The Zimmerman Arrest Affidavit - Hold The Cheers

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.

Ken of Popehat: "The affidavit is argumentative, it's conclusory, and it lacks attribution."

David French of NRO was a fan!  Andrew McCarthy, also of NRO, brings him down gently ("it is agitprop").

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) Initially provokes the use of force against himself or herself, unless:]

 

(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.

Comments

[myiq2xu]

"Profiling" is not a crime or an element of 2nd degree murder.

[Csnyder]

Lefty Emptywheel says Corey comes up empty:

http://www.emptywheel.net/2012/04/14/zimmerman-anatomy-of-an-deficient-probable-cause-affidavit/

[Extraneus]

The switch to the passive voice

Oh no.

[rse]

It's easy to make fun of pointing out the passive vs active voice but really there is a big difference between "something happened" and "x did y to z".

Which is why the active makes for a better story and the passive is the default for ambiguity and not knowing quite what to say.

Thanks for the empty wheel link. It certainly supports my experience that this case is managing to unite lawyers who don't agree on much. Except maybe preferred single malts.

[bunkerbuster]

Profiling helps establish Zimmerman's "depraved" state of mind.
Did Zimmerman always report people he saw not walking on the sidewalk? Seems highly doubtftul.
Did Zimmerman always report teenagers he didn't know? Even more dubious.
Hoodies? Give me a break.
The conversation about profiling is one the prosecution is certainly going to want to have and one the defense will seek to avoid, indeed.

[Ike]

The affadavit is not intended to be a complete outline of the prosecution's case. It is only for the purpose of establishing probable cause - under the laws of Florida - for charging Zimmerman with 2nd degree murder. The formal accusation, the charging instrument which in this case takes the place of a grand jury's formal indictment, has to contain all of the legal elements of the charged offense with sufficient factual details - based on the individual case - so that the defendant is apprised of what he has to defend against. Neither of these documents are supposed to provide discovery of the State's evidence - the State's 'case' - to the public or to the defendant. In other words, the affadavit is a formality and is supposed to be no more than the State's summary evidence, sworn to by one of the investigating officers, that form the factual basis for the charge. You're all reading more into the paperwork here than it deserves and much much more than it ever is intended to be. Wait a bit for the trial .. not the discovery, because the defendant's lawyer won't want to share with you - or the NY Times - what his side will present at trial. Same thing with the State, except they might release bits and pieces for the purpose of introducing bias toward conviction on the part of potential jurors. Happens a lot in high-profile cases where the State's case is weak; helps to get a conviction if the jury's ready to say "Guilty" before the first witness is sworn it and testifies, eh?

[Adjoran]

"Profiling" - even of the racial variety - isn't illegal for a private citizen, nor is it an element of any crime alleged. Neither is "confronting" someone, as long as no physical threat is implied. Neither is "following" anyone in the common areas of a private community.

There seems to be no reason at all for including these things.

Some have speculated about the possible second encounter, which supposes Zimmerman followed Martin after the dispatcher said they didn't "need him to do that" - which isn't an instruction of any sort, anyway, much less a lawful police order - to establish some intent or depravity. I don't see how it does that. I don't see how it comes close to doing that.

[narciso]

Bmaz does go to town, yes he asssumes some facts not apparently in evidence (like the skittles), but does raise many of the questions,

The fifth paragraph is the first factually substantive material. It details that Martin was living in the gated community at the time of the event, was returning from the store (with the infamous Skittles) and was unarmed and not engaged in any criminal activity. Then, however, the affidavit blurts out a critical, but completely unexplained and unsupported claim, namely that Zimmerman was “profiling” Martin. It does NOT allege that any such “profiling” had a racial animus or was, in any sense, illegal or improper. This is important because, while it is a rhetorically charged term, profiling is completely legal, whether for police or average citizens, so long as it not based on an improper invidious animus like race, religion, sex, etc. So, with NO allegation of improper animus here, and there is not, the profiling alleged is completely and unequivocally legal. Further, there is absolutely no specific attribution as to where this allegation came from – did Zimmerman admit it, if not what was the basis for the conclusion by the affiants? We have NO idea whatsoever, it is just a raw conclusory statement of absolutely no value whatsoever in its naked state. In short, there is nothing in Paragraph 5 that does anything to actually provide probable cause for the crime charged.

