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What Are the Real Issues Now That George Zimmerman Has Been Arrested and Charged?

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Charges finally have been brought against George Zimmerman as I believe (and wrote) they should have been from the outset. The shooting was undisputed, and his claim of self-defense was sufficiently in dispute to warrant further proceedings. Although I have been critical of the police for failing to do so at the time, a further examination of the OK Corral-Stand Your Ground legislation might better help to understand their plight. The statute warns law enforcement officers that they may not arrest a person for using force unless they "determine that there is probable cause that the force used was unlawful." That admonition is followed by a remarkable intimidation provision that if a court finds the defendant immune, "the court shall award reasonable attorney's fees, court costs, compensation for loss of income and all expenses incurred by the defendant in any civil action brought by a plaintiff."

Bear with me on this. What does that provision mean? Following so closely on the heels of the warning to police officers, does it mean that they can be held liable in civil court, if they decide wrong? In other words, could they be held liable in damages if they had a good faith belief that probable cause existed? Or does it mean that if the Trayvon Martin family sued George Zimmerman that they could be liable to HIM, if the court found that Zimmerman had acted lawfully under the statute? Or both? The statute either deprives law enforcement of their traditional immunity if they act in good faith in pursuing charges, or it discourages wrongful death suits in this type of situation in a totally unorthodox fashion -- or both. If nothing else, this statute and others like it need a fresh look.

So putting aside this bizarre statute, what is likely to happen next is a bail hearing and a hearing on a motion to dismiss on the self-defense claim. I expect bail with appropriate surety and conditions will be granted because of Mr. Zimmerman's voluntary surrender and failure to flee since the incident. As to the stand-your-ground defense, I have written previously that Mr. Zimmerman must come forward with evidence to support that claim. That assertion met with a boatload of derisive comments that as a former judge I should know something about the presumption of innocence and the government's burden of proof. When it comes to affirmative defenses, a defendant cannot merely say "I acted in self-defense," "I have an alibi," or "I was insane at the time." Some minimum threshold of evidence must be presented in order to support the defense and require the government to rebut it beyond a reasonable doubt.

Here, the killing by George Zimmerman is conceded and admitted. To assert standard or statutory self-defense, he must offer some evidence beyond the mere assertion. The presumption of innocence and the government's burden to prove guilt and, in effect, rebut the defense beyond a reasonable doubt remains throughout. So how will that be determined here? In essence, the case will come down to a question as to what each "reasonably believed." If the proof should demonstrate that Trayvon was the first to strike Zimmerman, the question will be whether Trayvon reasonably believed that such force was necessary to prevent death or great bodily harm to himself. The fact that he was being followed (or possibly chased) by a strange large man who did not identify himself will certainly be a substantial factor.

The same analysis will be necessary for Zimmerman's state of mind. Assuming that Trayvon was the attacker, did he reasonably believe that shooting Trayvon was necessary to prevent death or great bodily harm to himself? The extent of his actual injuries will be extremely relevant. Of course, he has an advantage here as the sole survivor, and his testimony on the subject must be weighed with that in mind. He has an obvious motive to lie. Of course, if the evidence reveals that Trayvon was not the aggressor and Zimmerman shot him nonetheless, the defense cannot prevail.

What I think poses the most difficult question is if both were in reasonable fear of the other. Suppose Trayvon did attack Zimmerman and was justified in doing so, because he reasonably believed that he was in danger. Then Zimmerman too, reasonably believed that he was in danger and responded by shooting Trayvon. The statute provides that justification "is not available to a person who initially provokes the use of force against himself unless the person has tried to escape or has indicated clearly to the other (in this case Trayvon) that he has no intention to use force. So the question will be whether Zimmerman was the initial aggressor and whether he ceased to be and made his intentions clear to Trayvon. There can be little doubt that Zimmerman set these events in motion, but it is obvious that the roles of aggressor and victim can change as circumstances change. Whether they did or did not here will depend on the facts as they are developed.

Thus, despite what has been reported regarding what led up to the confrontation, disposition will depend upon what actually happened at the moment of the confrontation as reasonably seen through the eyes of the two participants. Lurking in the background is the question of racial bias. It not only goes to the question of whether it should constitute a federal crime, but whether or not Mr. Zimmerman's racial views, if any, caused him to be suspicious, to follow Trayvon and ultimately decide to shoot him. The case is not easy, but it is now going to be tried in the justice system where it belongs -- not in the media.