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“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. There’s simply nothing in there that would justify second degree murder.” – Alan Dershowitz commenting on the affidavit of probable cause filed by prosecutor Angela Corey in support of the charge filed against George Zimmerman

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27 COMMENTS

  1. It certainly appears as if a large portion of the US learned nothing at all from the Duke Lacrosse Scandal.

  2. Dershowitz is a strange duck. He’s opposed to gun ownership, but has written that the Second Amendment means exactly what we’ve all said that it means. He’s strongly opposed to judicial trimming of 2A because it would open the door to judicial trimming of other Constitutional rights. Instead, he wants 2A repealed through formally amending the Constitution. He’s also a fantastic lawyer.

    Over the next couple of months, we’ll see just how good George Zimmerman’s new attorney really is. My not so humble opinion — Mark O’Mara may be good, maybe even good enough, but he’s no Alan Dershowitz.

    • He’s strongly opposed to judicial trimming of 2A because it would open the door to judicial trimming of other Constitutional rights.

      Interesting. My viewpoint exactly. And vice versa on trimming the other amendments affecting the 2A.

      Incrementalism.

  3. Instead, he wants 2A repealed through formally amending the Constitution.

    Sort of contradicts the above reasoning.

    • All Dershowitz is saying is that if you want to change the Bill of Rights there is process embedded in the Constitution to do that but as long as Second Amendment is in there then it means that the people have right to own and carry guns. There is not contradiction in that.

      • You really do not see the contradiction of that?
        He does not want to gut the 2A because it because it would open the door to judicial trimming of other Constitutional rights.
        Then he wants the 2A repealed through formally amending the Constitution.
        So why not repeal other fundamental Amendments through formally amending the Constitution? You know, such as the 1A?

    • No, it isn’t strange reasoning. Prof. Dershowitz is *reading* the US Constitution, and he’s saying to those who want to change rights recognized in the Bill of Rights “If you want to change or eliminate those, there is a process spelled out in the Constitution: You pass and ratify an amendment and you can remove/add/change rights in the Bill of Rights.” He’s being intellectually and legally honest. The last time the legal community was this honest was when the 18th Amendment was passed to begin Prohibition. There were no powers in the Constitution that would have enabled the Congress to say “You can’t have a still in your back yard, and oh BTW, you can’t brew bear or ferment wine.” So an amendment was passed and ratified to do this. That was as the Founders intended.

      This is rather unlike the War on Some Drugs, where Congress invents powers out of thin air to prohibit the growing of pot on land you own… there’s no such power in the Constitution anywhere which allows the federal outlawing of a weed you can grow yourself. Courts have effectively given Congress this power through case law.

  5. I looked up the affidavit after I heard Dershowitz and he’s right.

    http://www.foxnews.com/us/interactive/2012/04/12/state-florida-vs-george-zimmerman-affidavit-probable-cause/

    Under Florida law second degree murder is defined as “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.”

    There is no mens rea (“depraved mind”) pled in the affidavit. None. There is nothing that suggests that Zimmerman had any racial animus toward blacks. And given what we now know about Zimmerman, that is not surprising.

    But Florida law is specific about what must be pled in indictments and informations. And without explicitly pleading either a depraved mind or some evidence of its elements, this affidavit simply does not plead second degree murder. (See Sec. 923.03(1)(b), Fla. Stat. (2011) Indictment and information).

    Special prosecutor Angela Corey claimed several times in her news conference that a prosecutors duty is not to convict, but “to the truth.” But confrontation does not equal altercation – who started the altercation is critical to the element of self defense. Again, nothing. And there is nothing in this affidavit about a struggle or the two witnesses who say Martin on top of Zimmerman in the struggle.

    So Angela, where is the truth? This looks like over-charging to see is she can force Zimmerman to plead to a lessor offense because he can’t afford to assert his right to trial and take the chance that he might be convicted.

    This affidavit isn’t “thin” – it simply doesn’t plead second degree murder. Now the question is will a judge require Corey to show some evidence of a depraved mind at a preliminary hearing? And if she doesn’t, will the case be dismissed? That’s what the law requires, but given what has gone on to date, I have no confidence that it will.

