Dershowitz Says Angela Corey Threatened to Sue Harvard for Zimmerman Criticism

As if the Zimmerman case needs more twists and turns, Harvard Law Professor Alan Dershowitz writes that States Attorney Angela Corey called Harvard Law School and went on a 40 minute rant, threatening to sue the University for Dershowitz having expressed his opinion that she misled the court by leaving exculpatory evidence out of the arrest warrant affidavit. She originally called the Dean, but got transferred to the Office of Communications:

She was transferred to the Office of Communications and proceeded to engage in a 40-minute rant, during which she threatened to sue Harvard Law School, to try to get me disciplined by the Bar Association and to file charges against me for libel and slander. She said that because I work for Harvard and am identified as a professor she had the right to sue Harvard.


The person she was transferred to tried to explain academic freedom to her, but according to Dersowitz, "she did not seem to understand."

She persisted in her nonstop whining, claiming that she is prohibited from responding to my attacks by the rules of professional responsibility — without mentioning that she has repeatedly held her own press conferences and made public statements throughout her career.

Her beef was that I criticized her for filing a misleading affidavit that willfully omitted all information about the injuries Zimmerman had sustained during the “struggle” it described. She denied that she had any obligation to include in the affidavit truthful material that was favorable to the defense.

She insisted that she is entitled to submit what, in effect, were half truths in an affidavit of probable cause, so long as she subsequently provides the defense with exculpatory evidence


Dershowitz says she should go back to law school.

She should go back to law school, where she will learn that it is never appropriate to submit an affidavit that contains a half truth, because a half truth is regarded by the law as a lie, and anyone who submits an affidavit swears to tell the truth, the whole truth and nothing but the truth.

As examples of the half-truths in the affidavit (available here), Dershowitz points out:

Before she submitted the probable cause affidavit, Corey was fully aware that Zimmerman had sustained serious injuries to the front and back of his head. The affidavit said that her investigators “reviewed” reports, statements and “photographs” that purportedly “detail[ed] the following.”.... It then went on to describe “the struggle,” but it deliberately omitted all references to Zimmerman’s injuries which were clearly visible in the photographs she and her investigators reviewed.

..... That a prosecutor would hide behind the claim that she did not have an obligation to tell the whole truth until after the judge ruled on probable cause displays a kind of gamesmanship in which prosecutors should not engage.

Dershowitz adds:

Even if Angela Corey’s actions were debatable, which I believe they were not, I certainly have the right, as a professor who has taught and practiced criminal law nearly 50 years, to express a contrary view. The idea that a prosecutor would threaten to sue someone who disagrees with her for libel and slander, to sue the university for which he works, and to try to get him disbarred, is the epitome of unprofessionalism.

Dershowitz also discusses the irony in the state's motion to revoke bond, considering the state's affidavit had the same misrepresentations by omission:

Ironically, Corey has now succeeded in putting Zimmerman back in prison for a comparably misleading omission in his testimony. His failure to disclose money received from a PayPal account requesting donations for his legal defense made his testimony misleadingly incomplete.

In her motion to revoke his bail, Corey argued that Zimmerman “intentionally deceived the court” by making “false representations.” The same can be said about prosecutor Corey. She too misled and deceived the court by submitting an affidavit that relied on a review of photographs and other reports that showed injuries to Zimmerman, without disclosing the existence of these highly relevant injuries.

Putting aside that Zimmerman wasn't questioned by either side about finances at the bond hearing, so it wasn't his testimony but his wife's testimony that was incomplete, which the state and judge think he had a duty to correct, I think Dershowitz's comparison isn't far-fetched. The state's affidavit was misleading and a one-sided telling, with no mention of the evidence collected that refuted its theory.

Had anything been seized from Zimmerman at the time the arrest warrant was executed, Zimmerman would have been able to challenge the probable cause finding in motion to suppress. His grounds would have included the affiants' intentional omission of material facts from the affidavit, which had they been included, would have defeated probable cause. (Franks v. Delaware). In my view, the motion likely would have been granted and "good faith" would not have applied to save it. One could say that what's good for the goose should be good for the gander.

In my opinion, not only was the affidavit in this case legally questionable as to what was included and omitted about the investigation, it failed to allege any facts to establish probable cause for second degree murder, the crime for which the arrest was warrant was sought. The affidavit didn't apprise the reviewing magistrate of the elements of the crime or its theory as to why probable cause for that particular crime existed, as opposed to manslaughter or a lesser crime. There were no facts set forth that it represented to be evidence that Zimmerman acted with a depraved mind or out of hatred, ill-will, malice or spite.