[rse]

Sorry to go off topic but bo's speech to the americas today has some deeply troubling elements.LUN

Even if it doesn't interest you. the beginning about scouting out vacay spots for mo is tone deaf under the circumstances.

[Frau Richterangst]

Thanks for the OT, rse.

[Csnyder]

Dumb question, I'm sure but I keep seeing "LUN". What does that mean?

[Rick Ballard]

Ike,

Thank you for the insight. I've been wondering whether the affidavit might be First Degree Sandbagging. We don't have access to Zimmerman's actual statement or those of the witnesses and without those we have no way of properly assessing his legal peril.

[narciso]

WAs that Sean Spencer of 'Psych' because that might have been me. Cbolt I think referring to O'Mara's commentary, argues that maybe Zimmerman doesn't want to go through a trial,
I can't blame it, it is all noble to say he
needs to clear his name, but the truth doesn't matter, what is the point,

[Frau Grammatik]

Jeez, the passive voice...when will they learn?

[peter]

LUN is link under name. Click on the poster's name and you will be taken to another site.

[narciso]

After having stalled the trade agreement for
three years, it takes chutzpah or whatever
variant to take credit for it, rse, you saw
that link from Zombie, about 'indoctrination
as education;

[Rob Crawford]

I swear, he's so desperate for Zimmerman's blood that if the case is thrown out, buub will head down to Florida to hunt the poor man down himself.

Again, weird how "we just want him arrested; to answer in court" has shifted to inventing "evidence" to condemn a man who just wanted to make sure his neighborhood was safe.

[Clarice]

Narciso's interesting analysis is from emptywheel

Bravo, TM--I have to think that it was blogs like yours that have finally embarrassed the media into acknowledging the truth. They should all hang their heads in shame..Now that they have caused all this trouble for the Zimmermans and the SPD, NOW, they finally admit the case is a steaming pile of carpola.

[narciso]

I should have made that clear, clarice,

[Clarice]

I now it was inadvertent, narciso.

[pagar]

rse, I put a College loan post on the Saturday Morning thread for you.

I agree with you, the President's speech today was deeply troubling.

[cboldt]

-- Cbolt I think referring to O'Mara's commentary, argues that maybe Zimmerman doesn't want to go through a trial .. --

Not me. Others were arguing it might be best for him, as more process results in more public cleansing and a smaller or less aggressive mob. My position is get the hell out as fast as you can. No trial, case dismissed ASAP. I think George agrees. He is unhappy that he was charged.

[Rob Crawford]

I agree, cboldt -- I would hate to know I'm innocent but still have to convince 12 people.

[narciso]

I referenced this event last night, interestingly the official mentioned in the piece, was subsequently executed for collaborating with the previous secret police chief

http://www.time.com/time/magazine/article/0,9171,894104,00.html

[bgates]

Did Zimmerman always report people he saw not walking on the sidewalk? Seems highly doubtftul.
Did Zimmerman always report teenagers he didn't know? Even more dubious.

If Zimmerman didn't always call the police when he saw someone drinking heavily, and he didn't always call the police when he saw someone driving a truck, the only thing that would make him call the police on someone drunk driving an 18-wheeler is racism.

[Porchlight]

The switch to the passive voice

Technically "a struggle ensued" is not the passive voice. But it does allow the writer to very neatly (almost passively!) avoid any positive statement about who threw the first punch.

[cboldt]

bmaz: "In short, it is shit."

Pithy. I like it better than McCarty's "This is nothing but agitprop"

[Clarice]

Breitbart:

"A well-known, mainstream media-vetted college professor named Dr. Boyce Watkins states that it’s time for Trayvon Martin’s parents to “step to the side,” out of an apparent fear that “being honest” could negatively affect the race-baiting political agenda that Obama allies like Al Sharpton have carefully crafted.

