th DCA 1998). Reviewing the matter de novo, see R.M.C. v. D.C., 77 So. 3d 234, 236 (Fla. 1st DCA 2012), we grant the petition.

Florida Rule of Judicial Administration 2.330 requires a trial judge to grant a motion to disqualify without determining the accuracy of the allegations in the motion, so long as the motion is “legally sufficient.” R.M.C., 77 So. 3d at 236. “A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a well- founded fear of not receiving a fair and impartial trial.” Id. (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)). Although many of the allegations in Zimmerman’s motion, standing alone, do not meet the legal sufficiency test,1 and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency. Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

It was not unanimous, but was, rather, a 2-1 decision. The State of Florida, now operating for appellate purposes, through AG Pam Biondi’s office, may well file a petition for review with the Florida Supreme Court, we shall see.

Here is what I said in another forum on July 16th, just after the original motion to disqualify was lodged:

It is a Florida case and, yes, their law is a bit different. But what Lester has done would be outrageous in any jurisdiction. Denial of a defendant’s due process right to be present for a non-emergency bond revocation is a denial of due process anywhere, even in New York I would hope.

That said, in most jurisdictions, including here [where I practice], I think this motion to disqualify would not stand a great chance of success, although I certainly would file it for tactical purposes and to make a record of objection to the court’s conduct.

In Florida, however, there is a very good chance the motion is granted. Indeed, there is an argument it MUST be granted.
Fla. R. Jud. Admin. 2.330 (2012):

(f) Determination–Initial Motion. –The judge against whom aninitial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.

That is exactly the subsection O’Mara filed under and, although there was a previous disqualification of a judge in this case, it was under a different subsection. The burden in FL, believe it or not, is whether or not the defendant – Zimmerman himself – believes the judge will not be fair and impartial. That sure as hell is not the standard here [where I practice], but it is there, and it is very easily made in Zimmerman’s case due to the gratuitous editorializing done by Judge Lester. If Lester is so impertinent as to refuse the motion, I think it would be appealed and reversed.

I have delved rather deeply into the Zimmerman fact set and, as I said above, it really is quite a Continue reading

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

What Zimmerman’s Charge Means (Or Doesn’t)

Well, okay, the press conference by Angela Corey is over. Let us be clear, it was the performance of a politician and, not necessarily that of a grounded and by the book prosecutor. Seriously.

First off, Ms. Corey talked in repeated and continued platitudes and never, at any point, identified what the exact charge she was prosecuting Zimmerman under, nor her basis for doing so.

This is important to me, and the discussion herein at this blog, because 1) we are intelligent and actually care about such specifics, but 2) It is really important in a publicly and hotly contested case such as the Zimmerman shooting homicide of Trayvon Martin.

I stand by everything said in my preliminary post today as to why the path, via information filed and prelim process is not only appropriate, but absolutely smart. That still stands.

The only issue, at this point, is the actual charging of the criminal defendant, in this case George Zimmerman. Here is the SOLE charge filed by Angela Corey against George Zimmerman:

COUNT 1: IN THE COUNTY OF SEMINOLE, STATE OF FLORIDA, On February 26, 2012, GEORGE ZIMMERMAN, did unlawfully and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill TRAYVON MARTIN, a human being under the age of eighteen, by shooting the said victim, and during the commission of the aforementioned Second Degree Murder, the said GEORGE ZIMMERMAN did carry, display, use, threaten to use or attempt to use or attempt to use a firearm and did actually possess and discharge a firearm and as a result of the discharge, death or great bodily harm was inflicted upon any person, contrary to the provisions of Sections 782.04(2), 775.08(1) and 775.087(2), Florida Statutes.

That would be 2nd degree murder, as charged. Under what actual section of the pertinent Florida statute are we talking? Well, 782.04(2), 775.08(1) and 775.087(2). does that really tell you where and how the state is proceeding? No. Not to my eye, it does not. Take a look, if you can see the specific, definable, path to charge, then you are a better man and lawyer than I. If you can see, maybe, potential, possible, applicability then join the club. But, that is, of course, not the standard.

Here, however, is the manslaughter provision I proffered in the earlier post. I now see legal gadabout Mark Geragos on CNN saying the 2nd degree statute charged may be actually easier to prove up than a manslaughter charge. He is is fucking crazy loopy off his rocker if he really believes that bleating bullshit.

Seriously, I cannot speak as an active criminal prosecutor, but as a defense attorney, bring this on. If my client has to be charged, I would rather he be over charged, especially nebulously and with all the justification defenses available under Florida law, as either described and/or linked, in the earlier post.

