I’m slow in getting to the Florida special prosecutor’s charging of George Zimmerman with second degree murder. I saw most of the press conference in which the prosecutor, Angela Corey, announced the charges. She came across well, I thought, although she seemed to be having a little too much fun, under the circumstances. When the Affidavit of Probable Cause supporting the second degree murder prosecution was made public, it was denounced by critics like Alan Dershowitz, who termed it disgraceful and unethical. Earlier today, Andy McCarthy, a former federal prosecutor, weighed in at The Corner. He also found the Affidavit wanting.
So, better late than never; here are my thoughts for what they are worth. First, though, I should note that I wrote about the Martin case three weeks ago and concluded among other things, based on what was then publicly known, that Zimmerman should be charged with manslaughter, at a minimum. Since then, more has emerged about Zimmerman’s side of the case, but I still think that conclusion is probably right.
The Affidavit, however, suggests that, despite the extraordinary investigation that has been carried out, the prosecutor may not have much real evidence against Zimmerman. Let’s start with the observation that Zimmerman admits that he shot Martin. The only question is whether he did so in self-defense. I quoted here the Florida statutes on the justifiable use of force, including the “stand your ground” portion of the law, which likely doesn’t apply. To get a conviction, the prosecutor will have to prove beyond a reasonable doubt that Zimmerman did not act in justifiable self-defense when he shot Martin.
The Affidavit is on its face a political document. It says:
On Sunday 2/26/12, Trayvon Martin was temporarily living at the Retreat at Twin Lakes, a gated community in Sanford, Seminole County, Florida. … Martin then walked back to and entered the gated community and was on his way back to the townhouse where he was living when he was profiled by George Zimmerman.
This is remarkably silly. What is it supposed to mean? “Profiled” is a political term, not a legal one.
But what is really striking about the Affidavit is its weakness when it gets to the critical events of February 26:
When the police dispatcher realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that and that the responding officer would meet him. Zimmerman disregarded the police dispatcher and continued to follow Martin who was trying to return to his home.
Zimmerman was entitled to disregard the dispatcher’s advice, and had as much right to walk down the sidewalk as Martin did. But this is the key allegation:
Zimmerman confronted Martin and a struggle ensued.
The critical question, of course, is: how did the struggle “ensue”? Did Zimmerman attack Martin? Or did Martin attack Zimmerman? This is the key question in the case, and as far as we can tell from the Affidavit, the prosecutor doesn’t know the answer. The Affidavit continues:
Witnesses heard people arguing and what sounded like a struggle. During this time period witnesses heard numerous calls for help and some of these were recorded in 911 calls to police. Trayvon Martin’s mother has reviewed the 911 calls and identified the voice calling for help as Trayvon Martin’s voice.
Presumably that is not intended as a joke, but the prosecutor will have to do a whole lot better if she wants to obtain a conviction. It is perhaps worth noting that both Martin and Zimmerman may well have called for help at some point during the altercation.
Andy McCarthy thinks the Affidavit is clearly insufficient to support a second degree murder charge, and likely is intended to stake out a bargaining position in hopes of persuading Zimmerman to plead guilty to manslaughter. That is certainly plausible. But if the prosecutor isn’t even prepared to allege, let alone prove, that it was Zimmerman, not Martin, who started the fight, one wonders what chance she has of convicting Zimmerman of anything.