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.
Daniel Gross: George Zimmerman Had Accomplices. Too Bad We Can't Arrest Them Too.
;-{
Let's consider the ethics, or lack thereof, of Prosecutor Corey, as evidenced by the Affidavit she filed.
"The police dispatcher informed Zimmerman that an officer was on the way, AND TO WAIT FOR THE OFFICER."
The dispatcher ASKED Zimmerman if he wanted to meet the officer. The dispatcher agreed the officer would call Zimmerman when he arrived. Nothing was said about waiting. Zimmerman was given no instructions on what to do until the officer arrived.
"When the police dispatcher REALIZED ZIMMERMAN WAS PURSUING MARTIN, HE INSTRUCTED ZIMMERMAN NOT TO DO THAT and that the responding officer would meet him."
There is a significant difference between pursuit and following. Pursuit evidences an intention to catch someone, following does not. The words of the dispatcher were, "Are you following him?" The dispatcher did not ever "realize" Zimmerman was pursuing Martin.
The response of the dispatcher was, "We don't need you to do that." That is not an instruction to do anything. The officer meeting was at the request of Zimmerman, and not an instruction.
"Witnesses heard people arguing and what sounded like a struggle."
A struggle incorrectly suggests Trayvon was trying to get away. Failing to include that it was a fight with injuries is a lie by omission.
Prosecutor Corey couldn't even produce this shoddy Affidavit without lying.
The truthfulness, or lack thereof, of the Prosecutor's Affidavit is astoundingly important, since the Prosecutor does not have the option to lie. The fact that she did lie supports that Zimmerman is being railroaded for political reasons, and that is not justice by any stretch of the imagination. Trayvon's legacy should be the questioning and hopeful change of this SYG law, not a bitter resentment of unequal treatment created by an angry mob, uncaring of either the facts or the law. Trayvon's memory is in serious danger of being lumped in with the Duke lacrosse case, and that is not an outcome anyone would welcome.
What Zimmerman did was most likely racially motivated but it also goes beyond race into basic human decency and self control. Citizens are not supposed to go around with guns chasing down people they don't like the look of. Citizens are not supposed to act like rogue evil police officers and when they do the REAL police officers are supposed to arrest them, investigate the crime and put them in front of an impartial judge. Everything about this situation has been anarchy, everything from Zimmerman overstepping his bounds as a neighborhood watchman to the police acting as judge and jury to the Black Panthers putting up a bounty and Mike Tyson calling for black on white violence.
The Stand Your Ground law is anarchy. And just look at how our society has reacted to that. Stand Your Ground must be repealed immediately.
Good thing that's not what happened.
there it is in a nutshell.
I've seen a Zimmerman's father interview where the father claims it was George hollering for help. On the "Twin Lakes Shooting Initial Report" file made available for a while, an officer states “While the SFD was attending to Zimmerman, I overheard him state "I was yelling for help, but no one would help me" ...”
Meanwhile the affidavit of probable cause states that Martin's mother identifies the voice hollering for help as Trayvon.
Science will have to be the tie breaker on the voice issue. I think that the whole case turns on that issue. If it turns out that the voice hollering for help is Trayvon, I don't think stand your ground is going to work for George, given his concern on his own 911 that these [people] always get away, and his pursuit of Martin, also heard on the 911 call.
There was this article:
http://articles.orlandosentinel.com/2012-03-31/news/os-trayvon-martin-george-zimmerman-911-20120331_1_voice-identification-expert-reasonable-scientific-certainty
"It's not George Zimmerman crying for help on 911 recording, 2 experts say".
This is an interesting clip of the tape slowed down to half speed. There seems to be a new voice immediately after the shot.
Who was yelling is not that important. What IS important is that Z was sustaining injuries consistent with his story and consistent with the need to apply self defense.
Nothing conclusive--just two opinions, which is what expert opinions are anyways.
Regardless of who it is screaming in the 911 call --it doesn't tell us who started the altercation and what transpired during the missing minute--which IMO is key.
