How Not To Draft A Probable Cause Affidavit

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124 Responses

  1. Scott Jacobs says:

    The biggest hurdle regarding identifying the voice of the person screaming will be "TM's mothers publicly said earlier in the case that it wasn't her son".

    There's also some issues with "many points contradict what the original investigators reported".

    The whole thing reads like a "we wants a certain outcome, so here is what we assume happened in order to reach that decision" pile of crap.

    I'm not even a lawyer, and *I* could do better than they did here

    A whole bunch of FL defense attorneys are saying this whole pile of hot mess won't even get past the judge, who can assert that it was self-defense, and toss the whole thing.

    Then we'll just have to wait for the Feds to file Hate Crime charges against Zimmerman in order for the mob's justice to be done.

  2. Tam says:

    In the NFL, I think this would draw a flag for intentional grounding.

    The way the law stands in Florida right now, the whole case turns on a single piece of information only ever known to two people in the world, half of whom are dead.

    Further, I'll note that when you've lost Dershowitz, you've lost the yuppie intelligentsia.

  3. Scott Jacobs says:

    Yeah, The Dersh seemed… Unimpressed with Corey…

  4. Fred Jones says:

    @scott jacobs: I agree 100% on the affidavit and why it was written. In the end, however, there is good reason to believe that Zimmerman was not innocent. I don't know the florida law on this, but I have taken lots of self defense classes over the years, and we are always taught to retreat whenever you can, except of course if you are in your house. Zimmerman was the one who provoked this incident. In the end Zimmerman might be mostly telling the truth about what happened, but when you follow someone, get in their face, etc. while carrying a gun, in my mind you have greatly contributed to the outcome of what happened. Of course its possible Zimmerman is lying and it did mostly go down the way the lynch mob says it did.

    I don't know. Nobody else does either at this point except Zimmerman.

  5. mojo says:

    "There's never enough time to do it right, but always enough time to do it over."

    I suspect we've got a case of SpecialProsecutoritis going here. Name in the papers, NATIONAL RECOGNITION! and accolades from the prejudiced. Pretty heady stuff, easy to get drunk on it and forget your actual duties.

    NOT a good look, IMNSHO

  6. jb says:

    The problem is, the case -doesn't- turn on a fact only 2 people in the world know, one of whom is dead. There were eyewitnesses to the aftermath, Martin's girlfriend alleges he was on the phone with her in the moments before the confrontation and alleges various things about what he was saying, Zimmerman's story alleges facts about the confrontation that could be verified by testimony of the cops who arrived shortly after the shooting.

    If you wanted to write a good affidavit, clearly laying out the case without conclusory or vague statements, you could do it. There exists the basis for real legal proof one way or another–items that could be investigated and at least provide strong circumstantial evidence one way or another. It wouldn't have to devolve into a "he said, he said, he's dead" situation, which both sides of the political fight seem to want to turn it into.

  7. Robert says:

    Is "Murder 2" the only thing the Jury will be able to convict Mr. Zimmerman on? If so, then I think the prosecution has an uphill battle!

    Don't get me wrong: I think it's disgusting that people carrying guns go out looking for confrontation! But the overall sloppiness here is just going to make a lot of people angry, on all sides of this.

  8. Scott Jacobs says:

    Zimmerman was the one who provoked this incident. In the end Zimmerman might be mostly telling the truth about what happened, but when you follow someone, get in their face, etc. while carrying a gun, in my mind you have greatly contributed to the outcome of what happened

    The problem is, none of that is clear, and also not entirely relevant.

    Following is not – barring a court order – illegal, nor is Zimmerman's carrying of a gun.

    Let's assume that Zimmerman DID profile Trayvon. What's more, we'll even assume that he initiated the confrontation, and EVEN THREW THE FIRST PUNCH (which, by accounts, he didn't).

    None of that matters if the following happened…

    At any point, if Trayvon went for Zimmerman's gun, the shooting became 100% self-defense.

    And since originally it was reported that Zimmerman's revolver had failed to cycle properly, that rather suggests a hand on the cylinder.

    And if it was Zimmerman's hand on the cylinder, he's got the worst shooter's stance on the freaking planet.

    Had I the cash to wager, I'd put money on the judge tossing this as self-defense, and even if he doesn't I can not possibly imagine what The State might have as evidence to counter the small mountain of Reasonable Doubt that the defense could raise in this case…

  9. Scott Jacobs says:

    God damn android web software and it effing up my formatting!!!!

  10. Scott Jacobs says:

    Chris – I told my GF that, a day or two before every court date Zimmerman has, stock up on several days worth of food and water, and get ready to stay inside for a while…

    Because if this ends up going Zimmerman's way, cities will burn.

    It will make the Rodney King riots look like an awkward date.

  11. Ken says:

    Oh, God. Seriously? Is this how this post is going to go?

    How about if we talk about the affidavit, and affidavits generally, and probable cause.

  12. Fred Jones says:

    @scott jacobs I just don't think that is right under florida law, and I think even the Dersh mentioned that in his piece. If you start the fight, you lose your stand your ground defense.

  13. delurking says:

    Serious questions from a non-lawyer follow.

    Is the following true?
    "Let's assume that Zimmerman DID profile Trayvon. What's more, we'll even assume that he initiated the confrontation, and EVEN THREW THE FIRST PUNCH (which, by accounts, he didn't).

    None of that matters if the following happened…

    At any point, if Trayvon went for Zimmerman's gun, the shooting became 100% self-defense."

    If this is true, why? If Mr. Martin is getting punched by Mr. Zimmerman, does he not have a right to self-defense? Does that right not include taking away Mr. Zimmerman's weapon?

    Isn't "probable cause" synonymous with ">50% chance". If so, and there are two people involved in an incident, don't you only need the slightest reason to believe one was the aggressor in order to assign the right of self-defense to the other and therefore arrest the one?

    Thanks.

  14. Chris Rhodes says:

    Robert: Don't get me wrong: I think it's disgusting that people carrying guns go out looking for confrontation!

    You mean like the police?

    (I mean, I'm fine with that, but most people have a blind spot when it comes to people with a badge . . . )

  15. Boyd says:

    Just for clarity's sake, Scott, Zimmerman's gun was Kel-Tec PF-9, a semi-automatic pistol, not a revolver.

  16. InMD says:

    At Ken,

    As though you couldn't see that one coming.

  17. Chuck says:

    Isn't "probable cause" synonymous with ">50% chance".

    Nope. Just a "reasonable suspicion" that someone committed a crime.

  18. Tarrou says:

    :sigh: every post on this subject I see on every blog quickly devolves into internet sleuthing.

    As to the actual point at hand, the public has been ill-served by the government in this case. Whether or not any one person thinks Zimmerman committed murder or not, a good process is what should be able to get to the bottom of it. At this point, whichever side "wins", we will all be losers, because the result will be tainted. Shoddy police work, now shoddy prosecution, the race baiting…..This has the potential to be OJ all over again. If Zimmerman gets convicted, he'll be able to appeal forever given the media coverage and governmental missteps. If he is acquitted, a good sector of the public will blame (say it with me now) racism, incompetence, incompetent racism and racist incompetence.

  19. Richard says:

    @delurking. I agree Isn't this the basic problem of the self defence law. If Martin was followed and haranged by a stranger with a gun, surely he'd feel threatened and want to get the first blow in.

  20. ParatrooperJJ says:

    Isn't probable cause a higher level then reasonable suspicion….?

  21. TJIC says:

    @scottjacobs:

    > Then we'll just have to wait for the Feds to file Hate Crime charges
    > against Zimmerman in order for the mob's justice to be done.

    Indeed. Or maybe for lying to an investigator.

    The man is going to be jailed for years, or at the very least utterly ruined.

    When Leviathan sets its sights on you, you're done, rule of law be damned.

  22. Jess says:

    Back to Ken's point. It's very poorly written. Have to wonder how much of that was a result of the court of public opinion and the politics of "making sure we look like we're doing something so I don't lose my job" even if we look like gonking idiots in the process.