Corey avoided the grand jury, insisted on making the decision herself and then overcharged the case. She held a press conference describing how she prayed with the victims' family. She seems to view her job as defending victims. It's not. Her office represents all of the people of the state of Florida. By law, she must afford victims certain specified rights, but she doesn't represent them. Her job is to prosecute perpetrators of crime and ensure crime victims have a voice to the extent the law allows. She's not their lawyer.

If this case goes south, she is the one to be held accountable -- the buck stops with her.

Update: Florida has adopted the ABA Standards on Prosecution Function.

Florida has adopted the American Bar Association Standards of Criminal Justice Relating to Prosecution Function. This is the product of prolonged and careful deliberation by lawyers experienced in criminal prosecution and defense and should be consulted for further guidance. See also rule 4-3.3(d) governing ex parte proceedings, among which grand jury proceedings are included. Applicable law may require other measures by the prosecutor and knowing disregard of these obligations or systematic abuse of prosecutorial discretion could constitute a violation of rule 4-8.4.
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    Can't we blame the governor? (5.00 / 1) (#1)
    by unitron on Wed Jun 06, 2012 at 06:34:41 AM EST
    "Corey avoided the grand jury, insisted on making the decision herself and then overcharged the case."

    Didn't Wolfinger announce he was taking the case to the grand jury only to be thrown under the bus 2 days later?

    Would they have replaced him with Corey just so she could do the same thing, or was there an understanding that Zimmerman was to be thrown from the back of the troika to distract the wolves from the NRA and SYG laws?

    Technically, Dershowitz is wrong (5.00 / 2) (#2)
    by cboldt on Wed Jun 06, 2012 at 06:35:49 AM EST
    Florida Rules of Criminal Procedure 3.140 - Indictments, Informations
         3.140(d)The Charge.
         (1) Allegation of Facts; Citation of Law Violated. Each count of an indictment or information on which the defendant is to be tried shall allege the essential facts constituting the offense charged. In addition, each count shall recite the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated. [in this case, F.S. 782.04, Murder]

         (k) Form of Certain Allegations. Allegations concerning the following items may be alleged as indicated below:
         (4) Exceptions; Excuses; Provisos. Statutory exceptions, excuses, or provisos relative to offenses created or defined by statute need not be negatived by allegation. [This would be the 776.032 statutory immunity ]

    So, neither the information nor the supporting affidavit alleging the crime of murder under 782.04 need negative the statutory defense provided in 776.032.

    Not to say the charge was brought ethically, I don't think it was.  And not to say that the information makes allegations that find no support in the evidence {e.g., The police dispatcher ordered Zimmerman to wait for a responding officer, although he did].  Just saying that as a technicality, the form of process in Florida does not require a charging information and/or supporting affidavit to tell the whole truth.

    I would say that "technically" (none / 0) (#15)
    by Peter G on Wed Jun 06, 2012 at 09:28:53 AM EST
    it is you that is mistaken here, cboldt.  A rule describing what constitutes a sufficient indictment or information does not determine what a prosecutor, ethically and/or legally, should (or must) include in an affidavit of probable cause. In addition to what TL wrote, I would add that since "Stand Your Ground" operates in Florida as an immunity, not just as a defense (a law with which I do not agree, as a matter of policy, but it's the law in Florida nonetheless), it is all the more evident that the police and the prosecutor should not omit facts from an affidavit that bear on whether the accused is, in law, "immune" from prosecution (and thus, from arrest).

    Please critique the (none / 0) (#16)
    by oculus on Wed Jun 06, 2012 at 09:40:43 AM EST
    affidavit on legal basis leaving aside for the moment the prosecutor's ethical obligations.  In your opinion, is the affidavit sufficient against a hypothetical challenge under "Franks"?

    My half-baked take on a Franks Hearing (none / 0) (#21)
    by cboldt on Wed Jun 06, 2012 at 09:55:32 AM EST
    -- In your opinion, is the affidavit sufficient against a hypothetical challenge under "Franks"? --

    I assume there is a FL equivalent to "Franks" for sufficiency of the evidence, but in my opinion, the information and affidavit would not survive a Franks challenge.  Jeralyn identifies the same element of murder that i will cite, and that is "depraved mind."  Neither the information nor the affidavit recite accusations of fact that create "depraved mind," and if the affiant does so recite, then the recitations are made with insufficient supporting evidence.