So, to sum up, I would say it is a bit batty to charge the HIGHEST POSSIBLE CHARGE IMAGINABLE, and ONLY THE HIGHEST CHARGE IMAGINABLE, with no lesser included backups. But, hey, what me worry Angela Corey?

Yes, I am perplexed at this. Completely. Let the college of internet knowledge school us on why this is wrong.

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.

“Stand Your Ground” Just Tip of Iceberg for Baxley’s Racism, Religious Intolerance and Gun Fetish

Dennis Baxley

The tragic murder of Trayvon Martin has focused attention on Florida’s “Stand Your Ground” law sponsored originally by Representative Dennis Baxley, who is serving for a second time in a district just south of the one in which I reside. Baxley has long been a symbol of all of the wrongs that ultra-conservative Republicans in Florida represent.

During his first time in Florida’s House from 2000 until he was term-limited out in 2007, Baxley distinguished himself with his outright racism:

Baxley is currently a lonely voice opposing efforts to drop the state’s official song, “The Old Folks at Home.”

A compromise eventually revised the lyrics to remove the most offensive portion and added a state anthem. Here is what Baxley didn’t want removed:

Oh! darkeys, how my heart grows weary,

Far from de old folks at home.

As if that were not enough, Baxley had another racist project at the same time:

Baxley is also advocating a new specialty license plate that would showcase the Confederate flag, with proceeds going to a group he belongs to, the Sons of Confederate Veterans.

Baxley, NRA lobbyist Marion Hammer and the NRA teamed with ALEC to spread “Stand Your Ground” to 21 states. But “Stand Your Ground” is just one of several gun bills Baxley has developed. On his website he also touts a bill that ” eliminated the prohibition on firearms in national forests and state parks”. He also sponsored a bill that would have allowed employees to bring their guns to work, but it was defeated in committee in the aftermath of the Virginia Tech shootings.

Baxley’s image among Florida Republicans is that of an upstanding Baptist Sunday School teacher. He even spent his time out of the House leading Florida’s Christian Coalition, a position from which he spoke out in 2008 about Barack Obama’s exposure to Islam when he was younger:

“He’s pretty scary to us,” he said. “I think his Muslim roots and training — while they try to minimize it — it’s there.”

Asked what he meant, Baxley pointed to Obama’s childhood stint in Indonesia and his Muslim relatives.

/snip/

“That concerns me particularly in the period of history we are living in, when there’s an active movement by radical Muslims to occupy us,” Baxley said of Obama’s background. “That whole way of life is all about submission. It concerns me that someone rooted in those beginnings, how it might have affected their outlook. That’s what scary for me.”

Baxley’s fear of Obama’s potential “submission” to Islam is particularly ironic, given his complete submission to a distorted radical Christian fundamentalism and gun worship. Back in 2005, Baxley was especially deranged in trying to help David Horowitz fight against fictional persecution of fundamentalist conservatives in academic settings. In the process, Baxley’s bill would have set academic freedom back immensely (garbled formatting in article left as is): Continue reading

Emptywheel Twitterverse
bmaz @joshgerstein @hbottemiller @ObamaFoodorama Were they screwing or drinking the sushi?
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bmaz @CBSAndrew @MikeSacksEsq Joined; good to see Mike back.
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bmaz And I still maintain Naverette has far greater Constitutional significance than Schuette. It deserves more attention.
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bmaz Here's @ScottGreenfield on why Navarette is such a heinous decision, and why Scalia's dissent is praiseworthy http://t.co/JkFbebz4tC
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bmaz The dragnet too. Getting snitches big FBI goal RT @adamgoldmanwp Lawsuit: FBI using no-fly list to recruit informants http://t.co/TqeLQT8gPO
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bmaz This quote by Guantanamo lead prosecutor Andrea Lockhart is proof of the total farce that are the Gitmo Show Trials https://t.co/NmvPfzWXdZ
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bmaz @carolrosenberg So she has never practiced in federal, state or local courts?
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JimWhiteGNV With Removal of Materials Under CW Agreement Nearly Complete, Concern in Syria Over Chlorine Use http://t.co/FuRNs7bmpT
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bmaz @ScottGreenfield @VolokhC @OrinKerr That will be one of the saddest moves imaginable in the legal blogging community.
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emptywheel Reup: Back Door Searches: One of Two Replacements for the Internet Dragnet? http://t.co/17vCc9ZbRe
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bmaz @michaelwhitney Have you considered meth?
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bmaz @EdgeofSports FYI: A look at Pat Tillman the man, apart from football and Army http://t.co/LHFaQOUS99
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April 2014
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