  23. delurking says:

    Jess:
    I think you meant:

    "Even if we look like gonking idiots, to that tiny fraction of the population who know how an affidavit is supposed to be written, in the process"

    The calculus is obvious. If the judges tosses the whole thing, the prosecutor says "I tried" and the mob anger is transferred to the judge.

  24. perlhaqr says:

    Oh, God. Seriously? Is this how this post is going to go?

    How about if we talk about the affidavit, and affidavits generally, and probable cause.

    But, but, but, I don't know anything about any of those things! And since nobody really knows what happened between Martin and Zimmerman other than the final outcome, it's way easier to bloviate convincingly about that… ;)

    More seriously, thanks for the analysis. 'Cause I really don't know pretty much anything about affidavits, so, I learned something!

  25. EH says:

    Jess: How about Hanlon's Razor?

  26. Ken says:

    By the way: affidavits in support of complaints are relatively easy. Affidavits in support of search warrants are far more complicated, and hence tend to suck more in real life.

  27. Chris says:

    Ken,
    When family and "personalities" demand "justice be done" they are not talking about a fair trial.

    I think the poor affidavit is the proof you need that this is not going the way a normal 2nd degree murder trial goes. This affidavit looks like Saddam's "proof" of his destruction of his WMDs. For a very similar reason; they needed to throw something, anything together as fast as possible.

  28. dfbaskwill says:

    None of us know for sure whether Zimmerman is a murderer or not. But all of us know that no "Special" Prosecutor should be so damn giddy for 15 minutes of fame when one man is dead and another is locked up. I hope she paid a lot for her makeover, in fact I hope she was over-charged. Justice should be blind, (and color-blind).

  29. Jeff Hall says:

    > I don't know what happened here, but this whole thing is getting to
    > look more and more like a media setup to intentionally create race
    > violence and increase race tensions.

    So he didn't shoot the kid, he actually shot Nancy Grace cleverly disguised in a hoodie? Good grief.

  30. Sagae444 says:

    Re Corey says in the affidavit that Zimmerman said "f**king punks." Just amazing that she would use that. CNN has come out with 3 different versions of what Zimmerman was saying, "f**king coons," "f**king cold," and "f**king punks." How is Corey going to play that audio for the jury and tell them he said "f**king punks?"

  31. An Anonymous Coward says:

    I think its because the special prosecutor knows she has to charge lest she be the next target of the mob, but also is deeply worried that the judge is going to laugh her out of court anyway, so is just going through the motions with something that will play well in the court of public opinion.

    IF Zimmerman's statement is correct: that he lost contact with Martin, and was returning to his car to wait for the police when Martin attacked him, including knocking Zimmerman to the ground and wounding his head [1], then it is pretty clearly self defense in any state, its just that in Florida, the "Stand Your Ground" law means the judge can throw it out then and there rather than dragging it to a jury.

    [1] I hope their are photographs, if not, the POLICE should be fired for incompetence…

  32. ShelbyC says:

    Well, the judge found probable cause, right? So the affidavit served its purpose. Or am I wrong and probable cause can still be challenged?

  33. Smock Puppet, 10th Dan Snark Master says:

    >> Jess: How about Hanlon's Razor?

    Oh, shut up you nazi bastard!
    :^D

  34. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    >>> So he didn't shoot the kid, he actually shot Nancy Grace cleverly disguised in a hoodie? Good grief.

    The original comment appears to have been erased. >:-/

    No, genius. I'm saying that the media's endless re-painting of it constantly foments anger on both sides, and does nothing to ameliorate the situation by providing any consistent information that isn't immediately reversed and repudiated the next day.

    This whole thing may well have not the slightest thing to do with race, and the media has done very little to push that fact into the public's consciousness.

    They HAVE, however, quoted every race-baiting hustler and two-bit demagogue with a loudspeaker. Why the hell is the opinion of a convicted ear-biting rapist like Mike Tyson even vaguely relevant, for example? He's been at one point a great boxer. This makes his rather blatantly offensive opinion on the Martin-Zimmerman case relevant HOW?

  35. a hip hop artist from Idaho (fka Bella Q) says:

    When I read the affidavit, my first thought was that I've seen more artfully drafted (state) search warrant affidavits put on my desk by LEOs for review. Good to hear that response wasn't too overreactive.

  36. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    P.S., Jeff, by "media setup" I mean that they picked THIS case to turn into this year's Casey Anthony. How many other people have gotten shot in the last 2 months? How many others involved white people, black people, neighborhood watch people, and whatnot else?

    How the media SLANTS things — particularly in early times on hot button issues — is particularly relevant to how the public reacts. They could have blown off the race-hustlers and played down the excessive claims of racism, but they chose not to — they have expressly fomented the anger of both white people and black people by painting what quite likely was only marginally about race as a completely racist act, with white people trying to pawn it off incorrectly as justifiable, some kind of a return to the days of the cross-burning lynch mob, with Zimmerman a one-man mob.

    There appears to have been at least one, and perhaps two, instances of related beatings in Gainesville, FL, for example:

    In Gainesville early Saturday, a 27-year-old white man was beaten by a group of between five and eight black men as he walked home on Southwest 23rd Terrace, police said.

    The victim told police the attackers shouted "Trayvon!" before beating him, though he was intoxicated and could not give a description of the attackers or their vehicle.

    This is gonna get more serious before it gets better — the media have allowed this racist crap to get pushed all too endlessly and openly, while looking the other way anytime someone black says or does anything racist.

    Instead of quoting Tyson they should be vilifying him, and doing so by the simple act of asking what would be the response if a noted white celebrity called for outright shooting a black gunman in response? Or any variant you care to make which seems "equivalent" to you of the racist calls for violence by not only Tyson but also Spike Lee and any number of others.

  37. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    >>> "f**king punks?"

    The key question here is: WTF is wrong with "f**king punks?"??

    "Punk" is now supposed to be some racist codeword?

    If he said ""f**king coons" then THAT would at least be a sign of some overt measure of racism (And I'll equate it with full-on racism when blacks are just as stomped on for any white-oriented pejorative, thanks)

    But "punks" is hardly a racist term.

    IF Zimmerman's statement is correct: that he lost contact with Martin, and was returning to his car to wait for the police when Martin attacked him, including knocking Zimmerman to the ground and wounding his head [1], then it is pretty clearly self defense in any state, its just that in Florida, the "Stand Your Ground" law means the judge can throw it out then and there rather than dragging it to a jury.

    Precisely. This is exactly the issue at question here, and that is, the last I heard, the basis for not arresting Zimmerman in the first place. The evidence supported this claim of his.

    Face it, Zimmerman is going to have the next umpteen years of his life terrorized by not only a civil suit but potentially a civil rights suit. Even if he's let off "scot free", he's not going to get away without paying a huge penalty for his actions. It's just not happening. This whole thing is a basic cluster-eph in every way, from the moment Zimmerman spotted Trayvon, no matter what he was doing.

  38. David Schwartz says:

    The affidavit also makes a clearly false claim about the conversation between Zimmerman and the 911 dispatcher. It states that the dispatcher "instructed Zimmerman" not to follow Martin. This lets the affidavit characterize Zimmerman as having "disregarded the police dispatcher" in his decision to continue following Martin. This is completely contradicted by the 911 tapes. The dispatcher simply advised Zimmerman that the police did not need to follow Martin. She never even suggested that he should not do so. A reasonable person in Zimmerman's shoes would have most likely have believed that the dispatcher was concerned for his safety.

  39. johnl says:

    If he said ""f**king coons" then THAT would at least be a sign of some overt measure of racism (And I'll equate it with full-on racism when blacks are just as stomped on for any white-oriented pejorative, thanks)

    I'm not clear what would distinguish "full on" from "some overt measure of" racism, but sounds like it'll be something stupid!

  40. Scott Jacobs says:

    Face it, Zimmerman is going to have the next umpteen years of his life terrorized by not only a civil suit but potentially a civil rights suit.

    I am lead to understand that by charging Zimmerman, should he be found innocent (or the charges tossed by the judge), he becomes immune from civil liability (I guess the theory in FL is "if you didn't commit a crime, you can't be held civilly responsible).

