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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.

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

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 Read more

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

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 Read more

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

“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): Read more

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.