Dr. Watkin’s stark admonishment, “Get her off the stage right now,“ came in a recent blog post that shows the goal of the politicization of the Martin shooting is not truth or justice.

Who is Dr. Boyce Watkins? He’s a professor at Syracuse University and his website shows that he’s been a frequent guest on cable news shows, including CNN’s Anderson Cooper 360 and MSNBC’s Keith Olbermann. He is also a frequent speaker on black issues, and his site shows his speeches have earned high praise from well-known leaders of the resentment-driven civil rights movement, including Al Sharpton, Jesse Jackson, and Michael Eric Dyson."

____

Too late, buddy, the tide is finally turning,,

[Clarice]

Funy, I thought "a struggle ensued" was the tipoff to a weak case evading the entire question of self defense and made it the title of tomorrow's column.

[Chubby]

((No trial, case dismissed ASAP. ))

and then Eric Holder is waiting in the wings.

[Porchlight]

You're correct, Clarice. The initiation of the struggle is the crux of the case and the fact that the charging document deliberately avoids identifying the initiator suggests that the prosecution's case is very weak.

But it isn't technically the passive voice. If it said "A struggle was initiated," that would be passive.

[Enlightened]

I do believe it was moi that has said a few times I wonder if Martin left the house to get high. IMO there is no reason to leave that house on foot, in the dark, in the rain, unfamiliar area. And it would explain a lot about Martin being upset about being watched.

[NO_LIMIT_NIGGA]

Did Zimmerman always report people he saw not walking on the sidewalk? Seems highly doubtftul.
Did Zimmerman always report teenagers he didn't know? Even more dubious.
Hoodies? Give me a break.

Old and busted: The proof that Zimmerman is a racist nut job who hunted down Trayvon is that he called the police 46 times!

New and shiny: The proof that Zimmerman is a racist nut job who hunted down Trayvon is that he didn't call the police often enough!

[cboldt]

-- and then Eric Holder is waiting in the wings. --

Might as well get it over with quickly. Holder's going to charge me no matter what.

[Clarice]

What's Holder going to charge on? I do't think he'd dare. With even CBS hightailing it away.

[Porchlight]

And it would explain a lot about Martin being upset about being watched.

Sure would, Enlightened.

[Chubby]

he has promised to do a full investigation to ascertain if any civil rights laws have been breached

[cboldt]

-- What's Holder going to charge on? --

Federal hate crime. He'll have the wind of the mob at his back. Just make a bunch of false allegations that add up to Zimmerman murdered Martin because Martin was black.

Do a fake FBI analysis that has Zimmerman saying "fucking coons," The press seems willing to follow whatever the expert of the day says, and yesterdays certainties are today's falsehoods.

[narciso]

Kevin, 'bless his heart' still comes within a lightyear of the truth, and augurs in;

http://motherjones.com/kevin-drum/2012/04/nras-neverending-campaign-lose-my-support

[Clarice]

I don't think so. It would drive his boss' ratings down even lower and ensure a massive opposition vote turnout along with a storm of legal opposition.Failing to act against the NBPP TWICE has to be this crackpot's limit.

[narciso]

You know even the Reno DOJ wasn't foolish enough to file charges in the Diallou matter,
but they do have a way of 'dialing straight
to eleven' in these matters.

[Clarice]

Sherbet:

https://fbcdn-sphotos-a.akamaihd.net/hphotos-ak-ash4/294997_182414341879202_100831413370829_294627_1800660106_n.jpg

[narciso]

LOL, that was like adorable baby sloth, that
Gutfeld used as a rejoinder to 'Elaine', who is playing a VP dumber than Biden,

[pagar]

Looks like Biden is smart enough to rip US Off.

http://www.whitehousedossier.com/2012/04/14/biden-earned-21000-year-secret-service/

[Enlightened]

I swear the Martin family has known from the get go that they only needed an "arrest". Corey conveniently put profiling in the charging doc. GZ has been railroaded from the instant Crump slithered into the mix . They want someone to sue because they know it was an "accident". Holder is waiting like a vulture. And on top of all that he has allowed the most grievous threats and unmitigated lies to and about GZ to poison the public, probably enough that GZ and his family are in danger of imminent death.

