Andy, thanks much for your response to my initial post. In addition to your comprehensive and thoughtful comments, some of our good and kind NRO commenters have decided that I’m suffering from “Stockholm Syndrome” (though it’s not clear who’s holding me hostage), that I have no conception of how real people live because I live in New York in a doorman building (I actually live in rural Tennessee on a three-acre lot across from some beautiful, rolling corn fields), and that I somehow believe that probable cause exists for Zimmerman’s arrest on second-degree murder charges because of my religious faith and desire to appeal to black voters. In other words, I think I struck a nerve.
Let me back up for a moment. Like you, I have almost 20 years experience in writing and supervising the writing of complaints, affidavits, and various other forms of charging statements and ancillary documents (20 years exactly if you count my first attempt — in 1992 — at writing such a document as a rather inept law student interning for the U.S. Attorney in Boston). Like you, I would never file anything like the probable-cause affidavit in this case. I was being charitable in my post when I said that it was “quite brief and lacks detail.” I won’t go so far as Dershowitz and call it “unethical.” I hold Professor Dershowitz in very high regard — and no one questions his skills as an attorney — but he’s hardly known for his understatement. In reality — and this is a sad reality — that affidavit is not outside the norm in many state court criminal proceedings.
Of course the prosecutor is going to have to come forward with more — much, much more — if she hopes to secure a conviction for second-degree murder. And it’s likely that a competent and energetic defense will force her to reveal her evidentiary cards sooner rather than later. It is also quite possible that her evidence in support of her assertions is thin indeed, and she’s pushing the envelope for bargaining position in the course of a potential plea bargain. And one can’t rule out the possibility that she knows she has nothing like the evidence necessary to support her factual assertions, and she’s merely made a cynical political move. We’ll find out soon enough.
But resolving those questions wasn’t the purpose of my original post. The purposes of the post were to note the key factual assertions she made, to argue that these assertions constitute probable cause (which, as you know is a quite low threshold; in fact, a judge in the case has apparently already found probable cause to support the charge), and to emphasize that there’s much we still don’t know. Much of the debate in this case has centered around three questions: Did Zimmerman pursue Martin? Did Zimmerman initiate a confrontation with Martin? And was it Martin or Zimmerman who was crying for help? Those of course are not the only important questions in the case, but their importance can’t be doubted.
Let me paint a picture for you that I think would constitute second-degree murder even if Martin initiated physical contact (Incidentally, I agree that the prosecutor’s use of passive voice to avoid assigning responsibility for the “struggle” leads one to believe it was Martin). Trayvon Martin is walking back from a convenience store to his father’s girlfriend’s house, talking to his girlfriend on his cell phone. It’s dark, and he notices he’s being followed. He expresses alarm that he’s being followed to his girlfriend and is scared enough to run away. The person following him begins to run also (Incidentally, does anyone want to argue that this isn’t a disturbing scenario for a young kid?). Eventually, an obviously angry (“f**king punks”) Zimmerman catches up to him, and shouts at him (at least one witness indicates she heard shouting before sounds of a fight). Frightened and perhaps even seeing Zimmerman’s gun, Martin strikes or pushes Zimmerman in a reasonable act of self-defense while calling for help (the same witness said she thought it was Martin calling out). A fistfight ensues, and Zimmerman pulls his gun. Martin continues his cries for help. Zimmerman shoots Martin.
Andy, I think you’re glossing over Zimmerman’s pursuit when you describe Zimmerman as “a citizen engaged in innocent behavior.” No, chasing someone at night (or anytime) is threatening behavior. In fact, depending on what Zimmerman said to Martin or Zimmerman’s actions (perhaps showing his gun), his behavior could conceivably constitute an assault under Florida law even without striking Martin first.
Several weeks ago, my teenage daughter was out walking at dusk with a friend (as I said, we live out in the countryside), when a pickup truck slowed down and began tracking her speed — slowly following. My daughter was terrified. Why would a truck be following her in the evening? Fortunately, my wife was close by, came over a small hill while walking our dog, saw what was happening, and began shouting at the pickup truck. It pulled away, rapidly. Was the driver of that pickup a “citizen engaged in innocent behavior?” Perhaps in the most legalistic sense. But my daughter felt rightly threatened. Now imagine that she felt frightened enough to run away and someone got out of the truck and ran after her? Wouldn’t that escalate the situation dramatically?
I’d feel entirely comfortable arguing to a jury that a person is perpetrating an “act imminently dangerous to another and evincing a depraved mind regardless of human life” when, fully-armed, they initiate an evening foot pursuit of a citizen who truly is “engaged in innocent behavior,” angrily confronts that person, and then shoots them while they scream for help after (apparently) losing a fistfight. I might lose that case, but it’s an argument I’d be more than willing to make if the evidence supported it. Chasing a kid who is doing nothing illegal through your neighborhood is utterly reckless and imminently dangerous, doing it while presuming he’s a “f**king punk” is evidence of a depraved mindset, and pulling your gun in a fistfight and shooting while the kid screams for help? Well, if those are the facts, then that shows no regard for human life.
It would be nice if the affidavit were better substantiated (or even decently well-written, for that matter), but we know where the prosecutor stands on several key questions, and she is certainly going to have to produce more evidence or her case will go down in a ball of flames. There’s more than one cynical read on this case, and it strikes me that a read as likely as (if not more likely than) Andy’s is that local law enforcement grotesquely fumbled the initial charging decision through possible incompetence, inattention, or worse and is only just now beginning to do its job — spurred on by the white-hot glare of activists both well-meaning and opportunistic. Thankfully, however, we have an adversarial system (as imperfect as it is) that gives justice a fighting chance and all sides will soon see all the evidence there is.