    The civil rights stuff? If you mean sued in federal court, then no, because he's not a government official…

    But Federal Hate Crime prosecution? Yeah, they'll go after him for that for sure.

  41. Jess says:

    @EH reference to Hanson’s razor is apropos perhaps even more so as Sir Bernard Ingram would say “I do assure you that they would produce more accurate work if they adhered to the cock-up theory.”

    @ Delurking – at this time I assume the percentage that actually understand how an affidavit is supposed to be written are approximately the same percentage who understand criteria for when there should be a criminal trial in this country is not “someone was shot killed and people are angry about it” but that "the state believes that there is sufficient evidence to prove beyond a reasonable doubt that the defendant is guilty of a crime."

    It seems very clear to me that this is ALL about transferring blame – and a crappy affidavit is certainly one way off the hook given the majority of the population won’t comprehend the nuances.

  42. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    >>> I'm not clear what would distinguish "full on" from "some overt measure of" racism, but sounds like it'll be something stupid!

    I figured some idiot would bite. Thanks.

    First off, when you can claim you automatically jump down the throats of anyone who uses the "n" word, regardless of their skin color, THEN you can get on your high horse. Until then, you're advocating "special rules based on skin color". That's covered under the textbook definition of "racism". Maybe you're the random odd one out here, but I'm betting by the hook that you're guilty of racism.

    Second, something which is racial is not necessarily racist. Therefore, the observation that a large percentage of crime is committed disproportionately by blacks is racial, not racist. It is a statement about race but not one which is in ignorance of, or violation of, factual evidence. "Black people are much more likely than white people to suffer from sickle-cell anemia" which can be racially inverted as "white people are much more likely to contract malaria." Both are racial statements but both are justified by facts, and ergo, not racist.

    Third, someone who is directly confronted by this fact regarding blacks and crime, day in and day out, can sometimes be disgusted with society's racism — and that IS what it is — of not holding black people to the same kind of standards they hold whites and any other racial groups to.

    If you think that it is OK for blacks to commit more crimes than whites — that's racist.

    If you don't call black people out when they make excuses for supporting illiteracy, poor choices, and downright denigrating blacks making good choices — that's racist.

    The single most likely factor in living in poverty is not skin color — it's the lack of two parents encouraging their children to thrive. When you don't call black people on the carpet for not putting peer pressure on their own people to discourage unwed motherhood, that's racist. When you don't call them on the carpet for encouraging gangsta thug culture — that's racist.

    The simple fact is, that the so-called "oriental" fared almost as poorly as the black man did 100 years ago. If he went out with a white woman, he'd get beaten and possibly lynched. And yes — there WERE segregated water fountains in areas where orientals were common. If you go looking for photographs in 40s and 50s Cali, they're there.

    Somehow, though, the "Oriental" didn't fare as badly as the black over the last 50+ years. Instead of having a 30+% incarceration rate, they're much more likely to be at the top of their class.

    Why?

    Maybe part of it is no one told them, if they failed, "it wasn't their fault, it was whitey's" They were held to the same standards whites were. They weren't offered lots of handouts to help "make up" for the awful treatment of the racists.

    This can lead to a tendency to say, effectively, "Eph it. If they are going to be racist, I'm not going to worry about it that much either."

    They're wrong.

    But it's an all too human behavior in the face of hypocrisy, and not as bad, as far as I'm concerned, as the kind of soft racism that sets up two standards, one for blacks and one for everyone else even as it hypocritically denounces racism against blacks.

    The distinction, now, between 'full on" is if you're actively, overtly entertaining racist notions and ideas, supporting them, and in favor of them — kind of like most liberals — or if what you've done is to occasionally lapse into some racist comment or idea until you think about it a moment and realize you're wrong.

    In other words, one might, in annoyance, make a stupid racist comment, while at heart realizing it's wrong. A moment's lapse is not the same as supporting racism, or believing it.

    Given that Zimmerman actively pursued racial justice for a homeless black man beaten by cops, it seems rather improbable that he's overtly racist. If he said "F**ing coons" then he certainly said something racist, however. And that can certainly be relevant on some levels regarding his motivations, except the idea of sustained racism certainly doesn't match up with the aforementioned homeless guy-cop actions.

    I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

    I don't always live up to that ideal, but I've always tried to. I really don't care if someone is black or white or oriental or hindu or any other creed or nationality or any other "race group" I expect you to expect to be treated no differently than any other. And that's the way I'll do my best to behave, too.

    But it's not always easy when people think that some massive freaking errors made by people a generation or more behind me entitles them to special treatment NOW at MY expense. Because
    a)*I* had nothing to do with that
    b) Half my ancestors were in Italy up until about 1920, and they lived in NYC, so had nothing to do with southern violence or oppression.
    c) The other half of my ancestors were pretty much from the north, without any "recent" exception. So they, too, had very little to do with southern violence or oppression.

    So how is it that I might be expected to "owe" any special privileges to anyone? Hmm? What did I — or even my ancestors — do? Exist?

    You don't fix racism by inflicting more racism. Period.

    Until everyone figures out that white people TODAY don't owe any reparations to black people TODAY, Dr. King's Dream is going to remain exactly that. Until black people stop trying to take every possible interaction regarding race as racist — and white people stop allowing them to play the race card so relentlessly with such a meek response — the world is going to remain a pretty ephed up place.

    And that's a shame.

    >>> I'm not clear what would distinguish "full on" from "some overt measure of" racism, but sounds like it'll be something stupid!

    I figured some idiot would bite. Thanks.

    First off, when you can claim you automatically jump down the throats of anyone who uses the "n" word, regardless of their skin color, THEN you can get on your high horse. Until then, you're advocating "special rules based on skin color". That's covered under the textbook definition of "racism". Maybe you're the random odd one out here, but I'm betting by the hook that you're guilty of racism.

    Second, something which is racial is not necessarily racist. Therefore, the observation that a large percentage of crime is committed disproportionately by blacks is racial, not racist. It is a statement about race but not one which is in ignorance of, or violation of, factual evidence. "Black people are much more likely than white people to suffer from sickle-cell anemia" which can be racially inverted as "white people are much more likely to contract malaria." Both are racial statements but both are justified by facts, and ergo, not racist.

    Third, someone who is directly confronted by this fact regarding blacks and crime, day in and day out, can sometimes be disgusted with society's racism — and that IS what it is — of not holding black people to the same kind of standards they hold whites and any other racial groups to.

    This can lead to a tendency to say, effectively, "Eph it. If they are going to be racist, I'm not going to worry about it that much either."

    They're wrong.

    But it's an all too human behavior in the face of hypocrisy, and not as bad, as far as I'm concerned, as the kind of soft racism that sets up two standards, one for blacks and one for everyone else even as it hypocritically denounces racism against blacks.

    The distinction, now, between 'full on" is if you're actively, overtly entertaining racist notions and ideas, supporting them, and in favor of them — kind of like most liberals — or if what you've done is to occasionally lapse into some racist comment or idea until you think about it a moment and realize you're wrong.

    In other words, one might, in annoyance, make a stupid racist comment, while at heart realizing it's wrong. A moment's lapse is not the same as supporting racism, or believing it.

    Given that Zimmerman actively pursued racial justice for a homeless black man beaten by cops, it seems rather improbable that he's overtly racist. If he said "F**ing coons" then he certainly said something racist, however. And that can certainly be relevant on some levels regarding his motivations, except the idea of sustained racism certainly doesn't match up with the aforementioned homeless guy-cop actions.

    I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

    I don't always live up to that ideal, but I've always tried to. I really don't care if someone is black or white or oriental or hindu or any other creed or nationality or any other "race group" I expect you to expect to be treated no differently than any other. And that's the way I'll do my best to behave, too.

    But it's not always easy when people think that some massive freaking errors made by people a generation or more behind me entitles them to special treatment NOW at MY expense. Because
    a)*I* had nothing to do with that
    b) Half my ancestors were in Italy up until about 1920, and they lived in NYC, so had nothing to do with southern violence or oppression.
    c) The other half of my ancestors were pretty much from the north, without any "recent" exception. So they, too, had very little to do with southern violence or oppression.