    Given the time and evidence before the investigators and prosecutor, I would find a reckless disregard for truth on that point.  Cherry picking the testimony of a witness who has an axe to grind, who wasn't there, etc. (and for various reasons, has substantial credibility issues), and elevating that testimony to the position of "truth" over the testimony of contradictory eyewitnesses, is evidence of bad faith on the part of the prosecution.


    Sorry, Oculus, but I don't have time to study (none / 0) (#31)
    by Peter G on Wed Jun 06, 2012 at 10:31:12 AM EST
    the affidavit again.  Actual work to do for clients.  I'll leave this matter to Jeralyn now, having spoken on it once.

    So, 3.140(k)(4) does not apply? (none / 0) (#18)
    by cboldt on Wed Jun 06, 2012 at 09:42:53 AM EST
    Are you saying that the prosecutor has a duty to negative 776.032, when charging murder?

    I do find the prosecution is improvidently brought, probably unethically brought, and technically that Corey is in violation of 776.032 herself, although there is no remedy for the violation.

    There shouldn't even be an indictment or information, hence there should be no supporting affidavit.

    The fact that there is an affidavit implies that Corey believes she can negative 776.032.

    My narrow point is that as a matter of legal form, Florida law does not requires an information or affidavit to murder to negative the statutory immunity of 776.032; and a such, the exculpatory evidence that pertains to the immunity defense is irrelevant.

    I think Corey is at risk of being found to have acted unethically, but the charging information and affidavit aren't evidence in that case.


    She is not required... (none / 0) (#161)
    by Gandydancer on Thu Jun 07, 2012 at 09:11:04 AM EST
    ...to "negative" 776.032 in the Information proper, iaw the statute you quoted. But the APC contains false implications (saved from outright falsehood only by bad grammar), misleading omissions, and the patent inadequacies. That's ethical?

    Good One (none / 0) (#164)
    by nomatter0nevermind on Thu Jun 07, 2012 at 09:23:12 AM EST
    But the APC contains false implications (saved from outright falsehood only by bad grammar)

    The ethics question is separate (none / 0) (#167)
    by cboldt on Thu Jun 07, 2012 at 09:36:40 AM EST
    The way I see it, the ethics question is separate from the omission of 776.032 material in the indictment/information and affidavit.

    Quick sidebar, if the information/indictment makes no mention of 776.032, it stands to reason that the affidavit in support of it would not need to account for that material either.  The indictment and affidavit are naturally one-sided, with allegations that remain to be proved.

    What is unethical is to bring a case that you don't think you can win.  This may or may not involve weighing competing evidence.  Here we have competing evidence (but SPD did not, or so it said).  I think Corey's charge is unethical because I see no way a reasonable person would find the DeeDee/Sybrina scenario (Zimmerman chased Martin down, held him at gunpoint for half a minute, then shot him) to be true; in light of contradictory eyewitness testimony, Zimmerman's injuries, etc.  Said from the other direction, I see no way a reasonable person can conclude it more likely than not that Zimmerman's use of deadly force was not justified, given the evidence we have.  Sybrina's testimony is neutralized by Zimmerman family, and is overridden then by John, the eyewitness, plus reasonable inference.

    It's unethical to base a case on weak or unreliable "facts" prevailing over strong "facts.  To pick a concrete example, to base your case on Kutcher saying she knows Zimmerman had the physical advantage, because the voice yelling for help was a boys voice, over John, who saw Martin on top of Zimmerman, and one of the two pleading for help.  Sure, there is competing evidence, and on the simplest statement of legal principle, when two witnesses differ, you send it to trial.  But in practice, you don't send it to trial if your witness is unreliable.

    Corey's case is DeeDee and Sybrina, to the exclusion of John, injuries, and Zimmerman's testimony.  The state's case is pretextual and probably depends on conjecture.