And may I also rebut KK the nutter - Martin could never be or look like Obama's son because he was not White/Black, it is a genetic impossibilty and just goes to show Obama's just a Profiler in Chief.

[Chubby]

George Zimmerman charged: Will that affect civil rights investigation?
News that George Zimmerman was charged with murder won't sway the ongoing federal civil rights investigation, which is looking for evidence that Zimmerman was motivated by racial hatred.

CSM - LUN

[Chubby]

but Enlightened, GZ has no money, so what do they gain? suing the police department or something like that, I can understand. Is that what you are thinking?

[Clarice]

C'mon of CBS is blowing the whistle-and emptywheel--this is almost over. finito. caput.

Time for another diversion.

The war on Woman flopped.

This ersatz rac war is over.
And the Buffett trojan horse class war is hitting the iceburg.

[Clarice]

*If CBS*
*racE war*

[narciso]

That's kind a cul de sac, unlike the previous case, Diallou and Andersen, this isn't department policy, but do the facts matter anymore.

[Chubby]

well, I guess that's good news for GZ then, Lord knows he could use some.

I wonder why CBS used the young Trayvon picture.

[Ralph L]

It would drive his boss' ratings down even lower
If you remember (and I'm sure Axeldick does), it was the "acted stupidly" affair that began O's slide in popularity.

[narciso]

They are insisting the Norwegian Blue is pining for the fjords, but it is indeed a dead
parrot. Rosen having boomeranged on them, in record time.

[Captain Hate]

but they do have a way of 'dialing straight
to eleven' in these matters.

Stedman has done so many dumbass things already; what's another log on the fire?

[Rick Ballard]

Clarice,

It will really be over if Corey hands the case off. It certainly began winding up when the President's adopted son's social media excursions tarnished his halo to the point that it became invisible.

The President's propagandists in the media don't seem to be any brighter or more skillful than he is. It's like watching the Perils of Pauline every week except that rather than the episode ending with her tied to the tracks, we get to watch a hundred car freight train roar over her at full speed. She gets reassembled in time for the next episode but there are always pieces missing.

[narciso]

Yes, it's a bug not a feature with them;

http://macsmind.com/wordpress/2012/04/they-just-dont-know-when-to-quit-wapo-feminista-linda-hirshman-defends-rosen/

Isn't she the head of the University Borg guild

[Enlightened]

Well I am definitely not a legal eagle - but I daresay Crump is in this for the $$$$. It's his MO - so I assume he thinks he can sue someone.

[Gus]

I swear to God, ButtBuster is literally retarded.

[Clarice]

Maybe Axelrod can get some photoshopped pics of the Koch bros. strangling kittens and puppies handed off to the AP and MSNBC.

[PaulV]

Struggle ensued is the "passive aggressive" voice.

[mockmook]

Posted by: narciso | April 14, 2012 at 08:50 PM

I thought you had finally written a comment that I understood, then Clarice spoiled it for me ;)

[Chubby]

Enlightened the only think that I can think of is that the arrest vindicates the original non arrest as an "actionable idea"

[Frau Grammatik]

Clarice, I have it on good authority that the K-brothers bite the heads off fluffy little chicks, especially Rhode Island Reds.

OT - It's PaulV's (funny) fault:
Homer Simpson's Figures of Speech - Tripping Over Tropes With Springfield's Rhetorician
LUN

[Captain Hate]

I swear to God, ButtBuster is literally retarded.

You should've been here when he insisted Afghanistan wasn't in Asia and ridiculed us for thinking it was. The concentrated stoopid almost broke the internet.

[Gus]

What WAR will Republicans be waging on our fellow Americans by this time next week?

I say it will involve dental care.

[Gus]

Afghanistan is in Pennsylvania? Right?

[PaulV]

Western Pennsylvania

[narciso]

Apparently you can't take the Alabaman out of the jihadist, no matter how hard you try,

http://weaselzippers.us/2012/04/14/report-american-al-shabaab-leader-beheaded-by-fellow-jihadists/

[PaulL]

Holder is all talk. He can't do a darned thing to Zimmerman.