    So how is it that I might be expected to "owe" any special privileges to anyone? Hmm? What did I — or even my ancestors — do? Exist?

    You don't fix racism by inflicting more racism. Period.

    Until everyone figures out that white people TODAY don't owe any reparations to black people TODAY, Dr. King's Dream is going to remain exactly that. Until black people stop trying to take every possible interaction regarding race as racist — and white people stop allowing them to play the race card so relentlessly with such a meek response — the world is going to remain a pretty ephed up place.

    And that's a shame.

  43. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    Sorry, that's partly doubled up, the idiot copy/paste function didn't do what I thought it was doing. I was pulling a section out as beside the point and it apparently got two copies of it somehow with one part removed. :-/

    I hate working in tiny boxes.

  44. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    BTW, here's what Zimmerman did two years ago, which suggests very much that "coon" was not the word he used:

    Here

    If it was, it strongly suggests it was from a moment's pique, and not evidence of a general pattern of behavior or outlook.

  45. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    >> I am lead to understand that by charging Zimmerman, should he be found innocent (or the charges tossed by the judge), he becomes immune from civil liability (I guess the theory in FL is "if you didn't commit a crime, you can't be held civilly responsible).

    I could be very wrong here but "wrongful death" is the thing I'd think he could be sued for. Being innocent of murder isn't the same thing as being liable for it effects.

    If I am involved in an auto accident which kills someone, I may be found not guilty of manslaughter but one would think that I could still be charged civilly for damages by the heirs. The standards of proof are quite different, and it would seem inappropriate for one to override the other.

    a) FL law may be different from my belief, as could the law in general everywhere, I am no attorney.
    b) Ken? An actual legal impression would be better than any guesswork on my part.

  46. Jon says:

    Question : does it seem at possible to those of you with experience in criminal cases that the only point of this is to stall and let things cool down?
    Phoning in the affidavit (and his lawyer not making an issue of it) would make a lot more sense if it's not really ever intended to go anywhere.

  47. David Leech says:

    Look, there is one fact we know about. A man who was armed killed a man (youth) who was unarmed in the street. I don't know about you but I would like to get to the truth of the matter. Forget all the hearsay there should be an investigation and a trial. I would hate to live in a country where armed people can kill unarmed people in the street without somebody trying to find out the circumstances.

  48. Scott Jacobs says:

    And I would like to live in a country where, when one prosecutor declines to file charges, a howling, violence-threatening mob can't force another prosecutor aside so a third one can finally press charges.

  49. Kathy Johnson says:

    It appears that the prosecutor could not even handle attribution as well as I once did — back when I was a young & dumb reporter for a crap free weekly?

  50. ElamBend says:

    Hear, hear on the last two comments. There is enough questions of fact here that the prosecutors should have been able to shine up a better turd for an affidavit. The fact that the state criminal case won't be the last if the feds don't like the outcome is tyranny.

  51. Jess says:

    @David, I’m with Scott on this one. And, I’m pretty darn sure they have been investigating. Even when someone is killed legitimately in self defense (homeowner shoots intruder), the authorities still investigate. A trial however is an entirely different matter unless there is enough evidence to warrant pursuing one. I for one prefer to live in a country that still ascribes to the concept of innocent until proven guilty. But there are many who think like you do – I think they work in airport security.

  52. Grandy says:

    Yeah, I think the real problem so far is that we did get an investigation, and it either (1) didn't turn up nearly as much as people were hoping and/or (2) was mailed in.

    In addition to other "I wishes", I wish I didn't live in a world where this became a heated racial issue. Because all the circus gets in the way of actually trying to find the truth and see justice done if there is any to be done.

    The circus:

    - The Stand Your Ground red herring as perpetrated by the media and people who, as Walter Olson puts it, are simply trying to score ideological points. This isn't about ideology, you fucking douche bags.

    - The media's attempt to portray this as a white on black crime, and a racially motivated crime at that.

    - The usual generic white people rage at the above.

    All of it hinders the ability for right to be done.

  53. Jess says:

    A few others weighing in on how poorly the Zimmerman affidavit was written.

    "Harvard University law professor Alan Dershowitz appeared on MSNBC’s Hardball where fill-in host Michel Smerconish asked him his opinions of the arrest warrant issued and carried out for alleged Trayvon Martin murderer, George Zimmerman. Dershowitz called the affidavit justifying Zimmerman’s arrest “not only thin, it’s irresponsible.” He went on to criticize the decision to charge Zimmerman for second degree murder by special prosecutor Angela Corey as being politically motivated."

    Full story here http://www.mediaite.com/tv/harvard-prof-alan-dershowitz-zimmerman-arrest-affidavit-irresponsible-and-unethical/

  54. AlphaCentauri says:

    This could have been buried as a Latino-on-Black crime and gotten little attention. It's the string of bad decisions by law enforcement and prosecution that has made this a media circus. An armed guy with a car in a gated community stalked and shot an unarmed teenage pedestrian, and the police chose not to investigate. Had the people involved been of any other race, people hearing about the case would still have been scratching their heads about why this particular gunman got a free pass. If they were conjecturing it was racial, they would be conjecturing there was bribery or class-discrimination or old-boy connections.

    The next question is whether these errors indicate they are generally in the habit of doing things this clumsily, and whether that reflects on a lack of respect for the members of the public that they are supposed to serve and protect.

  55. Scott Jacobs says:

    Alpha, they DID investigate… And at least one, maybe two prosecutors didn't think there was enough to files charges.

  56. David Schwartz says:

    "The dispatcher informed Zimmerman that an officer was on the way and to wait for the officer."

    Does anyone know what that means? This isn't just a grammar nit, it's incoherent. It says the dispatcher did something related to Zimmerman waiting for the officer, but I can't tell what.

  57. Scott Jacobs says:

    It means – I think – "The dispatcher told Zimmerman that a police officer was coming, and that he should wait for the officer." It's the "The dispatcher told him he didn't have to do that" part.

    And again, it isn't anything Zimmerman is obligated to obey. If anything, it is merely something the dispatcher is required to say, in order to limit liability.

  58. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    >>> All of it hinders the ability for right to be done.

    Concurred. Although as a silver lining, it does encourage discussion of the issues — even with heat, as long as some of it is cogent and cool, that gives an opportunity for further reflection even if it doesn't get across right away as having done so.

    I am always of the opinion that pretty much any reasonable discussion may sway a lot of lurkers into thinking even if the direct opposition is a gibbering fool. The latter only makes your case stronger, though it shouldn't in an ideal world.

  59. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    >>> It's the string of bad decisions by law enforcement and prosecution that has made this a media circus. An armed guy with a car in a gated community stalked and shot an unarmed teenage pedestrian, and the police chose not to investigate.
    Other than the seven or eight factual errors in that observation, you're possibly right. LOLZ.

  60. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    >>> And again, it isn't anything Zimmerman is obligated to obey.

    Indeed. He's not only not obligated to do so, he's got just as much right to be there as Trayvon, and, unlike Trayvon, he was a known quantity in that neighborhood.

    In other words, it was certainly within Zimmerman's rights as a citizen to follow Trayvon until he ascertained he was not a threat to the neighborhood. Not because he was black, but because he didn't normally live there. Trayvon, on the other hand, had no rational reason to approach Zimmerman, and it's likely from the events that he did so (note: NOT a certainty, no!), and it was his approach and possible attack which was at least as causative of the events which followed as anything Zimmerman did or did not do.

    In simple fact, if Trayvon started the altercation, then he brought it on himself, particularly if/when he continued to strike Zimmerman when he was yelling for help. At that point, he had his opponent subdued, could reasonably expect some attention with/help from others if he was merely out to protect himself, and should have ceased his violent actions. The continuance of them is presumably what brought Zimmerman to fear for his safety.

    As noted previously — not saying any of this is a Good Thing. It's, however, very much a human-frailty based cluster eph concatenation of events escalating to a very undesirable climax which probably no one involved could have reasonably foreseen as a result of their actions as much as 60 seconds before the end. And no, Zimmerman being armed does not negate that.

