Critiques of Zimmerman affidavit

Jim H. writes:

For a great critique of the infamous affidavit, see “How Not to Draft A Probable Cause Affidavit.” Written by an attorney who deals with the federal system, it provides a fairly detailed account of the flaws in the document.

MBS writes:

Here is Andrew C. McCarthy’s view of the Affidavit.

LA replies:

I would note that McCarthy’s article consists of a reply to his NRO colleague David French, who believes that the argument for arresting Zimmerman for second degree murder is so strong that “it’s not even close.” Meaning that French is of the same kidney as Al Sharpton ally Rich Lowry. French and Lowry, along with Sharpton, believe, without any evidence, that Zimmerman followed Martin, provoked a confrontation with him, and murdered him. This is the company Andrew McCarthy keeps. I think that instead of trying endlessly and almost totally unsuccessfully to correct the thinking of his limp-wristed, left-leaning NRO colleagues on the Zimmerman case, on Islam, and on other issues, McCarthy should be writing at a decent publication. NRO is not that publication.

LA writes:

And here is Mark Levin’s discussion of the avidavit on his radio program.

Also, there are many more comments that have come in on the Zimmerman case during the last 24 hours that are yet to be posted, plus some new items by myself that are yet to be written. I’ll try to get to them tomorrow.

- end of initial entry -

April 17

Jim H. writes (several of Jim H’s e-mails over a few days are here compressed into one):

A critique of the affidavit by John Lott at National Review.

And here’s one at American Thinker, by John Work, criminal investigator. It’s nicely written, with a few observations that were new to me.

Also this, from Powerline: “What Does the Prosecutor Have On George Zimmerman?”

Here is a paragraph-by-paragraph critique of the affidavit written by an attorney with a criminal defense background (from what I could tell in the comments following the post).

A couple of samples:

A probable cause affidavit is exactly what it sounds like, a sworn affidavit delineating probable cause in a criminal case—whether it be to search a place, arrest a person or charge a crime. Whatever the particular purpose, the affidavit must delineate the factual basis to support the specific legal action sought to be pursued by the state. And the general principle common to all such affidavits, whether for search, arrest or charging, is that it must “stand on its own” based on “what is within its four corners”. In lay terms, that means there must not only be sufficient information to cover all requisite elements necessary for the action, all such support must be actually in the affidavit—not in some extraneous place or with some extraneous source….

Paragraph 5: The fifth paragraph is the first factually substantive material. It details that Martin was living in the gated community at the time of the event, was returning from the store (with the infamous Skittles) and was unarmed and not engaged in any criminal activity. Then, however, the affidavit blurts out a critical, but completely unexplained and unsupported claim, namely that Zimmerman was “profiling” Martin. It does NOT allege that any such “profiling” had a racial animus or was, in any sense, illegal or improper. This is important because, while it is a rhetorically charged term, profiling is completely legal, whether for police or average citizens, so long as it not based on an improper invidious animus like race, religion, sex, etc. So, with NO allegation of improper animus here, and there is not, the profiling alleged is completely and unequivocally legal. Further, there is absolutely no specific attribution as to where this allegation came from—did Zimmerman admit it, if not what was the basis for the conclusion by the affiants? We have NO idea whatsoever, it is just a raw conclusory statement of absolutely no value whatsoever in its naked state. In short, there is nothing in Paragraph 5 that does anything to actually provide probable cause for the crime charged.

Here’s another, from the blog of an attorney in Florida:

Jim H. concludes:

My humble opinion:

I find the language of the affidavit very interesting, as it appears to say something while not really saying anything at all. Imagine history written in the style of the affidavit:

The War in the Pacific: “The United States profiled Japan. The United States confronted Japan and a struggle ensued.” John the Baptist: “John the Baptist profiled Herod. John confronted Herod and a struggle ensued.” North Africa: “General Patton profiled General Rommel. Patton confronted Rommel and a struggle ensued.”

After six weeks of investigation the affidavit says more about the snack foods purchased by Martin than it does about the encounter that led to his death. What’s wrong with this picture?

Alexis Zarkov writes:

As pointed out by a number of commentators, including Harvard Law Professor Alan Dershowitz, the Florida Special Prosecutor’s Affidavit of Probable Cause is weak. I think it goes beyond weak, and actually states false, or at least misleading information. The Affidavit states, “When the police dispatcher [Shawn] realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that, and that the responding officer would meet him.” An Unredacted recording is available on the Internet here. At two minutes and 23 seconds into the recording, Shawn asks, “Are you following him?” Zimmerman answers “yeah” or “yep” and then Shawn says, “We don’t need you to do that.” Zimmerman responds, “Okay.” Shawn then asks for Zimmerman’s name and telephone number and Zimmerman tells him. Then Shawn asks Zimmerman if he wants to meet the police car that’s on the way. Zimmerman says he does, and Shawn asks if Zimmerman wants to meet the police at “the mail boxes,” and Zimmerman says “That’s fine.” The Affidavit makes Zimmerman sound defiant and uncooperative, where according to the recording, it’s exactly the reverse. In fact Shawn did not “instruct” Zimmerman not to follow Martin, he simply advised him it wasn’t necessary. Moreover Zimmerman agreed not to follow Martin as shown by his saying “okay.”

The Affidavit uses the emotionally charged term “profiled,” suggesting racial profiling, when Zimmerman simply gave Shawn a physical description of Martin as any prudent person would do in his situation. Moreover it seems that Corey is relying on the mobile phone conversation between Martin and his girlfriend to reconstruct what happened. But whatever Martin told her might be hearsay, and thus inadmissible as evidence at trial. However the hearsay rule has many exceptions, one of them being “excited utterance.” The theory behind this exception assumes that anyone responding to a sudden shocking event is likely telling the truth. So if Zimmerman suddenly appeared and Martin told his girlfriend something like, “someone is coming at me with a gun,” that could be admissible evidence. Let’s not forget that girlfriend came up with this conversation weeks after the event, and could have received coaching as what to say, or simply made some of it up. If this case goes to trial, and the conversation is both admissible and relevant, then Zimmerman’s lawyer will have to discredit her with cross examination or private detective work.

Finally the Affidavit seems slapdash in its drafting, and in places ungrammatical, using “suspicious” instead of “suspiciously.” Considering the attention and scrutiny this case is getting one would think Corey would have produced a much more polished document. She’s off to a bad start, although she can amend and resubmit the Affidavit later.

Neil Parille writes:

Interesting to compare it with the initial indictment of Casey Anthony.

And here is a second degree murder probable cause affidavit from Florida. It is considerably more detailed than the Zimmerman affidavit.

Posted by Lawrence Auster at April 13, 2012 08:09 PM | Send