[Sylvia]

Thinking about the timeline. We have maybe a 30 second gap in the timeline.

I'm thinking TM just hung around and was speaking to his gf. That is probably why he left the house and took a walk to begin with, to speak with his gf in privacy.

It's probably a small townhouse from the looks of them, no basement, open floor plan, he probably shares a room with his little brother.

So he took a walk to talk on the phone in private and was lingering in the back walkway till he was done talking to her. Not that much of a mystery.

He was maybe a little out of breath from fast walking from GZ and didn't want to heavy breathe on the phone so he paused for a bit.

To think that he took laps around trying to find this guy and jump him is ludicrous, especially as he was busy talking sweet nothings to his girl.

[narciso]

Apparently she hasn't learned anything in 6 years:

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/16/AR2006061601766.html

[Clarice]

Sshhh= You'all write her and tell her to keep it up, please.

[narciso]

They seem to scale up from simple shovel, to
that drilling machine, in that horrible film
'the Core'

[Danube of Thought]

"Profiling helps establish Zimmerman's 'depraved' state of mind."

Wow. Just think of all those depraved guys at the FBI.

[Danube of Thought]

Unless there is an exception to the hearsay rule when the declarant is dead, the jury will never hear Dee-Dee say "Yrayvon said he was running away."

[Fen]

The switch to the passive voice indicates the prosecutor lacks the conviction or evidence to assert that Zimmerman started the fight.

ie. even the prosecution believes there is reasonable doubt.

I would call him on the stand and argue that his affadavit is disqualifying because the State expressed reasonable doubt.

[Danube of Thought]

I'm grateful to Ike for his contribution. I've been assume that, as strange as it looks to non-Floridians, a piece of work like Corey's affidavit has become accepted practice in Florida.

[Danube of Thought]

Just think of all the political capital the Wingmutosphrre has already gotten out of this affair. Now Jeralyn Merritt, Alan Dershowitz and CBS News have joined us.

Say what you will about the Wingnutosphere, we sure do have a big tent.

[Beasts of England]

narciso@11:52 - 'Apparently you can't take the Alabaman out of the jihadist, no matter how hard you try'

I thought you were kidding at first. Not exactly a jihadist petri dish here in the Heart of Dixie...

[MJW]

Unless there is an exception to the hearsay rule when the declarant is dead, the jury will never hear Dee-Dee say "Yrayvon said he was running away."

I don't believe Florida has a hearsay rule for dead declarants, but this rule may allow such testimony:

90.803 Hearsay exceptions; availability of declarant immaterial. The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:

* * *

(3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.--

(a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

1. Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.

2. Prove or explain acts of subsequent conduct of the declarant.

(b) However, this subsection does not make admissible:

1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will.

2. A statement made under circumstances that indicate its lack of trustworthiness.

The bolded statements are to emphasize the possibly applicable language.

[Bruce]

I think that MJW is correct here. While this thread was getting going, I was responding to the question about present-sense-impression and excited utterance hearsay exceptions in the previous thread.

DD shouldn't be able to testify that Martin was running away, eating skittles, or anything of the sort. But, what she should be able to testify to is what he said. Nothing more. And, that includes her conjectures about Martin dropping the phone after being hit, etc. Rather, that she may have heard a thud or hit, and the phone went dead/was hung up. That sort of thing.

[Extraneus]

Clarice's Pieces

I don't know if you can still edit it, Clarice, but it was a "struggle" that ensued.

[Bruce]

There is nothing wrong with profiling, esp. if you are a private citizen. I do it every day - if I see someone's tats, I immediately figure that they are likely a low life, or at least not the sort of company I would prefer keeping. Even more so, big black dudes with gold grills.

A good part of the job of a cop is profiling. They do it constantly, not hassling the 70 year old woman, while keeping a close eye on the 17 year old guy who appears to be aimlessly walking around, or at least not intent on some legitimate goal. And, unfortunately for the black community, a majority of the murders in this country are committed by them, despite being maybe 1/7 or so of the population. And, a large percentage of those are by 17-25 year olds.