  61. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    I'd ask a simple question: Suppose Trayvon had knocked Zimmerman unconscious when he was striking his head against the concrete, and then punched him several more times inadvertently causing a brain aneurism (very very possible)…. killing Zimmerman.

    Now, what would be your position on Trayvon's actions and the result?

  62. johnl (a different one) says:

    So what is "probable cause"? In ordinary usage, probable means at least as likely as not, so, 50%. But to lawyers, it means, what, 5%? Reasonable suspicion is 1%, 0.1%?

  63. Peter B says:

    IIUC, had Zimmerman not been arrested, he'd have been immune from being sued. Probably has nothing to do with anything, right?

  64. Bolero says:

    I'm sorry, but anyone claiming racial discrimination is not pervasive in our society is either lying or simply doesn't get out much. Until several generations of black people can live their lives without facing discrimination at every turn, white people will be suspected of racism when there is potential for doubt.
    And to the fool who compared the short-term discrimination of Chinese during WWII to the centuries-long discrimination of black people in the US: I see your false equivalence.

  65. piperTom says:

    It is hard to believe that Ms Corey is as incompetent as this affidavit makes her seem. Yet, there it is, stinking up the place like a big turd. However, there is an alternative explanation for it.

    Governor Scott: I'm assigning you to this case and you will charge Zimmerman.

    Ms Corey: But sir…

    Scott: No buts! There will be riots, if we don't charge. Do it!

    Corey: OK, Sir.

    Corey (to her team): We could present a proper affidavit (that would please Ken) with a chain of attribution … if we had any chain of attribution. Since we don't, we'll make up a story and hope a judge tosses it out. Then Scott can be mad at him!

  66. Dan Weber says:

    Wow, this went downfill fast.

    Anyway:

    If this is true, why? If Mr. Martin is getting punched by Mr. Zimmerman, does he not have a right to self-defense?

    You have a right to proportionate self-defense. If some guy punches me in a bar, and I then draw a gun on him, he could then respond with lethal force. It's possible for both sides to illegitimately escalate a fight.

    Note that I'm not saying that's what happened in this case.

    Isn't "probable cause" synonymous with ">50% chance".
    Nope. Just a "reasonable suspicion" that someone committed a crime.

    No. Reasonable suspicion and probable cause are very distinct concepts.

    Is "Murder 2" the only thing the Jury will be able to convict Mr. Zimmerman on?

    In Florida, the jury is instructed that they can convict on lesser charges.

    A man who was armed killed a man (youth) who was unarmed in the street. I don't know about you but I would like to get to the truth of the matter. Forget all the hearsay there should be an investigation and a trial

    No. We do not put people on trial to "find out the truth."

    Have an investigation? Absolutely.

    But putting people on trial for murder "to get to the truth" is unethical. Trials very rarely expose new facts, and when they do it usually means the prosecution was either stupid or unethical. The trial is the part where the state wants to put a person in jail but must first give him due process.

  67. Matt says:

    Not sure which is the more charitable interpretation:

    1. The prosecutor is incompetent
    2. The prosecutor knows exactly what he's doing, and hopes the whole thing will get thrown out at some later stage of the process, deflecting the mob's rage away from him and onto either a judge or a jury.
    3. Um…is there an option #3?

  68. JRM says:

    Sigh. OK, a few things:

    1. The affidavit is ungood.

    2. If you're charged with a crime, you can usually be convicted of a lesser offense of that crime.

    3. You need not be charged with a crime to be civilly liable.

    4. Put up a video camera in Kansas to see if Gloria Allred or Alan Dershowitz gets there first. Hasn't Dersh said enough silly things to destroy his credibility?

    5. Self-sabotage on the affidavit strikes me as quite unlikely. Never ascribe to malice, etc.

    6. The idea that there's some secret deal preventing the defense from attacking the warrant strikes me as seriously misguided. I don't know Florida law, but the remedies for defective arrest warrants aren't often very helpful. (The remedies for defective search warrants can be exclusion of evidence.)

    7. I have absolutely no opinion on the guilt or innocence of Zimmerman. If there's enough evidence to come to a confident conclusion based on what's public knowledge, then I either haven't seen that evidence or I'm not smart enough to get it right.

    8. It seems highly likely that there is significant non-public evidence. What that is, or where that points, would be speculative.

    –JRM

  69. C. S. P. Schofield says:

    Bolero;

    It is instinctive in Man (and many other mammals) to distrust the "Other". Racism is rampant in all societies that have evolved sufficiently to move up from Tribalism. America, frankly, does better at keeping this to manageable levels than most countries.

    That said, racial distrust in this country will be seriously alleviated on the day that African Americans realize the degree they are being played for patsies by Sharpton, Jackson, and their lilly-white western intellectual patrons, and chase the whole boiling up a tree.

  70. jn says:

    The affidavit is a disgrace. It is also a disgrace how quickly some people have decided that Trayvon attacked Zimmerman, despite knowing that it was Zimmerman who was stalking Trayvon, it was Zimmerman who was armed and it was Trayvon who was going back home with a bag of skittles. It does not prove anything, but makes it quite difficult to make the jump to "the black guy assaulted the white guy". In the end, the lesson seems to be always carry a gun, shoot anybody if there are no witnesses and then claim self-defense. It is called "progress".

  71. Christoph says:

    And to the fool who compared the short-term discrimination of Chinese during WWII</blockquote?

    What are you even talking about? The Chinese were our allies in World War II. Further, Chinese discrimination dates back at least as far as building the railroads, where many of them were treated in a shoddy fashion.

  72. Laura K says:

    Maybe Bolero is confusing the Chinese with the Japanese citizens interred during WWII–which strikes me as a fairly insulting bit of racism right there, if the two are so interchangable to B that there is no emphasis on getting the details right.

    There is discrimination in this case. And it certainly seems like shoddy legal work if even I can see it. I would submit that since trying to decide which ethnicity gets the most discrimination today doesn't solve the real problems of prejudice and inequality. Maybe if everyone could agree that stoping racism completley–rather than fixating on who suffers from it the most–we could actually make headway against it as a general evil.

  73. Laura K says:

    Argh. Left in a "since." sorry

  74. Laura K says:

    Okay. let me try this again. Maybe if we can agree that stopping racism completley is a more important goal (what an idea) than deciding who suffers from it the most, we could prevent it and cure a general evil in society.

    I take it very hard when I submit an inarticulate post, particularly if I am submitting in protest of someone else's.

  75. Patrick says:

    That's what I thought when I approved the comment Laura.

    For what it's worth, I found the dismissal of concentration camps as "short term discrimination" more shocking than his confusion of Chinese Americans for Japanese Americans.

  76. David Leech says:

    Scott Jacobs.

    All things being equal than I would agree with you. Though a cursory glance at life will show you this is not the case.

    Jess.

    How about innocent until proven guilty for the dead man or is a lone individual now allowed to be judge, jury and executioner?

  77. Scott Jacobs says:

    How about innocent until proven guilty for the dead man or is a lone individual now allowed to be judge, jury and executioner?

    That's great…

    So if I'm getting pounded on by a guy a lot bigger than me, I won't defend myself, I'll just let the beating happen.

    Because hey, wouldn't wanna judge the guy…

  78. SPQR says:

    jn, so a list of "facts" irrelevant to whether or not Martin attacked Zimmerman is your rebutable? Great work. There is no such "lesson", because even if Zimmerman is acquitted, the shooting will have altered his life irrevocably. Anyone getting any such idiotic "lesson" from this incident isn't paying attention.

    Leech, "innocent until proven guilty" is a statement of the burden of proof at trial. Martin is not on trial. QED, not applicable.

  79. David Leech says:

    Scott Jacobs.

    So that is now an indisputable fact, gotcha. We wouldn't want evidence or thousands of years of prejudice to get in the way of a youth losing his life would we now.

    SPQR.

    So dead men tell no tales? Every totalitarian government has got your back.

  80. Jess says:

    David – As Jonathan stated previously. There are certain facts of how our justice system works. They do not change when we find them to be unpleasant or even repugnant including the fact that a young man is dead and we “believe” that someone is guilty of murder (ie. not self defense).