    They're also claiming... (none / 0) (#210)
    by Gandydancer on Fri Jun 08, 2012 at 04:39:18 AM EST
    ..."contradictions" in the five "statements", but I agree with you that that's probably crap, exactly because the APC so egregiously misrepresents the evidence that that's probably just unproveably willful misunderstanding of ambiguities. And I think we could agree that Corey has been patently unethical, but getting any action on that absent a smoking gun memo (which doesn't exist) will be nearly impossible iMho. But I'm more interested in Dersh's idea that she has suborned perjury in the form of half truths (and arguably an outright lie in the matter of the assertion -- clear, as I said, except for bad grammar -- that Z was told to meet the arriving officers), maybe ignoring his suggestion that she hid info from the affiants, and the fact that it seems to have been written mostlt per de la Rhonda's instructions rather than she or them.

    Slightly deviating from the topic ... (none / 0) (#215)
    by cboldt on Fri Jun 08, 2012 at 05:40:47 AM EST
    It gets a bit away from the topic, but Zimmerman's deviations amount to a self-rebuttal of his self defense claim, and his self defense claim isn't present in the affidavit.

    The state's case is a murder case, and the reason I find the charge unethical is 1) that there is flimsy evidence that can be construed as depraved mind and 2) Zimmerman has a strong self-defense argument, unrebutted by reliable evidence.  I think the affidavit is flawed too, but that could be cured if Corey would associate elements of the evidence with elements of the crime - or if she would out and out assert a narrative that she will prove at trial, with evidence, e.g., that Zimmerman held Martin at gunpoint while Martin screamed for help, then shot him.

    De la Rionda is subordinate to Corey, and she is the named special prosecutor in this case.  The buck stops with her.  The Information and supporting affidavit are critical statements in the legal process, and should represent the highest level of care the team is able to attain.


    If she could prove what... (none / 0) (#218)
    by Gandydancer on Fri Jun 08, 2012 at 06:22:45 AM EST
    ...you think she will assert that would solve both depraved mind and self-defense. It just doesn't comport with the evidence or the witnesses and I can't imagine anything Z could have said which would cure that. It's Crump's get-attention story and was dustbinned before she was ever given the case.

    A few ways to look at the situation (none / 0) (#219)
    by cboldt on Fri Jun 08, 2012 at 06:46:16 AM EST
    Not that I think she'll assert that narrative, it's just one I made up that can be inferred from the affidavit, that also rings of murder.  I do agree that if she can prove the narrative I put in her mouth, then self-defense doesn't work.  There are other narratives that provide the same end result, but Corey hasn't stated one or more that amount to depraved-mind murder.  For that reason, I think the affidavit is insufficient.

    I don't think the affidavit is insufficient for failing to notice evidence of a self defense claim; but I do think the decision to charge is flawed to the point of being unethical, for failing to give the self-defense claim the weight it has, based on the evidence that Corey had.

    I think there is independent basis for finding the charge unethical, and that is absence of reliable evidence (not unequivocal, just evidence that an objective and reasonable person could find believable in light of all the available evidence) to support a finding of depraved mind.


    Jeralyn, you wrote (5.00 / 3) (#23)
    by prittfumes on Wed Jun 06, 2012 at 10:01:18 AM EST
    ... Her job is to prosecute perpetrators of crime and ensure crime victims have a voice to the extent the law allows. She's not their lawyer.

    Thank you.

    As prosecutor, Corey's declaration in her press conference that she would pursue "the search for justice for Trayvon" was entirely inappropriate IMO.

    Yes, I agree and even though (none / 0) (#47)
    by TeresaInPa on Wed Jun 06, 2012 at 01:07:10 PM EST
    IANAL I find that her words, plus the behavior of the lawyers hired by TM's parents, speaking as if they were part of the prosecution team, making somewhat outrageous statements to the media, are all adding to the dumbing down of Americans in terms of what we understand about our legal system.

    The police (5.00 / 3) (#60)
    by jbindc on Wed Jun 06, 2012 at 02:09:11 PM EST
    Never stopped investigating this case.  Just because Zimmerman was released, after being handcuffed and taken to the police station, does not mean that was the end of the story.  SYG does not prevent the authorities from continuing an investigation and it does not preclude an arrest at a later time, if they can meet the burden under SYG.

    In this case, the investigation was not going fast enough for some people and wasn't being publicly conducted, so many (including Martin's family) did not think anything was happening.

