Let me open with a quick survey of reaction to the Zimmerman arrest affidavit from around the blogosphere.
Alan Dershowitz: "not only thin, it’s irresponsible.”
Jeralyn Merritt: "Affidavit = FAIL.
Mark Levin thunders from the right.
"Bmaz" thunders from the left: "wholly deficient". I am not familiar with 'Bmaz' but he is posting at Marcy Wheeler's site and if he/she has 80% of Ms. Wheeler's researching ability that is 120% more than enough to impress me.
I haven't run across any posts (other than the French kiss for Corey) gushing over the lack of substance and the segues to the passive voice in this affidavit. But I welcome suggestions.
I have seen less coverage of this skepticism in the Elite Media. However, CBS News breaks media lockstep and reports on trouble in Paradise:
Strength of case against Zimmerman questioned
But... but... that sweet prosecutor arrested him! And said he "profiled" Trayvon! She said it!
Yes, she did. Now, back to our unexpected interlude with reality at CBS:
(CBS News) Now that George Zimmerman is behind bars facing murder charges for shooting Trayvon Martin in Sanford, Fla. on Feb. 26, there are questions about just how strong a case prosecutors have against him.
Special prosecutor Angela Corey's affidavit outlines her case, saying, Zimmerman "profiled" Martin as a suspicious person, and became the aggressor when he "disregarded the police dispatcher" on this call.
But many criminal trial lawyers in Orlando see nothing in the special prosecutor's affidavit that would convict Zimmerman.
Florida's "Stand Your Ground" law allows even the original aggressor in a fight to use deadly force - if that person becomes reasonably afraid of being killed or seriously hurt. (We intend to explain that in a follow-up).
Trial lawyer Richard Hornsby has litigated 15 "Stand Your Ground" cases - none of them homicides - and won them all.
Hornsby told CBS News he thinks Corey's affidavit is more significant for what it leaves out than for what it includes.
"The moment George Zimmerman fired that shot is the key question in this entire case," Hornsby said. "Did he reasonably believe he had to fire that shot to defend himself? And the fact (Corey) completely left that out, begs the question, does she not have any evidence to refute his version of the events?"
Let's reprise that moment in the arrest affidavit:
"Zimmerman confronted Martin and a struggle ensued."
The switch to the passive voice indicates the prosecutor lacks the conviction or evidence to assert that Zimmerman started the fight.
A to the "profiled" language, my goodness - there is all sorts of profiling other than racial profiling. On his 911 call Zimmerman claimed Martin was acting suspiciously and only mentioned his race when asked by the dispatcher. Let's snip from the NY Times:
Mr. Zimmerman’s father said that what largely aroused his son’s suspicion was how this person was walking close to the town houses, and not on the sidewalk or in the street. Perhaps someone up to no good — or, perhaps, someone disoriented in a maze of identical structures, ducking the rain and looking for the house he had left less than an hour before.
If the prosecutor wants to allege racial profiling, she should have the courage to do so. Instead she chose a magic word sure to thrill the left but without offering the evidence to support it.
CBS is hardly alone in finding skepticism about this arrest affidavit. Other reaction from across the political spectrum:
MORE: Don't ask your mum - Mother Jones has gone silent on this subject, at this writing.
James Fallows at The Atlantic is hyperventilating over the excitement caused by DeeDee, the cell phone girlfriend:
No matter how the case turns out, her likely testimony -- "Trayvon told me he was running away"-- will be dynamite.
...Angela Corey likely has other evidence she will use to buttress the testimony of Martin's friend. But the case against Zimmerman right now looks to stand or fall on the strength of the allegation that Martin was running away from conflict with the neighborhood watch captain.
Wow - wait until Mr. Fallows catches his breath and gets a look at a map, or the timeline. If Trayvon was scared of the 5'9", 185 pound Zimmerman, fear did not lend him wings. He was twenty or thirty seconds from home at a committed run, yet several minutes later he was on site for a scuffle with Zimmerman. How did that happen?
DOES THE INITIAL AGGRESSOR LOSE THE RIGHT TO A SELF-DEFENSE CLAIM? Yes, but no. The less cryptic explanation will come from Dave Kopel:
Finally, Florida law guaranteeing self-defense rights express excludes anyone who “Initially provokes the use of force against himself or herself.” Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights if:
[776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(2)(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
So let's imagine that Zimmerman 'initated' the struggle by placing his hand on Martin's arm in an attempt to restrain him. Maybe that could be charged as assault. Martin responds with a punch to Zimmerman's face. Martin could claim self-defense against Zimmerman's assault and people could argue whether Martin's escalation fell within the exceptions.
Now, suppose at this moment, with both men on their feet, Zimmerman draws his weapon and fires. That would clearly (to me, anyway) be an unlawful escalation. Grist for the comment mill!
But suppose that, as alleged by Zimmerman's father, Zimmerman collapses to the ground and Martin leaps onto his chest and commences striking his head against the ground. Might Zimmerman now reasonably fear "death or great bodily harm"?
Suppose further that during the scuffle Zimmerman's gun becomes visible and Martin grabs for it. This is also alleged by Zimmerman's father, and I caveat that with the notion that as a concealed carry permit holder Zimmerman ought to be familiar with self-defense law and may have let that knowledge guide his statements. That said, it is plausible that the gun became visible, so - is it now reasonable for Zimmerman to fear 'death or great bodily harm'?
The prosecutor was not willing to assert that Zimmerman started the actual struggle. That is critical, since (per 776.012) Zimmerman is allowed to use lethal force to prevent a forcible felony, such as robbery or aggravated assault (776.08). It also suggests an alarming lack of witnesses or clarity as to just what happened.
IN WHICH I MAKE A SUGESTION THAT COULD LAND ME IN THE PSYCHIC DETECTIVES HALL OF FAME: Martin had all the time in the world to get home, take a lap around his townhouse, and head back up the commons area to check out the pipsqueak in the SUV that was offending his sense of gangsta-hood.
The Psychic Suggestion (which I am stealing from a commenter from a few weeks back, but I have forgotten who so it is no longer plagiarism...): Martin had taken a stroll before the NBA All Star game to get his head right for the show; a weedy smell in the house just would not do, seeing as how he had been suspended from school for using marijuana. After seeing Zimmerman he hoofed it back to his townhouse area, stashed his stash, and went back to see what was what.
IF the police conduct a diligent search of the area around the townhouse Martin was visiting (a hundred yards or so from the homicide scene) and find a baggy with drugs, Martin's fingerprints, and a 7-Eleven receipt dated Feb 26, 2012 for Skittles and iced tea, well - yes, I am ready for my close-up.
Such a find would prove nothing about how the "struggle ensued", to borrow the classic formulation of the prosecutor, but it would certainly speak to Martin's fear and state of mind. Of course, it wouldn't say anything the prosecutor wants said, so I would be surprised if they looked.