    You are assuming two things – both of which are wrong. (1) that no investigation was performed, (2) that Zimmerman is guilty of murder (vs self defense). I have no idea if Zimmerman is guilty or not and you may “assume” you do, but that is not the point here and you seem unable to grasp that fact.

    While the law was designed to help ensure the guilty are punished, it’s higher purpose is to ensure the innocent were not. It’s a fine point that seems to escape you. And trust me I am not soft on crime but I believe in this very important and basic construct of our justice system.

    Honestly David, I hate to be rude and this is the first time I’ve gone off on someone on this board, but heck I’m just going to be rude.

    Your outrage is getting tiresome and you are plain thick. You don’t seem to get it despite being schooled by Johathan Kamens, Scott Jacobs, SPQR, and myself – MULTIPLE TIMES. Go back and read Jonathan’s comments from a prior thread “the address of the angry mob” which I have copied below because he does an excellent job of explaining. I suggest reading it again and then reading the Fifth Amendment and the law regarding presumption of innocence. I refuse to debate this point further with you until you get a clue as to what you are talking about.

    From Jonathan’s post dated March 29, 2012 @4:28pm
    Jonathan Kamens • Mar 29, 2012 @4:28 pm

    David,
    You're really missing the point. The criteria for when there should angry about it." The criteria is, "the state believes that there is sufficient evidence to prove beyond a reasonable doubt that the defendant is guilty of a crime."

    As abhorrent as it may be that Zimmerman might get away with murder / manslaughter / whatever, that doesn't mean that there should be a trial. If there is no compelling, credible evidence that his claim of self-defense is invalid, then it is not possible to prove beyond a reasonable doubt that he is guilty of a crime.

    If it is not possible to prove beyond a reasonable doubt that he is guilty of a crime, then the prosecutor would be failing in his duty by bringing the case to trial. These are the facts of how our justice system works. They do not change when we find them to be unpleasant or even repugnant.

    Hot-heads like you who are demanding that Zimmerman be arrested and put on trial, before all the facts of the case have been explored to determine whether that is in fact an appropriate course of action, do not help the cause of justice.
    See also: http://www.latimes.com/news/nation/nationnow/la-na-nn-trayvon-martin-case-special-prosecutor-pleads-for-patience-20120327,0,1949206.story

    From Jonathan Kamens post • Mar 30, 2012 @2:27 pm

    David, I want to comment on one thing in particular that you wrote: "…and if that happens then it should be proved beyond reasonable doubt that it was unavoidable."

    That standard you are advocating is essentially guilty until proven innocent, and I'm sure I don't need to tell you that the standard to which our justice system aspires is exactly the opposite, innocent until proven guilty.

    David’s Comment:
    “Shouldn't a grand jury hear that facts before anyone concludes there is enough evidence to charge Zimmerman or not?”

    My understanding is that, at least in Florida, the prosecutor gets to decide whether to go to the grand jury or just go ahead and indict. One justification for going through the grand jury is to give the prosecution a chance to "try out" their case to see if it's going to stick, and perhaps to polish it a bit based on the reaction of the grand jury. Another justification is because the grand jury has subpoena power, so they may be able to squeeze more information out of witnesses.

    But another justification, which is probably the one that will apply most in this particular case, is to insulate the prosecutor from blowback on the decision of whether to charge Zimmerman. Whether the grand jury decides to indict or not, the prosecutor can claim that it was the grand jury's decision, not the prosecutor's.

  81. Joe says:

    First going back to the point about the affidavit. The questions we should be asking and which many have – are why was it so poorly written. Secondly, attempting to “try this case” on a blog would seem an exercise in futility given that only a few of us are lawyers and none of us were actually witnesses. Lastly, justice whatever that may be in this case, may or may not prevail. And. somewhere in all of this, I have to think there is a message about the danger of man trying to play God.

  82. Crissa says:

    I'm fairly certain, Jess, that your tl;dr response is full of poo. What are we supposed to be waiting for, exactly? The case was dropped by the prosecutor. If that's so, then the evidence and reasoning should become public knowledge.

    It didn't. All we get to see is shoddy police work – evidence that should've been collected is not ever mentioned in their reasoning for letting Zimmerman go.

    If having a unarmed man dead on the street isn't cause for alarm, Jess, I don't know what is. And I find it somewhat disturbing that you don't find it cause for double checking the local procedures.

    The affidavit seems like a just-so story. I'm not sure how you get to be a head prosecutor without having to attribute statements. Are we missing the annotated version? Does Florida skip attributions and expect the prosecution to support each statement later? What? Everything I hear about Florida makes me really worry about that state's legal system.

    Above, someone mentioned 'f-ing punks'. One of the statements released by police or his lawyer said Zimmerman claims this is what he said. That said, 'f-ing punks' only makes him seem… Less obviously racist. He still pursued a young black man specifically, and admits to killing that young black man two houses out of the way between where his 911 call was recorded and his truck. Cursing about a suspected prowler does not look good when you're trying to say you didn't go kill them.

  83. Jess says:

    Crissa you are absolutely right the evidence and reasoning should become public knowledge and someone needs to have a look at how this thing was investigated. However, that was not the point I was making with David. It is the insistence that someone is guilty without having all of the evidence and reasoning. As you just mentioned all of the evidence and reasoning is not public knowledge – yet.

  84. SPQR says:

    Leech writes "So dead men tell no tales? Every totalitarian government has got your back."

    Godwin fail.

    Crissa, the meme of "shoddy police work" is a media construct fanned by Martin family partisans. It hasn't really stood up.

  85. Dan Weber says:

    A week or two ago Ken reminded us that if you defend free speech rights, you are going to be defending the free speech rights of vile people. The people at the margin of free speech rights aren't going to be saints. They're going to be the KKK and the Westborough Baptist Church. It doesn't matter.

    Similarly, if you defend the people's rights against the police, you are going to be defending the rights of thugs. The cops very rarely go after completely innocent people. Usually it's people who have some kind of prior record. It doesn't matter.

    Ernesto Miranda (of the famous SCOTUS case) was a thug, wife beater, rapist and actually guilty (as later found in a new trial) of the rape that the cops made him confess to in violation of his rights. He still deserved his rights, and his rights being preserved helped preserve them for the rest of us.

    Zimmerman should not be railroaded. Especially if he is 100% guilty. Because the next time the states tries to railroad someone, people will just remember the last guy who was railroaded was guilty, so who cares?

  86. mojo says:

    "The Law" and that ephemeral entity known as "Justice" generally have only a nodding acquaintance. "The Law" is about process.

    Don't they teach that in law school?

  87. Crissa says:

    Zimmerman admits to shooting an unarmed kid. He's guilty. All that's left to determine is how guilty.

  88. Crissa says:

    Crissa, the meme of "shoddy police work" is a media construct fanned by Martin family partisans. It hasn't really stood up.

    Letsee… They didn't test him or his clothes for residues, blood, or alcohol; they didn't retain his clothes for evidence; they released him within a few hours of questioning. They didn't do a background check on Zimmerman. All contrary to regular police procedure. They did not notify the family of his death until contacted by the family searching for a missing son – despite having his name and address that night.
    http://en.wikipedia.org/wiki/Investigation_of_the_death_of_Trayvon_Martin

    My spouse (before I knew her) was once kept 84 hours on less evidence and no murder for being in a self-defense fight. I've had a background check performed on me several times for driving a '73 Nova, let alone being cited or arrested! You can see the difficulty of my believing you that the police work was not shoddy.

  89. Scott Jacobs says:

    Zimmerman admits to shooting an unarmed kid. He's guilty. All that's left to determine is how guilty.

    Thanks. I wasn't sure if you would show exactly how ignorant of the law you were, or if we would simply have to keep guess.

    As for your "evidence" of shoddy police work…

    http://www.quickmeme.com/meme/3ou7xk/

  90. David Leech says:

    Jess.

