Thursday, June 6, 2013

Fallible Cause Affidavit - George Zimmerman Charged with Second Degree Murder

Probable Cause Affidavit charging George Zimmerman with Second Degree Murder.  There are many followers of this case that have been around since the beginning and will likely find no new information in this particular piece, however, there will be many who are new to the case looking for case information when the trial starts; this is for them. 

What are the criteria for 2nd Degree murder?
Florida Attorney Richard Hornsby briefly explains:
Murder with a Depraved Mind
Murder with a Depraved Mind occurs when a person is killed, without any premeditated design, by an act imminently dangerous to another and evincing a depraved mind showing no regard for human life. See also: 
George Zimmerman, however, claims he shot Trayvon Martin in self-defense:
Use of force in defense of person.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other's imminent use of unlawful force. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
History.--s. 13, ch. 74-383; s. 1188, ch. 97-102.
Now, the Probable Cause Affidavit submitted by Angela Corey, State Attorney, Florida

Angela Corey Announcing Charges (PBS)

Transcript of Angela Corey's announcement:
If you have studied the discovery documents in this case, and there are many, you would question the ground for a second degree murder charge as it is outlined in this affidavit.  I will explain my take:

  1. Trayvon Martin was not temporarily "living" in the condominium community.  He was visiting, by all accounts (except early media), his father's girlfriend's home.  No one there knew who he was except his father, his father's girlfriend, and her young son.  Perhaps the State got this information from Trayvon's parents in an effort to make it seem that George would likely have seen Trayvon on a previous occasion, but for the sake of being accurate, this sentence is incorrect.
  2. Trayvon was carrying Arizona Watermelon Juice.  Nowhere on the can does it indicate "iced tea".  There is no excuse for this misstatement if the prosecutor viewed the crime scene  pictures - the can was sitting atop Mr. Martin's body in one of those photos.  For whatever reason, this was not only misstated in the probable cause document, it has been misstated continuously in every form of media and even by attorneys for both sides since day one.
  3. Where he was living was with his Aunt in Miami Gardens due to being kicked out of his own house by his mother just prior to his trip to Sanford.  Again, perhaps Corey got her information from the parents - perhaps they didn't want to divulge the truth because of appearances or on the advice of their lawyers and publicist.  Either way, this is not correct and implies residents could have been familiar with his presence on the property.  Point #4 is a great example of why the fact that he did not live there is important to the overall picture this document paints.
  4. "Zimmerman, who also lived in the gated community" "assumed Martin was a criminal".  This implies a commonality between Zimmerman and Martin that did not exist.  It is like saying they both visited the mailboxes, used the pool, walked in the same courtyard, attended community meetings, spoke to some point were bound to have at least seen one another.  Trayvon had been to Sanford once.  When George saw him he had been visiting his dad for five days.  "Assumed Martin was a criminal".  This quote implies George took for granted that Trayvon had a history of crime prior to February 26, 2012.  George stated he did not know Trayvon prior to that night during his police interrogations.  George viewed Martin as suspiciousHaving or showing a cautious distrust of someone or something.
  5. Zimmerman was never told to wait for an officer.  In fact, at the end of the non-emergency call, the dispatcher asked Zimmerman if he still wanted the police to come because George told the dispatcher he could no longer see Trayvon.  George told the dispatcher to send someone anyway, thankfully.
  6. I have a problem with this line because if Trayvon was scared, why would he confront Zimmerman instead of going home in the two minutes George lost sight of him?  Seventy yards was all he had to travel.  This witness was not vetted in the least before State Attorney Bernie de la Rionda decided to add her to the charging document.  There are many problems with this witness as regards her credibility, none of which would have been difficult to discern by simply asking for her identification when he interviewed her (de la rionda).  I have a problem with this line because if this 18 year old woman heard fear in her "boyfriend's" voice while a "weird" man was "chasing" him, why in the hell did she not immediately call 911 instead of never telling anyone, until asked a month later, that she had been on the phone with him that night?  This witness had, and has, no credibility.
  7. Again, "assumed he was going to commit a crime". Assuming is to probable as possible is to suspect.  If I witness a blue Altima with a missing headlight running over someone and then fleeing, will I then assume every blue car I see with a missing headlight is the runaway car?  I might suspect every blue Altima with a missing headlight, but I wouldn't assume and block them in a parking spot - I would keep an eye on the car until police could investigate.
  8. There is no way for the prosecutor to know whether or not Zimmerman "disregarded" the dispatchers suggestion that he not follow Trayvon.  Zimmerman said "ok" to the suggestion.  The dispatcher suspected Zimmerman might be following because of a change in the ambient sounds on the phone - you could hear the sounds of a car door opening and wind in the phone.  Once Zimmerman said "ok", it was obvious to anyone listening to the non-emergency call, the sound of wind rushing into the phone's mic and George's voice went back to normal.  The dispatcher continued to ask George questions for another almost two minutes and never mentioned it again.
  9. Witness #8, mentioned in this document, said Trayvon approached George and asked what his problem was.  George said Trayvon came up from behind him and asked "what the fuc* is your problem.  To me, this was confrontational on Trayvon's part. Why would the prosecutor completely ignore the statement from both George and witness #8 and come to his own conclusion with absolutely zero proof that George confronted Trayvon?
  10. Trayvon's mother reviewed the 911 calls and identified the cries for help as being from her son.  What the prosecutor leaves out of this document is the fact that Tracy Martin gave a definitive and expedient "NO" when asked if those cries were Trayvon's.  Jahvaris Martin, Trayvon's brother said he couldn't be sure.  George's dad said the cries for help were those of his son.  His mother was not asked by investigators. Witness #14 said he saw the man in the red shirt (Zimmerman) lying on the ground asking for help. If the prosecutor is supposed to err in favor of exculpatory evidence, he certainly failed to do that here.

"Profiling" is also mentioned in the affidavit and I don't find a problem with that save the fact that profiling is not a crime.  There were several burglaries in the community committed by black youth - I defer to my blue car analogy above - he had every reason to be suspicious of a black youth lingering in the rain, checking out houses.

As one of the cited blogs below points out, the only thing this document proves is that a homicide occurred - that is, one human being killed another human being.  No depraved mind or other crime, save the assault by Trayvon, was committed.  The prosecutor completely ignored the exculpatory evidence that was available to him at the time he authored this document - the photos of George Zimmerman's injuries  and the witnesses who saw George being assaulted by Trayvon.  

I'm no attorney, I just get corrected by them, so, for a legal take on this document, see  Zimmerman: Anatomy Of A Deficient Probable Cause Affidavit written just a few days after the arrest.

Then there is the famous opinion by Allen Dershowitz who called the document “thin" and "irresponsible” - “There’s simply nothing in there that would justify second degree murder.”

This opinion caused Angela Corey to write his superiors at Harvard a scathing email (for all the good it did her).

Attorney Richard Hornsby: Legally, who is the first aggressor 

And most recently from Attorney Andrew Branca:
Getting to Murder 2: Finding George Zimmerman’s “Depraved Mind”