    I'll accept (none / 0) (#65)
    by NYShooter on Wed Jun 06, 2012 at 02:20:14 PM EST
     your interpretation on the SYG law since I'm not qualified to debate it, other than what I've already stated. However, if you're saying that the Sanford PD was continuing a vigorous investigation into this case I'll have to disagree. Even the Chief of the dept. seemed to be justifying their much criticized investigation due to the limitations that law placed on them.

    Then where do you think (5.00 / 1) (#66)
    by jbindc on Wed Jun 06, 2012 at 02:27:28 PM EST
    All the evidence came from?

    I don't know what you would define as "vigorous", but there WAS a continuing investigation.


    OK fine (none / 0) (#85)
    by NYShooter on Wed Jun 06, 2012 at 03:41:32 PM EST
    there "was" an investigation.

    Since the thoroughness of the investigation is the subject of the debate, and the answer is in the eyes of the beholder, I see no point in continuing this discussion.


    What Debate? (none / 0) (#175)
    by nomatter0nevermind on Thu Jun 07, 2012 at 10:00:22 AM EST
    The thoroughness of the investigation has been subject to an extraordinary barrage of lies, that for weeks went largely unchallenged by the media.

    In the resulting muddle, I don't think it's possible to mount a proper defense of the Sanford PD on the evidence now available. There has been no proper debate, and can be none until the confusion caused by the media lies has been cleared up.


    that comment was deleted (none / 0) (#109)
    by Jeralyn on Wed Jun 06, 2012 at 06:12:00 PM EST
    for containing inaccurate information.

    Murder? (5.00 / 2) (#91)
    by lousy1 on Wed Jun 06, 2012 at 04:21:39 PM EST
    Not all shootings or killings are murder. I believe that that is exactly the issue in contention,

    I do agree that there was no element of any crime in the LAX case except some trivial misdemeanors.

    But as a parallel  the present prosecution is displaying some of the self centered, egocentric, arrogant  behavior that Mike Nifong exhibited.

    the comment you are replying to was deleted (none / 0) (#99)
    by Jeralyn on Wed Jun 06, 2012 at 05:16:12 PM EST
    for falsely characterizing the shooting.

    Corey's history of threats (5.00 / 1) (#223)
    by Cylinder on Fri Jun 08, 2012 at 08:20:50 AM EST
    Ron Littlepage: Angela Corey's hissy fits, threats unprofessional

    Last December when I wrote a column critical of how she handled the Cristian Fernandez case, she fired off a two-page, single-spaced letter on official state attorney letterhead hinting at lawsuits for libel...

    Earlier, [former ABA President] D'Alemberte had criticized Corey in the Fernandez case. The reaction then: A public records request from her office to FSU seeking all emails, text messages and phone messages involving D'Alemberte related to Fernandez...

    When David Utter of the Southern Poverty Law Center was on Melissa Ross's radio program and had the audacity to say that Fernandez should be in the juvenile system instead of adult court, that prompted a 20-minute scream-fest from Corey in a call to the center's director.

    Corey's "Can't make a public statement" (5.00 / 1) (#237)
    by cboldt on Fri Jun 08, 2012 at 03:52:43 PM EST
    Exclusive - Prosecutor Angela Corey letter claiming libel by Florida Times Union - Legal Insurrection, June 8, 2012.

    Has a copy of a letter purportedly written by Corey in December last year.  She discusses the [Fernandez] case she is being criticized for, without disclosing any material facts about her investigation.  So, seems she could do the same thing in this case.  In other words, she's not muzzled against making public remarks.

    Supplemental Designation (5.00 / 1) (#256)
    by cboldt on Sun Jun 10, 2012 at 12:30:17 PM EST
    Corey's second supplemental designation was her apprising the court of persons on her investigative and prosecutorial staff, that she has designated responsible for some aspect of this case.  I assume the 3rd supplemental designation is more of the same.

    I'm guessing the "executive order" letter is just a cover letter, referencing her authority under her March appointment by the governor.

    3rd Supplemental Designation (5.00 / 1) (#258)
    by cboldt on Mon Jun 11, 2012 at 02:45:44 PM EST
    Corey's 3rd Supplemental Designation is available online.  New Appointment of ASA Co-Counsel.

    Corey designates Richard W. Mantei to handle investigation, prosecution and representation of the State of Florida.  The cover letter simply asks the Clerk of the Courts to file the designation.

    I wonder if de la Rionda is out.  He wasn't doing a very good job, in my opinion; not that he has much to work with.