    Feel free to be as rude as you like as I'm a big boy and wear long pants. Though the day I'm as thick and gullible as you I will ask my friends to take me out to the woods and put my out of my misery. Zimmerman killed an unarmed man so it does need to be established whether it was murder or self defense. This is no innocent until proven otherwise here. This isn't some average Joe dragged off the streets and framed, he did kill a man and admits it. The behavior of the police and the investigators strikes me of institutionalize racism. Yes mob rule is not pretty but you are assuming there isn't justified anger here. If the police had followed proper procedures then this would have been but one incident amongst many. They didn't, in fact they went out of their way to support Zimmerman and that has rightly annoyed a lot of people. Nobody is asking for a lynch mob all anybody wanted was for the police to do their job, fairly and without prejudice.

  91. David Leech says:

    SPQR.

    If you want the right to carry arms well that power should at least be governed with responsibility. Anyone can claim that they killed someone in self defense, are we to take every incidences of killing as justified. Or you know we investigate the killing. A 17 year old is dead here and I can't believe the complacency which people are righting it off as 'no big deal.' I'm a white middle aged Brit and I'm angry about it so why aren't you?

  92. humper says:

    I think the affidavit cites Zimmerman's comments about "fucking punks"etc as evidence supporting a characterization of Z as "evincing a depraved mind regardless of human life" in the moments leading to the killing of Martin – hence Murder II?

    The affidavit says Z "profiled" M. This does not say "racially profiled". "Profiled" means Z told the 911 dispatcher (if i recall) that he thought M looked like he didn't belong where he was, I believe there was some reference to Martin's attire?

    @Ken
    I am not a lawyer, but I had assumed the affidavit was worded as loosely and vaguely as possible so as to keep the evidential powder dry. The affidavit exposes to public scrutiny the minimum amount of substantive evidence and argument ahead of the judicial trial precisely in order to starve the "trial by media" of air until the court has been able to complete its process.

    The following arguments in the affidavit are supported by attributed evidence:

    1. Zimmerman was angry. Attribution, recorded conversation with 911 dispatcher in which Zimmerman utters epithets and angry comments.

    2. Zimmerman acted impulsively. Attribution, recorded conversation with 911 dispatcher in which Z disregards dispatchers instructions.

    3. Zimmerman pursued Martin. Attribution: again, 911 recording. Arrest warrant (goes with affidavit?) also indicates that Martin was Killed at a different address from the one at which Zimmerman initially reported seeing him.

    4. Martin was afraid and reported to someone at the time that he felt threatened by a man who was following him. Attribution: A witness with whom Martin was talking on the phone before he was killed (probably a minor, which is one of many good reasons why the prosecutor would not publish her name before the trial if possible).

    5. Witnesses heard an argument and cries for help.

    6. Zimmerman shot Martin. Attribution: Go see for yourself, its right there in the affidavit.

    7. Martin was unarmed and not committing a crime. I don't think you need attribution for that statement because I believe it is uncontroversial for the time being if we assume a minimal degree of good faith and professionalism on the part of the police and prosecution.

    So lets pull that together. Zimmerman, angry and armed with a gun, impulsively followed an unarmed youth (Martin). He caused Martin to become very afraid meaning that whoever started the confrontation, Martin had the right to stand his ground. Zimmerman then shot dead the unarmed youth who he had angrily and impulsively followed and confronted. This is a) Homicide and b): A homicide in which there is witness evidence that the dead victim was the one with the more persuasive case to invoke "stand your ground", while the shooter probably sought the confrontation, presumably forfeiting their claim to be acting in self-defence.

    The narrative and argumentative element of the Affidavit is probably there to satisfy the public that important stuff has not been forgotten. I don't think the judge is being asked to rely on those elements in making his or her decision. In fact I think the wording is pretty clearly signalling to the judge that probable cause need not rely on those elements. The prosecutor is playing to the gallery without exposing anything new to scrutiny. I think that is smart. I don't see what is wrong with it.

    One thing everyone (even the white-self-pity nutjobs) seems to be able to agree on right now is that we don't yet know quite enough of the details to be able to convict Zimmerman. Surely the prosecutor wants it to stay that way until the trial, or how the heck will she find a comparatively untainted jury?

    … I have the uncomfortable feeling that I have just wasted an hour of my life… when I consider the caliber and tenor of the comments you have allowed people to post on your blog… I suspect that reasoned argument is not what you live for. Ho Hum

  93. Crissa says:

    Thanks. I wasn't sure if you would show exactly how ignorant of the law you were, or if we would simply have to keep guess.

    Thanks, but I'm not a court of law. I don't have to balance my vocabulary to fit between the bench and the stand.

    Guilty means he did it. Duh.

  94. Crissa says:

    humper, what I read Ken as saying is that the pieces of evidence weren't outlined starkly but written in narrative form, and that's what he was critiquing. If you say it as a series of single-fact sentences you intend to support with evidence (but cannot currently divulge) wouldn't the method be different?

    Like I said, I don't know if this is common or not in FL.

  95. Scott Jacobs says:

    No, sweety… It isn't your vocabulary that tipped me off…

    It's the fact that what you said was so very much not actually the way things are.

    Crissy, did you sign the petition to make the Feds charge Casey Anthony?

  96. Scott Jacobs says:

    Guilty means he did it. Duh.

    No, "guilty" means that he committed a crime.

    Shooting someone in self defense is not (yet) a crime.

  97. Jess says:

    Well Scott, SPQR, Dan & mojo, perhaps we can have an intelligent discussion amongst the four of us since clearly a few others are not only ignorant of the law but choose to remain so.

    Case in point. “Zimmerman killed an unarmed man so it does need to be established whether it was murder or self defense.”

    Uh Duh – never said otherwise.

    “This is no innocent until proven otherwise here.”

    Absolutely wrong. Frankly I think Zimmerman is very likely guilty of murder but the law is very clear on this point– presumption of innocence until proven guilty- period. Not presumption of innocence only if it suits the public opinion.

    “ he did kill a man and admits it”

    Yes – and he also says it was self defense. Maybe it was and maybe it wasn’t. Until it is proven one way or the other there was no crime under the technical sense of the law. A crime in the moral sense – absolutely – a young man is dead. And that’s terrible, but we shouldn’t confuse the law with moral justice. While our laws strive to ensure they intersect as often as possible, unfortunately they don’t always. It’s not perfect and it never will be.

  98. IGotBupkis, Legally Defined Cyberbully in All 57 States says:

    >>> Nobody is asking for a lynch mob all anybody wanted was for the police to do their job, fairly and without prejudice.

    No, lots of people have been asking for a lynch mob.

    Clearly, you haven't been paying any attention, if you imagine otherwise.

    >>> "fucking punks"etc as evidence supporting a characterization of Z as "evincing a depraved mind regardless of human life"

    Dude, WHAT PLANET are you from where an expression of mild disgust (considering how hard it his to hear to the point where there's argument over what was said, it's not like he was exactly RANTING it, was he now?) about someone believed to be behaving suspiciously is evidence of a desire to go out and kill them?

    Man, I would not want to be around you when you get pissed at your kids someday….

    >>> The affidavit says Z "profiled" M. This does not say "racially profiled".

    It's an obvious implied element of the phrase in this context, esp. given the media circus. Yeah, it gives you an out but it's a stretch to get to it.

    And thinking that a hoodie might be worn by potential criminal wannabes? Naw, that makes no sense at all. Potential criminal wannabes run around the neighborhood naked shouting at the top of their lungs, "Where's yer shit!?!?! I want it for my own!!" they don't do anything to hide their identities, like, you know, wearing something that covers their face… Nawww…

    Z saw M not just "walking" somewhere or even "walking around" but he specifically says he was wandering around or hanging around — "loitering". The implication is that he might have been casing targets for break-ins. That's "reasonably suspicious" without making a lot of presumptions.

    So it's "profiling" in the sense of "using vaguely rational common sense in observing a given situation."

    If I see some guy get up on a table and start waving around a gun and screaming he's going to kill everyone, I'm gonna "profile" him as "dangerous" and duck under a table. YOU can stand around waiting for "proof" that he's actually dangerous.

    >>> 4. Martin was afraid and reported to someone at the time that he felt threatened by a man who was following him.</i.

    Yes, because, when people are feeling threatened, their first response is to fight, not flee. Oh, wait, that marks them outside the realm of typical human behavior, which is generally to flee, not to fight. Trust me on this one, because I'm NOT one of those, and it's a real pain when everyone around me wants to flee the obvious two bit bully instead of stand up to them.