Self defense precedents have always been available in cases where retreat wasn't viable. I think this law, which places a lesser value on human life is sociopathic.
It also seems to legalize the duel. "Stand your ground". "No, you stand your ground". "Ok, on the count of three, draw ... one, two, three ...".
Maybe get a TV show going, the duel of the week.
Incorrect interpretation of the law.
"Self defense precedents have always been available in cases where retreat wasn't viable. "
But have not been reliable.
". I think this law, which places a lesser value on human life is sociopathic. "
On the contrary, the old law which places a lesser value on the VICTIM's life would deserve that appelation.
To your second point, the Florida statute deals with that scenario.
apparently not in THIS case.
Actually FS 776.041 provides that Zimmerman could claim self defense even if he were the aggressor, if either:
- He was in imminent peril and could not escape
- He broke off the attack but then Martin attacked him.
One can hit someone without being the aggressor. According to FS 776.041, the aggressor "Initially provokes the use of force against himself."
Suppose Zimmerman was the aggressor, but Martin fought back. Suppose he ended up on top of Zimmerman, so Zimmerman could not escape and reasonably feared for his safety.
Then, according to FS776.041, Zimmerman, even though the aggressor, would be justified in using deadly force against Martin.
Zimmerman may have provoked the attack, and hence been the aggressor. Martin could have hit or attacked Zimmerman in response, and not have been the aggressor.
If Zimmerman was the aggressor, but Martin fought back successfully enough that
- Z reasonably feared for his life
- Z couldn't get away
Then Zimmerman, the hypothetical aggressor, is allowed to use deadly force against Martin, the hypothetical non-aggressor.
that would indeed be relevant were Martin on trial. 776.013 requires only that Zimmerman was attacked, and 776.041 requires only that Zimmerman did not provoke the attack. Martin's beliefs, reasonable or not, are not germane.
I don't know the case law on 776.041, but your interpretation sounds like a recipe for disaster. I should think 'provocation' requires some overt act on the part of the provoker.
You propose a subjective criterion for provocation - whether Martin reasonably felt threatened by by Zimmerman. This is presumably based on Florida case law. Can you cite some cases?
Here's why it seems unlikely to me on the face of it.
- Judges, including yourself, I am sure, do not like to introduce subjective criteria where this is not clearly written into the law.
- Is it *sufficient* to say that Zimmerman provoked Martin that Martin had a reasonable fear for his safety, even if Zimmerman made no overt threatening act? Is it sufficient that an armed Zimmerman confronted Martin in the dark? This is a recipe for disaster. Remember that we are arguing circumstances where Martin would be justified in attacking Zimmerman first instead of running home. Surely Zimmerman would have to do something overt to merit the use of deadly force.
- Is it *necessary* that Martin feel a reasonable fear for his safety in order to count Zimmerman as having provoked him? Surely not. If Zimmerman hits Martin first, then that should count as provocation, even if Martin, in his youth, feels no particular fear.
Last line. If true that she did seek to avoid a grand jury, it makes sense.
Basing the charge on a mother's claim to what she heard, on a tape of a cell phone recording a fight outside the home, instead of the unbiased witness who was standing next to the people fighting, is beyond outrageous. Keep in mind this mother hired an attorney, to sue for monetary damages in a wrongful death claim, before her son was even buried. Both parents have now quit their jobs, clearly expecting a financial bonanza in the near future. The father heard the same tape, and said it was not his son.
The other primary witness for the Prosecutor is a poster child for perjury. She only gave a statement to the parent's attorney, who was hired to pursue a wrongful death case for monetary damages, 23 days after the shooting, and AFTER the 911 tapes were released so she could be coached on how to lie. Then she refused to talk to the police, Prosecutor, or FBI.
The Prosecutor deserves to be sued. Mob justice is no justice at all. Anyone who thinks this case is somehow healing a racial divide is seriously incorrect. It has created one, by forcing the arrest of man who legally should never have been arrested.
ALL THE EVIDENCE OUT ON THE TABLE.
