Walking Papers? The Incredibly Thin, Speculative Zimmerman Affidavit

Last week, Florida prosecutor Angela Corey stunned many within the legal establishment when she announced her office was filing a second-degree murder charge against George Zimmerman. The four-page affidavit of probable cause filed by Corey’s office shocked legal experts, ranging from liberal Harvard law professor Alan Dershowitz and liberal law blogger Jeralyn Merritt to conservative former prosecutor Andrew McCarthy and talk show host Mark Levin, among others.

The affidavit starts out typically, listing the names and qualifications of the two investigators used by the special prosecutor. It then begins to build a case against George Zimmerman:

On Sunday 2/26/12, Trayvon Martin was temporarily living at the Retreat at Twin Lakes, a gated community in Sanford, Seminole County, Florida. That evening Martin walked to a nearby 7-11 Store where he purchased a can of iced tea and some Skittles. Martin then walked back to and entered the gated community and was on his way back to the townhouse where he was living when he was profiled by George Zimmerman. Martin was unarmed and was not committing a crime.

Not one paragraph into the “meat” of the affidavit, Corey’s team already made two unsubstantiated claims.

First: there is no publicly known evidence that supports the contention that Zimmerman “profiled” Trayvon Martin. Zimmerman’s 911 call made no reference to skin color or apparel until the police dispatcher started pressing for a better description. If Corey’s team had evidence that Zimmerman racially profiled Martin, they should have included it here. They did not, which not only undermines the profiling charge in this case, but in any federal civil rights case the U.S. Department of Justice may have been considering.

The second unsubstantiated claim: They say Martin was not committing or preparing to commit a crime. Zimmerman became suspicious because he saw a figure who struck him as a person casing houses for burglary potential. Unbeknownst to Zimmerman at the time was the fact that Martin had been suspended from school for the possession of a “burglary tool.” We don’t know what Martin was thinking, but his actions were erratic enough to prompt George Zimmerman to want police to investigate.

That represents a lot of unsubstantiated speculation by a prosecutor trying to build an affidavit to support a second-degree murder charge, and that’s just from the first substantive paragraph.

The next troublesome claim is the lead sentence of the following paragraph:

Zimmerman, who also lived in the gated community and was driving his vehicle, observed Martin and assumed he was a criminal.

Perhaps it is hair-splitting, but there is no evidence to support Corey’s claim that Zimmerman assumed Martin was a criminal. In his first comments on the 911 call, Zimmerman claims he saw “a real suspicious guy” acting erratically:  “Like he’s up to no good or he’s on drugs or something. It’s raining and he’s just walking around looking about.”

Zimmerman was merely reporting suspicious behavior, just as our own Department of Homeland Security advocates with its “If You See Something, Say Something” campaign, which has been created and promoted by cabinet officials appointed by the Obama administration. Zimmerman saw someone acting suspiciously, and did precisely what DHS Secretary Janet Napolitano wants citizens to do in that situation.

The prosecutor then made another claim not supported by the recorded evidence:

The police dispatcher then informed Zimmerman that an officer was on the way and to wait for the officer.

The second half of that claim is a complete and apparently willful misrepresentation of the conversation between George Zimmerman and the police dispatcher. The closest the dispatcher ever gets to telling Zimmerman to “wait for the officer” was when Zimmerman was attempting to follow Martin, and the dispatcher told him, precisely: “Okay, we don’t need you to do that.”

In response to the dispatcher’s comment — which isn’t a command, but an ambiguous statement — Zimmerman’s response is “Okay,” and an immediate termination of his attempt to follow Trayvon Martin.

Zimmerman spends the next 93 seconds — more than enough time for Trayvon Martin to reach where he is staying, even at a walking pace — in one location talking to the police dispatcher, informing the dispatcher that he is on the way back to his truck, and that he will meet the responding officer by the mailboxes.

Angela Corey’s team is misrepresenting the actual events as they occurred in order to fabricate a claim that George Zimmerman disobeyed police orders. Proving her behavior is one matter, but to be found deliberately misrepresenting the evidence is certainly grounds for considering disbarment.

The affidavit contained further problematic statements. The next one:

During the recorded call Zimmerman made reference to people he felt had committed and gotten away with break-ins in his neighborhood. Later while talking about Martin, Zimmerman stated “these a**holes, they always get away” and also said “these f***ing punks.”