      • Corey could refile if she has the evidence and there are pundits now saying she must have something else. But if she has the evidence, it is discoverable in any event, so why not disclose it now? And if she doesn’t, why keep Zimmerman in jail on a trumped up second decree murder charge. Either way, this is not seeking the truth. This is presecutorial abuse of process.

  6. In my simple mind, Zimmerman could not have had a “criminal mind” ; evil people don’t usually call 911 to describe what they’re doing.

    • I read the information and it’s pretty clear that they’re trying to paint Zimmerman as a vigilante who went all Bernie Getz on Martin.

      The story is that Zimmerman got pissed off when he saw a “punk” trying to get away and he shot him. It’s a good story and requires the least amount of proof. They have Zimmerman’s own words on the 911 recording to reveal his mindset. It’s really very clever.

      One can be a vigilante while on the phone to 911. The call won’t get Zimmerman off the hook for vigilantism. However, the racial angle — any claim that Zimmerman shot Martin because Martin was black — is clearly a nonstarter.

      Corey is doing exactly what she was paid to do — prosecute Zimmerman, give political cover to Tallahassee and keep the lid on racial tensions. This will not be an easy case for the defense.

  7. Dershowitz is correct. By charging Zimmerman with 2nd degree murder, you can almost guarantee that he will not be convicted. If you had charged him with aggravated assault, he would have been convicted. So then the next question is: was that a mistake, or was it intentional?

  8. It is possible you go for second degree murder, but convict on aggravated assault, or do you need to state that in the affidavit?
    For a political move though it did drop the tensions. Not saying it is right but no riots as of yet.

  9. It’s a political show. If the SA’s office originally told Sanford PD to drop it, then there is likely nothing substantial to this other than to appease the race baiting media circus. Do you really think this would have gotten a second look if this were “black on black” or “black on white” shooting?

    • According to the media, it is a black on white shooting. Zimmerman is a “White Hispanic.” I’ve never heard of that term before, and it’s an obvious ploy to “whiten” Zimmerman and get the racial fires burning in the same manner as the “creative editing” of the 911 call. I’d like to see the media on trial for their transgressions, but that would involve accountability and responsibility, elements which are clearly lacking on the media left.

      Zimmerman, meanwhile, has an uphill battle to fight. For my part, I have not convicted or absolved him. Yet he is guilty in the court of public opinion, and has received enough threats for a hundred lifetimes. Nice work, media. I hope you never “help” me.

      • Hispanic is a ethnic/national origin category, while black/white is a racial category. Alberto Fujimori, former president of Peru, isk an Asian Hispanic. Roberto Clemente, late right fielder for the Pirates, was a black Hispanic, born and raised in Puerto Rico. A white Hispanic would be a Hispanic of northern or western European ancestry, like English, French, German, Dutch, Norwegian, etc. It’s not inconceivable that a Hispanic named Zimmerman could be such a person.

        • The point is, the media isn’t using “hispanic” in the same way that you are, they are trying to make him into a white guy. Originally, they called him a white supremacist, then it came out that he wasn’t white. So to cover their asses and still keep him white they called him a “white hispanic”.

          While it’s certainly possible that he is a “white hispanic” in the way you mean it, it would require intellectual honesty to accurately call him that, if he were one. If the media had an ounce of intellectual honesty, then we probably wouldn’t be having this conversation right now.

  11. I would not have charged him with 2d degree murder. This reads like a negligent homicide or manslaughter to me. Although, in MS, where I am a prosecutor, the prosecutor can amend the charges at any time prior to impaneling the petit (trial) jury, without seeking approval by the court, although the court has to grant a probable cause hearing on any such amendment. After the trial jury is impaneled, the change requires court approval before being made.

    I predict that this gets knocked down significantly.

    • I’m more than certain this is a dog and pony show for the masses that would burn down their own city without facts beyond race-baiting rhetoric. I would agree that manslaughter is a more fitting charge from what I’ve read thus far.

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