    Things that make you go hmmm. (5.00 / 1) (#259)
    by DebFrmHell on Tue Jun 12, 2012 at 06:06:36 AM EST
    And the notification was dated on June 4th, 2012.  

    That was first Monday after the very short notice (IMO!) for the Bond Revocation hearing of June 1st, 2012.  

    And began the week that Judge Lester apparently rearranged his schedule to be absent for an extra week for a total of three weeks away from the courts.  

    (Note:  On the court calendar two of those weeks, 11th-24th, IIRC, were already clear.)

    The timing is suspect to me.

    Interesting turn of events today (5.00 / 1) (#261)
    by DebFrmHell on Wed Jun 13, 2012 at 04:16:25 AM EST
    If Mantei is a "plea-bargaining specialist" as a poster describe him to be, could the screws be turning on GZs thumbs in an effort to coerce him to plea down?

    I asked this very same thing days ago after the bond revocation hearing about the State of Florida using Shellie Z as "leverage."  Days later she is arrested?

    I did get these responses.  I am not sure that you weren't the responder but I will use these anyway...

    Stinson v. State, 839 So. 2d 906 - Fla: Dist. Court of Appeals, 5th Dist. 2003


    Bordenkircher v. Hayes, 434 US 357 (1978)

    Overcharge second degree murder (4.67 / 3) (#133)
    by MyLeftMind on Thu Jun 07, 2012 at 12:56:57 AM EST
    In my opinion, not only was the affidavit in this case legally questionable as to what was included and omitted about the investigation, it failed to allege any facts to establish probable cause for second degree murder, the crime for which the arrest was warrant was sought.

    Then it should be a slam dunk when the defense challenges the murder charge with a motion to dismiss. If the affidavit doesn't meet the requirements for probable cause, the judge will dismiss the second degree murder charge and the State will then have to charge Zimmerman with manslaughter or any other lesser crime they think he committed.

    Ethically speaking, the prosecutor should not have charged Zimmerman unless she actually believes she can defeat the self defense claim at trial and that she can prove all elements of the offense. Angela Corey, like many prosecutors, has likely overcharged Zimmerman in the hopes that he'll plea to a lesser crime. The murder charge is a bluff. Worse, it's probably a deliberate attempt to appease a public screaming for Zimmerman's blood. What Corey has done is inappropriate, but given the political heat, she'll likely be rewarded for her dishonesty.

    She seems to view her job as defending victims. It's not. Her office represents all of the people of the state of Florida.

    Amen. On the other hand, perhaps the powers that be decided the situation demanded a strong, even if incorrect, response. Corey's prayer session with the Martins seems like a public statement that she's on board with their claims of racism motivated murder. Maybe the whole point is for her to calm the boiling tensions about this incident. After all, not only were people protesting all over the country, but the police were being criticized and the threat of race riots hung in the air. But the whole "justice for Trayvon" meme presumes guilt on the part of Zimmerman and complete innocence on the part of Trayvon Martin. It's a despicable distortion that fans the flames of racial tension.

    Even if Zimmerman isn't guilty of any crime, if he really did just go to see where Trayvon Martin went and got sucker punched going back to his car, he could be hung by a jury that just wants to see him punished for being party to a kid going gangbanger over perceived racial profiling. If only he had stayed in his car, right? As if wanting to see where the kid ran so he could tell the police where to find him is some sort of terrible crime.

    Zimmerman's life is over. Even if he can manage to convince a jury of his innocence, there are too many people who will be willing to kill him if he's walking around free in the future. Although people seem to think the Zimmermans not declaring the donated money is not very smart, I expect that they're wondering how they're going to survive after this, even if he's not proved guilty of a crime.

    Itseems highly inappropriate (3.00 / 2) (#134)
    by oculus on Thu Jun 07, 2012 at 01:34:44 AM EST
    to me to malign the prosecutor in the absence of  complete knowledge of the evidence.

    I'm not maligning her (none / 0) (#137)
    by Jeralyn on Thu Jun 07, 2012 at 02:31:17 AM EST
    or insulting or or attacking her. I'm disagreeing with her handling of this case.

    I believe (3.00 / 2) (#138)
    by NYShooter on Thu Jun 07, 2012 at 03:12:31 AM EST
    "Oculus" was responding to "MyLeftMind."

    yeah, I know, it's late:)


    What is enough evidence (none / 0) (#144)
    by cboldt on Thu Jun 07, 2012 at 05:18:01 AM EST
    Nobody is ever going to have complete knowledge of the evidence.  Yet people will be required to make conclusions at some point.  The case necessarily has an end point.