And nobody is going to sue any DA.
Next he contends that Zimmerman needs substantial injuries before he can claim his life was at risk. Would the judge only allow a knife in the heart or for an individual be be knocked unconscious before those injuries are severe enough to claim "life at risk " ?
There was a face to face confrontation and even though there is very little evidence as to who started the fight, Zimmerman has more evidence than the prosecutor who is set now on defending Trayvon.
Two is more than zero. The prosecution has zero evidence that Zimmerman attacked the teen.
Zimmerman has physical injuries.
Isn't it within the realm of possibility (and perhaps even likelihood) that when Z wouldn't let up following T that T, not knowing who this man was, tried to defend himself? Z was told to leave him alone and persisted. Don't you think a judge/jury would find the fact that he continued to stalk T to be held against Z? You're presuming too much while not knowing all the evidence to this point.
"Self defense" has to be proven, not taken at face value by the police. And the fact that the man whoso terrified Zimmerman was black-- should not have to be such a huge part of the public perception.
Because of this "stand your ground" law,Trayvon would have had an equally valid reason to walk free after minimal police questioning.
But how many black men have been able to claim that excuse with such perfect acceptance from the polic force?
And in this case, I think Zimmerman was justifiably in fear for his own life, since the public could not witness that justice would be served by the law.
I think the repercussions of the "Stand Your Ground" laws are too repulsive for American sensibilities, in the long run.
THAT is self-defense.
He was able to leave the police department with all of the clothing and evidence on his person.
First, if he is going to be convicted Zimmerman most likely would be convicted for manslaughter. Unlike many states Florida’s manslaughter statute (782.07) doesn’t require the killer to have acted with any mental state e.g. malice, negligence etc. The state need only show the killer caused the death AND THE KILLING WASN”T JUSTIFIABLE according to section 776 (which includes the infamous SYG). In other words, contrary to Sarokin’s assertion SYG is not an affirmative defense it is part of the statute's definition as to what is or isn’t manslaughter.
Second, although not explicitly stated, Sarokin implies that the defendant has some non-minimal burden of claiming justifiable homicide under SYG. This is true at a pre-trial hearing to seek immunity. Here the defendant would have the burden of showing by the preponderance of the evidence that he acted in accordance with SYG. However, at trial the defendant only has to introduce enough evidence to show a plausible possibility he acted in self-defense, at which point the prosecution must prove beyond a reasonable doubt that he didn’t act in self-defense
Third Sarokin claims it will come down to what each “reasonably believed”. This is wrong. Florida uses an objective standard of reasonableness. This means it will be up to the jury to determine whether Zimmerman acted reasonably in light of the circumstances known to Zimmerman at the time. Zimmerman’s or Martin’s subjective perceptions are irrelevant
True, you never explicitly stated the burden on the state would not be to rebut self defense beyond a reasonable doubt (that's why I used the term misleading). However, the amount of attention you gave to it might lead some non-lawyers to believe that a defendant at trial would have to demonstrate not only more than an assertion, but some non-minimal level of evidence (say preponderance of the evidence) Actually, all Zimmerman initially has to do is raise some doubt that he might have acted in self defense i.e. he doesn't have to prove he wasn't the aggressor (by the way following a person-without more-doesn't amount to provoking an attack)
Finally, you stated "In essence, the case will come down to a question as to what each "reasonably believed." ". You may have intended to convey they needed to follow an objective standard but that certainly sounds like an interpretation where Zimmerman could get off if he actually but irrationally thought Martin was about to hurt him-a subjective standard
BTW, in the very first successful use of the SYG law as a defense, the defendant shot an unarmed man from several feet away, and it has by no means been unusual since.
BTW, in the very first successful use of FS776 to claim self defense, an unarmed man was shot from several feet away. Florida courts have provided a lot of leeway in deciding what counts as a "reasonable belief" that one's life is in danger.
He shot the boy all within five minutes of talking to the dispatchers and the arrival of the police to the crime scene.