John Work, a multi-decade law enforcement veteran, caught something in this prejudicial paragraph that I’d missed on my first reading:

Either Zimmerman and the investigators who wrote the affidavit knew there had been burglaries in the neighborhood, or they did not know about any burglaries. It’s not possible to credibly say that anyone, including the defendant, felt that crimes had been committed. If, in fact, there was or was not a series of unsolved burglaries in that neighborhood, the cops should have included that fact in the affidavit. It’s a lie of omission, either way.

Corey’s affidavit then made even more unsubstantiated claims:

Zimmerman got out of his vehicle and followed Martin. When the police dispatcher realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that and that the responding officer would meet him. Zimmerman disregarded the police dispatcher and continued to follow Martin who was trying to return to his home.

The affidavit’s claim is in direct opposition to the facts as recorded on the 911 call.

Zimmerman was not “instructed” of anything. The use of that particular word creates the impression that Zimmerman was affirmatively told — commanded — not to do something. That isn’t what occurred. The dispatcher spoke ambiguously: “We don’t need you to do that.”

Then, the affidavit makes the completely unsupported claim that Zimmerman continued to follow Martin, even as the 911 call indicates that he stopped following Martin and was stationary for more than a minute and a half before attempting to return to his truck to meet with the responding officer. This, again, appears to be a misrepresentation by the prosecutor, unsupported (and possibly refuted) by the known evidence.

The affidavit also makes the completely unsupported claim at the end of that paragraph that Martin “was trying to return to his home.”

There is no evidence of the sort. The timeline strongly suggests that — having evaded Zimmerman initially and with Zimmerman terminating his pursuit and then heading back the way he came — Martin had plenty of time and a direct, unobstructed path home had he chosen to return directly home. We don’t know where Martin was or what he was doing between the time he fled Zimmerman and when the confrontation began. What we do know is that Martin had an opportunity to make it home, and chose not to do so for reasons we may never know.

The affidavit continues:

Zimmerman confronted Martin and a struggle ensued. Witnesses heard people arguing and what sounded like a struggle. During this time period witnesses heard numerous calls for help and some of these were recorded in 911 calls to police. Trayvon Martin’s mother has reviewed the 911 and identified the voice crying for help as Trayvon Martin’s voice.

“Zimmerman confronted Martin.”

This is supposition, apparently based upon the recollection of Martin’s girlfriend. There is no physical evidence or eyewitness supporting this charge.

The next part of that crucial sentence has already been ripped apart by legal experts — the passive “and a struggle ensued.”

This entire case hinges upon who started the confrontation and then escalated it into a deadly force event that left a young man dead. If the prosecution has evidence that Zimmerman indeed triggered the confrontation and initiated the struggle, then Zimmerman’s self-defense claim becomes much harder to support. If the events occurred as Zimmerman described it — with the confrontation initiated by Martin, the physical assault initiated by Martin, and Martin then escalating the fight to assault with a deadly weapon by attempting to smash Zimmerman’s head on the concrete — and the evidence supports Zimmerman’s claims, then we have a justified use of deadly force in self-defense.

Sybrina Fulton’s contention that the voice she heard crying for help on the 911 calls was her son certainly adds emotional pain to the case; her claim is not one I would personally wish to challenge at a trial if she is called as a witness. However, competent attorneys routinely cast doubt on such testimony, perhaps by citing confirmation bias and the trauma of losing a child. No known audio experts have come forth to claim they can confirm with any degree of certainty that the voice calling for help is Martin’s. I would venture that Fulton’s claim is included in the affidavit only to elicit an emotional response from the public, which would be a grandstanding ploy, and perhaps an especially cynical one by a veteran prosecutor seeking reelection just a few months from now.

There are simply no facts in this affidavit to remotely support the charge of second-degree murder according to Florida’s statute, which reads:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree …

There is nothing in this affidavit nor among the publicly known facts about the case — nor even among the allegations from the victim’s family or their attorneys — that comes even remotely close to reaching the “depraved mind” standard. At most, the prosecutor would face making a difficult manslaughter case, and even then would risk having the lesser charge thrown out for insufficient evidence.

I am comfortable with saying that Corey’s multiple references to “justice for Trayon” during her press conference combined with this breathtaking affidavit strongly suggest a political motivation.

I live and work in central North Carolina, just miles away from where an overzealous, politically minded prosecutor named Mike Nifong attempted to railroad athletes from the Duke University lacrosse team in a similarly racially charged environment just a half-decade ago.

Nifong was disbarred and found guilty of criminal contempt for his actions. Angela Corey’s affidavit against George Zimmerman looks to be treading dangerously close to that same path.