It is plain silly to expect that Zimmerman wasn't profiling Martin while he walked through the neighborhood. He wasn't recognized. Was wearing a hoodie. They had had a rash of unsolved burglaries. He was the right age and sex for being above average in suspicion in these areas. I think that most of us here, seeing him that night, would have thought him suspicious, which is why Zimmerman made those calls to the police.

It is just plain silly to think that profiling doesn't happen or is bad. It is based on stereotyping, which is one way that our brains handle and categorize complex information.

Now, the government isn't supposed to profile (but we know that cops do it routinely). This is, BTW, why TSA is so ridiculous - they can't profile, and so have to treat everyone with equal suspicion, regardless of their actual likelihood of being a terrorist. 90 year old grandmothers traveling on round trip tickets purchased months in advance are treated identically to 25 year old freshly shaved Muslim males named after the Prophet, carrying prayer rugs, flying on one-way tickets, paid for with cash, without baggage, etc. All because the TSA cannot profile, in order to keep from upsetting CAIR, etc.

But Zimmerman was not a government employee working within the scope of his employment at the time of his alleged profiling. There was absolutely nothing illegal or wrong with it. The contrary would imply that the government was now allowed to be thought police.

Zimmerman could legally call the police and report a suspicious person. Now, if he said that they were suspicious because they were black, that might cause the police to somewhat discount his call. And, in fact, Whit, a long time cop who posts at volokh.com, has said that he does ask that up front for just that reason. What apparent racial animus does is impact the credibility of the suspicion, but does not negate the ability to relay suspicions to the police. But, of course, in the case of Zimmerman, the race of the suspect apparently came out first in response to the dispatcher asking about the race of the suspect - which, BTW, is a very legitimate question for them to have asked, along with height, weight, sex, dress, age, etc. All basic identifying characteristics.

BTW - I always find it humorous watching the news or reading the paper, and when they are looking for some guy, they may give you height, weight, age, etc., but almost never the race, if the person is Black, despite it often being obvious from the photo provided. They may say Hispanic, White, or Asian (most often meaning Oriental, since western Asians are more likely classified as White). but not Black.

[rse]

Bruce-excellent points but I think TSA does profile. It picks on the least likely to be a terrorist to prove that they are not profiling illegally.

I learned that when my youngest was 5. Blond curls. Looked enough like shirley temple that when she was 3 and saw her on TV, she screwed up her face and said "that's me on tv".

We traveled a lot when she was 5 and I homeschooled the older 2 for a year. Never bothered the rest of us but repeatedly insisted on pulling her away from the rest of us to search her and her pull on.

I guess it was those crayons.

[AliceH]

I am stealing from a commenter from a few weeks back, but I have forgotten who so it is no longer plagiarism

I like it!

Re: "Profiling" - isn't there a counterclaim that could be made by the defense, that Trayvon "Profiled" Zimmerman, and based on nothing but his own assessment of GZs appearance he drew conclusions and took decisive actions that directly led to the fight that "ensued"?

[Clarice]

Ext--Thanks. Gosh--I'll see what I can do.

[DebinNC]

Interesting look at Corey's presser remarks in light of the ABA Standards of Professional Conduct which FL supposedly subscribes to.

[Clarice]

Ext--thanks. We were able to edit it.

[jwest]

I don’t hold much hope for Zimmerman. The case appears to be lost.

This all harks back to Libby, with the grand jury, the three judge panel, agreements between the prosecution and the defense, jury instructions, what witnesses were allowed and a thousand other details. As we JOM followers evaluated at the time what was fact, what was fiction, what the law and the actual charges were, the trial moved on in a totally predicable direction.

Libby, under orders from Dick Cheney and George Bush, revealed the name of a secret agent as punishment for her husband speaking truth to power about the lies that started the Iraq war. It didn’t matter to the jury what Libby was actually charged with or what the evidence was, they went into the trial believing the narrative and nothing that was said in the courtroom was going to change the fact he needed to be convicted of something.