    Martin is a freaking teenager and he goes up and starts shouting at this heavyset guy he's supposed to be "afraid" of? That dog don't hunt.

    And as far as who attacked whom, if Z attacked M, he had weight on him, which, if you've EVER been in a fight, is a huge difference if you have surprise on your side. You don't wind up on the ground UNDER someone (and there is more than adequate evidence to say this was the case, with M on top of Z), if you have weight AND surprise.

    OTOH, if you have reach and surprise — as Trayvon did — you may well wind up on top. A single good punch to someone can stun them long enough for you to easily carry the fight even if you weigh substantially less. Again — speaking from experience: I've disabled someone — when I was in my teens, with a single shot and surprise. It's called a "sucker punch".

  99. Patrick says:

    Maybe it was and maybe it wasn’t. Until it is proven one way or the other there was no crime under the technical sense of the law. A crime in the moral sense – absolutely – a young man is dead. And that’s terrible, but we shouldn’t confuse the law with moral justice. While our laws strive to ensure they intersect as often as possible, unfortunately they don’t always. It’s not perfect and it never will be.

    Two thoughts:

    First, the people who write and enforce our laws do not strive to ensure that legal and moral justice intersect as often as possible. If they did, we would have many fewer laws.

    Second, I can think of no worse Hell than to live in a country where the people who write and enforce laws strive to ensure what they perceive to be the moral outcome as often as possible.

  100. Jess says:

    Patrick – Thanks for setting me straight on the first paragraph. The second one is what I've been trying to say but not as elegantly.

  101. Scott Jacobs says:

    Second, I can think of no worse Hell than to live in a country where the people who write and enforce laws strive to ensure what they perceive to be the moral outcome as often as possible.

    Well, it ain't for a lack of trying…

  102. different Jess says:

    …presumption of innocence until proven guilty…

    IANAL, but I understand self-defense to be an affirmative defense against a murder charge. The burden of proof is on the defendant who admits to shooting the unarmed teenage victim with the gun the defendant brought to the fistfight that the defendant could have avoided. If a competent prosecutor thought that the defendant could meet that burden of proof, then she might possibly be able to explain that to the public as a reason for not charging murder, and possibly for charging a lesser crime. I don't find much evidence of competence on the part of any prosecutor involved with this case, but that doesn't free Zimmerman from the obligation that he explain his actions in a convincing fashion.

    I don't see how a partially-armed society (CCW permits are not issued to teenagers) could function any other way. If grown men with histories of physical altercations (some of those with police!) could just perforate any teenager they could goad into a punch-up with impunity, this would be a more common occurrence, and society would be worse for it.

  103. Joe says:

    @David

    “Yes mob rule is not pretty but you are assuming there isn't justified anger here.”

    As best as I understand the law is not designed to appease mobs or people that are angry, whether that anger is justified or not.

    “This is no innocent until proven otherwise here.”

    Really, since when? I think it’s time as you mentioned, for you to ask your friends to take you out to the woods and put you out of your misery.

    Rats, I can see this thread has veered off the original topic and back to "trying" Zimmerman. My apologies to Ken for adding to that situation.

  104. David Leech says:

    Joe.

    Fair point as that sentence was poorly expressed. I fully aware of the concept of innocent until proven guilty. What I was trying to convey was Zimmerman cannot be 'innocent' of killing Martin because this is a known fact. A court could rule that it was self defense or murder/manslaughter but that wouldn't change the fact that Martin was dead and that Zimmerman killed him. The best a court could do was find him innocent of committing a felony.

  105. Dan Weber says:

    IANAL, but I understand self-defense to be an affirmative defense against a murder charge

    IANAL either, but it seems who has to prove what usually isn't written in the law (I didn't see anything about it when I skimmed the Florida statute) but is determined through case law. In Florida, at least, the burden is on the state to prove that it wasn't self-defense beyond a reasonable doubt, based on a precedent from 1991 or so.

    In fact, I've also been led to believe that this is true in almost all other state. Which certainly surprised me, since I thought that "self-defense" was the perfect archetype of an affirmative defense.

  106. Joe says:

    David – exactly. Guilty of killilng someone – guilty of a crime yet to be determined. Thank you for clarifying.

  107. Scott Jacobs says:

    And I'm sorry, and maybe I'm just twisted, but if I shoot a guy who is trying to either beat the fuck out of me or kill me, I don't think that I would be guilty of anything. It's all on the guy who's actions who made it necessary for a shot to be fired.

  108. different Jess says:

    If a reasonable person in the same situation would have felt lethally threatened, then sure, Scott. But excuse us if we don't just take your word for it. Talk to the jury.

  109. Scott Jacobs says:

    Glad you would have done with such silly concepts as "rational thought" and "discretion" when it comes to the legal system.

    Everyone how is accused of something by a loud enough, violent enough mob will be charged, no matter what!

  110. David Leech says:

    Wow Scott you are so sure of what took place were you a witness to this incident if so I suggest you alert the authorities. I hope that your certainty isn't base on hearsay, tut tut that would never do.

    Also slippery slope arguments are such fun aren't they.

  111. Crazy Lady says:

    …Bolero needs to go read the Plessy v. Ferguson dissent.

    I will quote it here: "There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race."

    Paraphrase: "Well the *Chinese* are allowed to ride with whites and *they* don't even deserve to be *citizens*."

    Nice argument there.

  112. SPQR says:

    Leech, you somehow think everyone should share your sense of outrage. However, I see this as a borderline case of self-defense – one that may or may not withstand close scrutiny of the evidence – and can not see why I'm supposed to be outraged at such a case.

    The "outrage" is media manufactured nonsense and I don't have to share it just to make you feel better.

  113. Scott Jacobs says:

    I hope that your certainty isn't base on hearsay, tut tut that would never do.

    At least my hearsay has some basis in reality (supported by witness statements, evidence of severe stippling around the gunshot wound, the images of the wounds on Zimmerman's head).

    Yours, on the other hand, seems to exist independent of rational thought and instead is based solely on the self-serving statements of the Martin's lawyer and race-baiters who require racial outrage to keep getting a paycheck.

  114. Jess says:

    Geez, I'm going to have to put you boys in playground detention if you don't start playing nice. Just kidding. Leech did admit he wasn't clear on his post when Joe called him on the "innocent until proven guilty" piece. He may not be there all the way but it looks like he's starting to catch on – could be some hope for him. SPQR – nicely put.

  115. Joe says:

    Well, it appears Zimmerman special prosecutor Angela Corey believes that anyone who criticizes her can be sued. Apparently she called up Harvard Law School complaining about Dershowitz's public criticizm of her handling of the case and treatened to sue for libel and include Harvard in that lawsuit. Apparently she has a history of this type of behavior. Good write up with all the specifics here at Legal Insurrection

    http://legalinsurrection.com/2012/06/zimmerman-prosecutor-has-history-of-going-after-critics/

    I vote for adding her to the censorius asshats of 2012 list.

  116. Ken says:

    Joe, I'm working on a post for Monday about that.

  117. Scott Jacobs says:

    You know, while we have no actual, solid proof that what "The Dersh" says is true, I am – for some insane reason – rather inclined to believe him when he speaks.

  118. Joe says:

    Ken – damn you're quick.

  1. April 13, 2012

    [...] Ken at Popehat isn't impressed at all by the prosecution's handiwork so far: "The affidavit is argumentative, it's [...]

  2. April 15, 2012

    [...] the Murder Two rap), and especially of the probable-cause affidavit (Ken, Popehat, How Not To Draft A Probable Cause Affidavit). The last people to support prosecutorial-decision-by-mob-demand should be the [...]

  3. April 16, 2012

    [...] Here's Ken at Popehat: It's a piece of crap. [...]

  4. April 20, 2012

    [...] be interesting to see when Zimmerman's attorney go for dismissal. As Popehat notes, the affidavit supporting the charges is complete garbage. ABC also has a photo of a bloodied Zimmerman. Tom Maguire also has some useful observations in [...]