I strongly disagree with David French’s analysis. I’m inclined, instead, to agree with commentators ranging from former Reagan Justice Department official Mark Levin to Harvard’s Alan Dershowitz that the affidavit is stunningly weak — “unethical,” as Prof. Dershowitz puts it. In fact, I go further (which, after nearly 20 years of writing and supervising the writing of complaint affidavits, I think I’m qualified to do). This affidavit is not law, it is agitprop: invoking, for example, the explosive term “profiled” but carefully avoiding any discussion of what it means and failing to note that (a) there is no evidence of racial profiling, and (b) absent an invidious racial component there is nothing wrong with profiling (indeed, we want police to do it so that innocent people don’t get hassled).
A few points:
1. David makes much of the fact that Zimmerman may have continued to follow Martin despite a dispatcher’s admonition to the contrary. But a citizen engaged in innocent behavior (including investigating a potential crime) is not required to heed a dispatcher’s advice. If Martin had disregarded the direction of a police officer on the scene, that might be different. But no one is required to act on a dispatcher’s direction, even if it would be prudent to do so. Bad judgment is not a crime.
2. David observes that we haven’t been informed of Zimmerman’s statements to the police and then oddly suggests that this is a fact in the prosecutor’s favor. There are ambiguities in the complaint that more information could have cleared up. The prosecutor has more information. Yet, she chose to leave matters ambiguous. That strongly suggests the additional information would hurt the prosecution’s case — a suggestion that is bolstered by the affidavit’s self-serving omission of any mention of Zimmerman’s injuries (and, for that matter, by the fact that the prosecutor chose not to submit the case to a grand jury but, instead, unilaterally decided to charge base on ambiguous allegations).
#more#3. David strangely describes the affidavit as “agnostic” on the matter of who initiated the “struggle.” But as we all know, prosecutors do not get to be agnostic. An ethical prosecutor does not charge unless he is personally convinced that the evidence establishes all key elements of the cited offense, as defined by the legislature. If he has such evidence, a probable cause affidavit is the vehicle for leveling allegations with clarity, not fudging them.
4. David uses the prosecutor’s fudging to conflate “confrontation” and “struggle” — as if we should now assume that Zimmerman initiated a physical assault on Martin. To the contrary, it is reasonable to assume that if the prosecutor had evidence that Zimmerman physically attacked Martin, she would say so. Instead, the prosecutor cagily says, “Zimmerman confronted Martin [note the active voice is used when nothing criminal is claimed — “confronting” someone is not a crime] and a struggle ensued” [as if the struggle, presumably meaning the physical encounter, happened spontaneously — no one is identified as initiating it]. If I ask, “What are you doing?” and you respond by punching me in the nose, and this leads us to grapple, my having confronted you does not alter the fact that you are responsible for the ensuing struggle. Again, we know that the prosecutor has an account from Zimmerman — and perhaps from other witnesses — and thus probably has a good idea of exactly how the physical altercation started. Yet, she knowingly withheld that information (in addition, again, to the information about injuries sustained by Zimmerman).
5. David wildly overestimates the likely impact of testimony from Martin’s mother to the effect that she recognizes her son’s voice on recorded cries for help. It is not a pleasant experience to cross-examine a mother, but experienced trial lawyers do it all the time and they tend to be very effective in highlighting the mother’s obvious bias without being disrespectful or insensitive. The affidavit says there were “numerous” calls for help, “some” of which were recorded. Neither the affidavit nor the mother’s information discounts to possibility that Zimmerman called for help. More importantly, unlike the audience for this affidavit, a trial jury would not get the mother’s information in a vacuum. Jurors would get to put the mother’s information in context with other relevant proof — evidence of Zimmerman’s injuries, probably Zimmerman’s testimony, accounts from other witnesses, and forensics about the relative positions the combatants were in when the fateful shot was fired. Again, it is more than a little curious that the prosecutor has declined to reveal any of that information even though she obviously has a lot of it. This shooting did not happen yesterday — it happened nearly two months ago.
6. Finally, David’s summation just confuses matters. He declares that “there’s probable cause for an arrest (and it’s really not close).” But prosecutors are not supposed to authorize arrests based on bromides like “When an armed man shoots an unarmed man … charges are expected and routine.” Prosecutors actually have to identify a specific charge and present evidence that establishes probable cause for each essential element the legislature has prescribed in defining that charge.
Conveniently, David neglects to specify a Florida statute for which he thinks there is such patent probable cause. Maybe there is one — although, having perused them, I doubt it. But one thing I can say with confidence is that there is not probable cause in that affidavit for the charge the prosecutor has selected, second-degree murder. It requires proof of depraved indifference to human life. Nothing in the affidavit, and nothing we otherwise know about Zimmerman, indicates such a state of mind — and it’s really not close.
If David had said there was arguably probable cause for a charge of manslaughter, I could at least have seen his point. Florida law makes causing the death of a person under the age of 18 manslaughter, provided there has been “culpable negligence.” It also criminalizes as manslaughter the “unnecessary killing” of a person in order to resist or prevent that person’s violation of law (e.g., the use of lethal force to repel a clearly non-lethal threat).
Neither of these charges would have been a slam-dunk; indeed, they’d be losers if Zimmerman shot because he was justifiably in fear of his life. But certainly an arrest could be rationalized if you think, as David appears to think, that when an unarmed man has been killed by an armed man, a prosecutor should have wide latitude to bring charges on the less burdensome “probable cause” standard — with the understanding that, at the eventual trial, where the defendant will have the added protection of a higher “beyond a reasonable doubt” standard, a jury presented with all the evidence (not just the prosecutor’s unchallenged version) can sort out whether the use of force was justifiable. But you never get to that point unless the prosecutor can cite a charge for which he at least arguably has probable cause. You don’t get to make an arrest just because your intuition tells you what happened was really bad and screams out for an arrest.
If I were a cynic, I’d say that an ambitious special prosecutor — exploiting the rabble-rousing of the U.S. attorney general and the racial grievance industry — filed an exceedingly serious charge for which she lacks evidence, second degree murder, in order to bask in the mob’s adulation while pressuring Zimmerman to plead guilty to a lesser charge, manslaughter, on which the special prosecutor runs a high risk of losing if Zimmerman forces a trial. So I’m sure glad I’m not a cynic.