The same procedure is going to be used for Zimmerman. A gutless judge will not throw the case out next week and it will proceed to trial, where a clueless group of citizens who already have made up their minds will pass judgment. Defense arguments will be useless and poor little Trayvon will finally get justice.

[bunkerbuster]

Zimmerman has not been indicted for profiling and no one suggests profiling is illegal.
He's charged with murder. His profiling of Martin supports that he viewed Martin as a threat, which is empirically unreasonable and therefore lays the groundwork for the case that Zimmerman was in a depraved state of mind.
Wake up wingnuts. Stop soaking in your own propaganda -- it's pickling your brain. Do you really think the defense wants to convince the jury of Zimmerman's low level of doubt that Martin was a criminal? Do you want Zimmerman to say that to the jury: "I thought he was probably a criminal because of what he was wearing and the way he was acting?"
Of course they don't want that. They want exactly the opposite. They want Zimmerman rationally following on unimpeachable suspicions -- just checking up IN CASE, something was wrong, not, in hot pursuit BECAUSE HE ACTUALLY BELIEVED a crime was taking place. The defense needs the story to be that Zimmerman was clear in his own mind that he would LET THE POLICE HANDLE IT because the odds were great that it was probably nothing.
As much as wingnuts love the Dirty Harry ethos, that's the last association you want jurors to make with Zimmerman if you're the defense, and the first one you want to make if you're the prosecutor.
The more you persuade the jury that a crime may well have been underway the LESS likely you make it that George "those assholes always get away'' Zimmerman decided to go back to his truck, rather than pursue Martin, especially when the heavy breathing on the 911 call suggests he may have been in hot pursuit of Martin.
But, hey, maybe the defense will fall for that.
Bigoted is as bigoted does and nothing makes an identity conservative more ecstatic than bad math or junk science that purports to show the superiority of white people.
White-Power Preacher Richard Land, head of the GOP's biggest cult, ie the Southern Baptist Convention, said he has "no regrets" about flaunting the fact that he doesn't do math. Land bigotizes: ``A black man is "statistically more likely to do you harm than a white man," he said. "Is it tragic that people react that way? Yes. Is it unfair? Yes? But it is understandable."
If it's "understandable" why "tragic" and "unfair?" Maybe he didn't answer follow-up questions, lol...
But the bigger point is that the odds that a random Afro-American will "do you harm" are infinitesimal. So even if the odds are triple or quadruple that of a white person, they remain infinitesimal, such that profiling based on race is irrational -- especially under the circumstances Zimmerman profiled.
It's like the guy who says he's mathematically justified to invest in lottery tickets because he buys fivetickets, so has FIVE TIMES the chances of all those people who buy just one.
More broadly, the sadly wishful defenders of the murder suspect keep forgetting that the prosecution's side of the story starts with the murder of an unarmed pedestrian who didn't break into anyone's house, didn't have any burglary tools or any stolen property on him, nor any criminal record. IOW, he was totally, indisputable innocent of any crime -- so Zimmerman's belief that he was starts out with a near-fatal flaw. The defense will almost certainly avoid any line of questioning that brings that up...

[cboldt]

-- This all harks back to Libby, with the grand jury, the three judge panel, agreements between the prosecution and the defense, jury instructions, what witnesses were allowed and a thousand other details. As we JOM followers evaluated at the time what was fact, what was fiction, what the law and the actual charges were, the trial moved on in a totally predicable direction. --

Not to retry the case, but I could tell, on reading Fitzgerald's indictment, that Fitzgerald had a good case for Libby having misled investigators.

Wilson's wife's status within the CIA was always irrelevant to the charge; although some people think it should be okay to lie to investigators if what the investigators are investigating isn't a crime in the first place.

For Libby to prevail, you have to believe that he didn't know Wilson's wife worked at the CIA, at the time he told reporters that Wilson's wife worked at the CIA.

The course of the trial was predictable because the evidence supported that direction. But this case is different, in that the charge is not well supported by the evidence.

My point of view (of the Libby case), of course, and has been the subject of many a heated disagreement here and elsewhere.