    I think the prosecutor has put out her best evidence for murder.  She has Martin chased (DeeDee), and Martin held at physical disadvantage for more than half a minute (Sybrina).  There is scant other evidence in the case, that I can think of, that creates a case for murder (Kutcher, that the little boy was the one screaming).

    Do you think that evidence supports a murder charge?  If not, then why not malign the prosecutor?

    The same process of critique can be used to explore Zimmerman's 776.032 claim.  If, based on the evidence, you think it is more likely than not that Zimmerman was reasonably in fear of serious injury or death, then you necessarily find the charge to be unethical.

    I think Corey has put her best evidence out there, and has been working to suppress from publication the additional evidence, because the additional evidence favors Zimmerman.

    If she comes out with some bombshell evidence to make her case, I'll happily eat crow.  Meanwhile, I am very comfortable making the accusation that Corey has acted outside ethical boundaries - well outside.


    "You think...." is the rub. (none / 0) (#151)
    by oculus on Thu Jun 07, 2012 at 07:18:53 AM EST
    FL criminal procedure doesn't afford defendant a preliminary hearing to challenge the sufficiency of the evidence to support the charges.

    That's a separate question (5.00 / 1) (#152)
    by cboldt on Thu Jun 07, 2012 at 07:32:45 AM EST
    What I took issue with was whether or not I, a member of the public, have sufficient basis to malign Corey's charging decision.  I won't agree or disagree that Zimmerman has no automatic procedural right to challenge the sufficiency of the evidence at the moment the information/indictment and/or capias are presented to the court, and for talking purposes will concede you are correct.

    I find Dershowitz's whinge to be incorrect on a technical point - that the charging instrument and supporting affidavit must submit exculpatory evidence.  That would be a never ending rathole where prosecutors would be required to lay out every excuse defendant may have offered.

    At the same time, I agree with his conclusion that the charge was not ethically brought.  I suggested earlier how Corey might effectively rebut Dershowitz's charge; and that her pointing to a future or post-indictment duty to disclose is not an effective rebuttal.


    Although Ms. Corey chose to call Harvard (none / 0) (#186)
    by oculus on Thu Jun 07, 2012 at 12:23:27 PM EST
    re Mr. Dershowitz's rant, in my opinion, she has no ethical or legal obligation to respond to him, or to defend her exercise of discretion in filing the charging document.   She has a job to do, and she did it:  exercised her discretion as a prosecutor.  

    Another thought (none / 0) (#153)
    by cboldt on Thu Jun 07, 2012 at 07:50:14 AM EST
    I see Corey making a technical defense to a substantive charge.  The technical defense is that she has no duty to disclose exculpatory evidence in the charging instrument and supporting affidavit.  Wile Dershowitz's assertion is couched in the technically incorrect framework (the mandatory contents of the charging documents), he is mounting a substantive complaint - that Corey has given short shrift to the evidence that supports Zimmerman's self defense claim; and she did so within her decision to charge.  That had she presented this (exculpatory evidence) to the judge, the judge might have rejected the charge.

    Instead of making a substantive rebuttal to this charge, which as I noted above can be made in a general sense without referring to the Zimmerman case, she more or less suggests that an error in charging would be justified because the court gets to see the exculpatory evidence later.

    In order to defend the institution of prosecutorial discretion, she needs to assert that the exculpatory evidence was fully considered before charging, and the prosecutor found that the evidence does not support a claim of self defense.


    Ethics Problem? (4.00 / 4) (#28)
    by Handbasket2H3LL on Wed Jun 06, 2012 at 10:18:33 AM EST
    Did Corey threaten Dershowitz with disciplinary and criminal charges in an attempt to restrain his 1st Amendment right to free speech? Is Corey coming unhinged? Is this another step on the road to Nifong II ?

    Is Dershowitz accurately (none / 0) (#126)
    by gyrfalcon on Wed Jun 06, 2012 at 11:46:43 PM EST
    recounting what she said?  Seems to me that ought to come first.  He does not have a good reputation on this kind of thing.

    Aloha from Tokyo. (3.80 / 10) (#73)
    by Donald from Hawaii on Wed Jun 06, 2012 at 02:48:13 PM EST
    Reading this post serves to remind me why I've never cared for Alan Dershowitz.

