Martin/Zimmerman: the Murder Two rap

Dan Markel at Prawfsblawg is wondering whether second-degree murder amounts to overcharging the case given the state of the evidence and the prosecutor’s affidavit: “I have no special insight into [prosecutor Angela] Corey’s evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice.”

Relatedly, Tom Maguire at Just One Minute explains his reasons for doubting that Corey has developed breakthrough evidence in the investigation so far. David French and Andrew McCarthy at NRO take sharply different views of how well the prosecution affidavit supports its charge.

And Ken at Popehat isn’t impressed at all by the prosecution’s handiwork so far: “The affidavit is argumentative, it’s conclusory, and it lacks attribution. … This is not the worst affidavit I’ve ever seen — but it’s damn close, and the decision to proceed based on it in such a high-profile case is stunning. … There’s no way that a judge reading this affidavit can make an intelligent or informed decision about the sufficiency of the evidence — even for the low hurdle of probable cause.”

More: Jeralyn Merritt on the affidavit’s unsupported assertions [via Balko] And via Steele, Legal Ethics Forum: George Conk “sensed trouble when Florida Special Prosecutor Angela Corey announced she would not convene a grand jury, skipping the first means of testing one’s evidence and demonstrating recognition of the citizenry’s right to [gauge] the conduct of prosecutors.” “Zimmerman should not be charged, nor sitting in a county detention, based on this document; yet there he is.” [Empty Wheel] Yet more: Radley Balko on the unchecked charging power of prosecutor [HuffPo]


  • My one question for an attorney – we keep hearing about an affidavit from Trayvon’s girlfriend who signed a statement saying what she heard on the phone. Wouldn’t it be wise for the Defense team to try and get that statement and any testimony from her declared inadmissible? You have no idea what is going on in a situation based on listening on the phone.

  • Martin’s mother claims that a voice caught on a phone recording screaming for help is her son’s. Jurors might have reasonable doubt (would a mother say otherwise?), and most likely there are no authenticated recordings of Martin available for comparison. Zimmerman’s defenders claim it is his voice. Does the technology exist to either link or exclude Zimmerman’s voice from the recording? The conclusion would be morally decisive– either he is a liar from beginning to end who deserves the murder charge, or he really was taken by surprise and deserves a reduction in charge.

  • The New York Times demand to repeal all “stand your ground” laws, even in homes, will go nowhere, and those dependent exclusively on the NYT for US news will be utterly baffled at this country’s perversity. But are there other “lessons [to be] learned” from this tragedy?

    How about standardized briefings for police departments to give to neighborhood watch leaders and members, covering such questions as rights to or prohibitions from:
    carrying a gun, loaded or unloaded
    using said gun
    other rights of confrontation, or “citizen’s arrest”?
    Most SYG supporters assume that SYG is not a license to stalk someone and corner them, but what did Zimmerman believe?

    Each State’s gun laws are different, so each State (and some local governments with distinct laws) should have its own distinctive briefing.

  • The 911 dispatcher’s statement to Zimmerman that “We don’t need you to do that [follow Martin]” somehow morphed into the affidavit’s claim that Zimmerman was “instructed not to follow” Martin.

    There is no reasonable way to parse a statement “We don’t need you to do X” as equivalent to “do not do X.” The statement “We don’t need you to do X” means that it is not necessary to perform X, not that performing X is forbidden. Had the dispatcher wanted to instruct Zimmerman not to follow Martin, he would have used the simpler words “Stop following him.”

    Despite this rather elementary grammatical fact, the media has repeatedly claimed that Zimmerman was disobeying the dispatcher’s instructions. The affiant, therefore, must not have been attesting to his own review of the evidence – he was just repeating the media take on the whole story.

    Kind of a clear sign the whole case is media-driven, not evidence-driven.



  • Zimmerman’s brother said that Zimmerman was on his way to the grocery store when he saw the suspicious looking person, and he was not doing a neighborhood watch patrol. Zimmerman had a license to carry a gun.

    So, its a canard that the media has focused on the neighborhood watch thing. He was no more on a neighborhood watch than I was the other day when my vacationing-in-Florida neighbor’s alarm went off and I went outside to look.

  • I’ve read hundreds of affidavits in my career and this is one is weak on the facts, argumentative, and an embarrassment to the special prosecutor who nonetheless appeared to love the media attention.

  • Does one have a positive obligation to obey the “instructions” of a 911 operator, who in most cases is not a sworn officer?

  • Fox 2: Any reasonable person in Zimmerman’s position would have understood the operator’s “instructions” to have motivated by concern for Zimmerman’s safety and a fear of liability. He certainly had every right to follow Martin if he chose to, though that may not be the smartest thing he could have done. For all Zimmerman knew, Martin could have turned around and shot him before he would have had any chance to react.

    What bothers me is the astounding number of conclusory statements in the affidavit with no factual basis documented in the affidavit: Zimmerman “assumed Martin was a criminal”. Martin “was profiled by” Zimmerman. Zimmerman “falsely assumed” Martin was going to commit a crime. Zimmerman “disregarded the police dispatcher”.

  • […] its credit, been generally critical of the charge (links collected at Walter Olson, Overlawyered, Martin/Zimmerman: the Murder Two rap), and especially of the probable-cause affidavit (Ken, Popehat, How Not To Draft A Probable Cause […]

  • […] guilt of George Zimmerman — against the code of ethics. Earlier on the prosecution affidavit here. […]