[bunkerbuster]

To the layman, it would appear the prosecution surely has evidence that it doesn't mention in the affidavit, since it doesn't have to.
Didn't Ike lay all this out?
Unless he's flat wrong about what the affidavit is supposed to include, the no-limit-shystas are getting even weirder than I thought...

[cboldt]

-- The same procedure is going to be used for Zimmerman. A gutless judge will not throw the case out next week and it will proceed to trial, where a clueless group of citizens who already have made up their minds will pass judgment. --

I see two forces that will incline the judge toward rejecting Zimmrman's claim of self defense and requiring a trial. One of them is the ever-present bias to protect the institution. The presumption in favor of a prosecutor is very strong - justified on the principle that no ethical prosecutor would bring a charge unless supported by a good faith belief that it can be proved beyond a reasonable doubt.

The other force is fear of the mob reaction, and this now has national proportions.

[jwest]

Cboldt, The intricacies were argued over months, but the bottom line of both the Libby and Zimmerman cases remains the same.

A hard-nosed “republican” prosecutor brought initial charges against someone who never should have been charged, either for personal political gain or because they believed the country needed to see the trial played out for social reasons.

Everything spins downhill from there.

[Tom Maguire]

But it isn't technically the passive voice. If it said "A struggle was initiated," that would be passive.

Mistakes were made. Corrections may be noted.

FWIWI have added an UPDATE somewhere in the middle on Florida law, the Aggressor, and so on. I start with Dave Kopel and he certainly convinced me, but if my explanations and extrapolations need enhancing, let me know.

[Minimalist Poster]

I think the judge has a financial incentive to deny Zimmerman's self-defense claim and require a trial. Her husband's law partner is commenting on the case for CNN. Even if his consulting fees don't go through the partnership, there's still some financial advantage to the partnership in going to trial and extending the relationship with CNN.

[narciso]

Now, cbolt, the Russians (thanks to Ames) the Cuban DGI, at least knew who Plame was, if one believes Edmonds I don't, the Turks knew
about Brewster Jennings, now Libby did the opposite of Zimmerman, he didn't come forth immediately, and so that gave Comey license
to 'release the hounds' sort of like what Hackman's defense secretary did in 'No way Out' but legally it was an overreach.

[Steve]

Listen to the 911 tapes. At the 3:31 mark, after Martin has run away and Z has lost sight of him, and soon after the dispatcher tells Z he does not need to follow him ... Zimmerman is asked for his name and address. He gives his name and stops at giving his address. He mumbles something to the effect that Martin may overhear him stating his address and he does not want that. The meaning, being, Zimmerman has been walking in the direction of where he last say Martin during this phase of the incident. He is thinking maybe Martin has gotten behind him.

[Steve]

Keep in mind that Zimmerman was questioned by the police at the police station the night of the incident. The police no doubt read him his rights and he waived those rights. ( If he had not answered the questions of the police that night they would not have initially declined to press charges. ) A 2nd degree murderer does not talk to the police without having a lawyer present.

[boris]

Not to retry the case ...

"For Libby to prevail, you have to believe that he didn't know Wilson's wife worked at the CIA, at the time he told reporters that Wilson's wife worked at the CIA."

Before Joe's op-ed Libby's notes confirmed he knew the answer to the question "Why send Joe?" was "Wilson's CIA wife". Small detail ... irrelevant to Libby's job. So he knew but didn't think about it much. Doesn't matter in that time frame how many people told him that detail, it wasn't important.

After the "Cheney behested me to Africa" op-ed the answer to the MAIN STREAM MEDIA demand "Since you sent him why did you ignore his findings and monger for war anyway?" was "We didn't send him, his CIA wife did."

Now the small unimportant detail is a BFD that everybody is talking about. Is it possible that six months later Libby remembers being surprised when he heard about her (again) from Russert or Novak? Is it possible that six months later he does not remember remembering the minor detail just before the story broke?

Maybe not for for a highly organized thinker like ... oh say ... cboldt, but what about Sandy Berger ??? hmmmm ??? Everybody who knows Sandy (heh heh heh) knows his office is complete chaos and he probably just stuffed all those classified in his socks and underwear by accident.