Dershowitz: Zimmerman Arrest Affidavit ‘Irresponsible And Unethical’
Alan Dershowitz says the prosecutor who charged George Zimmerman with second degree murder of Trayvon Martin was “irresponsible and unethical” and politically motivated.
Harvard University law professor Alan Dershowitz appeared on MSNBC’s Hardball where fill-in host Michel Smerconish asked him his opinions of the arrest warrant issued and carried out for alleged Trayvon Martin murderer, George Zimmerman. Dershowitz called the affidavit justifying Zimmerman’s arrest “not only thin, it’s irresponsible.” He went on to criticize the decision to charge Zimmerman for second degree murder by special prosecutor Angela Corey as being politically motivated.
“You’ve seen the affidavit of probable cause. What do you make of it,” Smerconish asked. “It won’t suffice,” Dershowitz replied without hesitation.
“Most affidavits of probable cause are very thin. This is so thin that it won’t make it past a judge on a second degree murder charge,” Dershowitz said. “There’s simply nothing in there that would justify second degree murder.”
Dershowitz said that the elements that would constitute that crime are non-existent in the affidavit. “It’s not only thin, it’s irresponsible,” said Dershowitz.
Dershowitz went on to strongly criticize Corey’s decision to move forward with the case against Zimmerman. “I think what you have here is an elected public official who made a campaign speech last night for reelection when she gave her presentation and overcharged. This case will not – if the evidence is no stronger than what appears in the probable cause affidavit – this case will result in an acquittal.”
Smerconish identified the total lack of any mention of the supposed fight that occurred between Martin and Zimmerman prior to Martin being shot. He said he was disappointed that he did not see any mention of that conflict that led to Martin’s murder.
“But it’s worse than that,” said Dershowitz. “It’s irresponsible and unethical in not including material that favors the defendant.”
“This affidavit does not even make it to probable cause,” Dershowitz concluded. “everything in the affidavit is completely consistent with a defense of self-defense. Everything.”
Derschowitz has made a career of hyperbole but I think he’s right here. As Doug Mataconis noted when the charges were filed late Wednesday, the evidence here points to manslaughter, not murder. Alas, prosecutors routinely overcharge and stack charges, especially in high profile cases, in order to appear “tough on crime” and to raise the stakes in order to coerce a plea to a more reasonable charge. So, while this whole thing has been a farce and a travesty, it’s not particularly unusual.
UPDATE: Derschowitz is not alone here. From the NYT report:
Prosecutors filed a second-degree murder charge against neighborhood watch volunteer George Zimmerman for the killing of unarmed teen Trayvon Martin, but they will have a hard time securing a conviction, experts say. That’s because the prosecution will have to prove Zimmerman intentionally went after Martin instead of shooting him in self-defense, refute arguments that a Florida law empowered him to use deadly force and get past a judge’s ruling at a pretrial hearing.
Legal experts said Corey chose a tough route with the murder charge, which could send Zimmerman to prison for life if he’s convicted, over manslaughter, which usually carries 15-year prison terms and covers reckless or negligent killings. The prosecutors must prove Zimmerman’s shooting of Martin was rooted in hatred or ill will and counter his claims that he shot Martin to protect himself while patrolling his gated community in the Orlando suburb of Sanford. Zimmerman’s lawyers would only have to prove by a preponderance of evidence — a relatively low legal standard — that he acted in self-defense at a pretrial hearing to prevent the case from going to trial. There’s a “high likelihood it could be dismissed by the judge even before the jury gets to hear the case,” Florida defense attorney Richard Hornsby said.
The Florida murder statute is available online. The relevant portion:
(2) 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 and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) When a person is killed in the perpetration of, or in the attempt to perpetrate, any:(a) Trafficking offense prohibited by s. 893.135(1),(b) Arson,(c) Sexual battery,(d) Robbery,(e) Burglary,(f) Kidnapping,(g) Escape,(h) Aggravated child abuse,(i) Aggravated abuse of an elderly person or disabled adult,(j) Aircraft piracy,(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,(l) Carjacking,(m) Home-invasion robbery,(n) Aggravated stalking,(o) Murder of another human being,(p) Resisting an officer with violence to his or her person, or(q) Felony that is an act of terrorism or is in furtherance of an act of terrorism,
by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
It’s not at all clear from a plain reading of this–and I hasten to add, I am not an attorney–how they arrived at this charge.
Note for those who aren’t regular readers: I thought the failure to arrest Zimmerman at the scene was a travesty and think he’s almost certainly guilty of a felony here. I just don’t think the evidence points to murder, a crime of premeditation.