Peace, But No Justice
Since George Zimmerman was charged with second-degree murder in the death of Trayvon Martin, very little information has been released about the case, primarily because very little is known for a fact. Today, Zimmerman’s defense attorney asked that the records be kept sealed in order to preserve the case and also to ensure the safety of the witnesses.
There are some facts, not directly related to information about the case, that were not widely reported by the Media, but have been made public thanks to the National Review’s Andrew McCarthy in his column a few days ago.
He writes that, “The affidavit is stunningly weak and unethical. 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. “… 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. “…we haven’t been informed of Zimmerman’s statements to the police…[suggesting] 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).
3. “…the affidavit [is described by another critic] 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. “… [the other critic] 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. “…[The other critic] 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, [the other critic’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.”
McCarthy believes the state attorney general may be pressuring Zimmerman with second-degree murder to plea down to the lesser charge of manslaughter – which indicates her case against him is even weaker than manslaughter. McCarthy says he is confident about one thing, at least. “There is not probable cause,” he writes, “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 I were a cynic,” he says in conclusion, “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.”
There’s more to McCarthy’s column dealing with the shooting of an unarmed man. This is just to whet your appetites to read his full article and to be aware that while we seem to have peace, we do not have justice by any means. In Constitutional America, a man is innocent until he is proven guilty.