    One can express and even firmly assert one's difference of opinion without being a jerk, but that never seems to be good enough for him. Oftentimes, particularly when the debate goes public, Dershowitz appears to relish going the extra yard to make things personal, ridiculing and insulting those who disagree with him, calling them incompetent, and even going so far as to question their honesty and integrity, i.e., "She persisted in her nonstop whining," and "She should go back to law school[.]"

    You know, it's one thing to say that Angela Corey is wrong, and perhaps she is wrong in this particular instance. But that doesn't make her a dishonest and unprofessional attorney. I truly appreciate Dershowitz's razor-sharp intellect and keen insight, but honestly, he needs a timeout here, and should be sent to his room. I mean I felt insulted just reading what he wrote, and I wasn't even the target of his wrath.

    Now, to be fair, Ms. Corey didn't exactly distinguish herself here either, calling Harvard Law School to complain to the dean about Dershowitz's initial public comments. When you're a public official, public criticism is going to come with the territory, and she shouldn't be so thin-skinned. If the criticism is over the top, then you grit your teeth, roll your eyes and move on.

    Frankly, all she and Dershowitz have offered here in tandem is a Grade A example of how our public discourse has become so coarsened and degraded.

    Okay, I've got to rouse everyone (it's 4:35 a.m. in Japan) so we can get ready. We have to be at Haneda Airport at 6:30 a.m. for our flight to Ho Chi Minh City.

    I'll talk to everyone later from Vietnam. Aloha.

    On the contrary... (5.00 / 1) (#148)
    by Gandydancer on Thu Jun 07, 2012 at 06:28:30 AM EST
    ...Ms. Corey is in a position of considerable, barely checked, power to commit injustice. George Zimmerman is in jail. If, as it appears, and as Dershowitz has said he believes, that GEORGE ZIMMERMAN IS IN JAIL FOR POLITICAL REASONS then I am profoundly grateful to Dershowitz for speaking plainly without regard for your too-delicate sensibilities.

    Did Harvard record this call, (3.00 / 2) (#17)
    by oculus on Wed Jun 06, 2012 at 09:42:19 AM EST
    which the Professor apparently did not hear?

    maybe she will voluntarily turn over (none / 0) (#20)
    by Jeralyn on Wed Jun 06, 2012 at 09:55:07 AM EST
    her phone records which would show the length of the call.

    LOL! (none / 0) (#34)
    by Zorba on Wed Jun 06, 2012 at 11:13:55 AM EST
    And maybe pigs will fly, the Gates Foundation will bestow upon me a ten million dollar grant, and Warren Buffett will make me his principal heir.  All equally likely.      ;-)

    Seems to me it is the content, not the (5.00 / 1) (#100)
    by oculus on Wed Jun 06, 2012 at 05:19:53 PM EST
    length of the call, that is at issue here.  

    And whoever she spoke to... (none / 0) (#145)
    by Gandydancer on Thu Jun 07, 2012 at 05:58:06 AM EST
    ...at the Harvard Office of Communications can be deposed on that subject even though Dersh's retelling is just hearsay.

    If (none / 0) (#155)
    by nomatter0nevermind on Thu Jun 07, 2012 at 07:55:21 AM EST
    Depositions can be taken if a suit is brought, and if it's not thrown out as frivolous.

    People threaten to sue for defamation about a thousand times for every suit that's actually brought. It's a standard PR move.


    By State's Attorneys??? (none / 0) (#162)
    by Gandydancer on Thu Jun 07, 2012 at 09:13:58 AM EST
    Dershowitz (3.00 / 2) (#30)
    by lentinel on Wed Jun 06, 2012 at 10:26:44 AM EST
    may be correct on this issue.  But his description of Corey's call,

    She persisted in her nonstop whining

    makes me cringe.

    Maybe I'm old fashioned, but that seems like a sexist remark if ever there were.

    Don't know about sexist... (5.00 / 2) (#37)
    by unitron on Wed Jun 06, 2012 at 11:25:01 AM EST
    ...but if he didn't take the call himself I think maybe we're talking facts not in evidence here.

    I hate to sound ageist (especially considering how rapidly mine is increasing), but I'm starting to wonder about the good professor lately.


    Not sexist in general (none / 0) (#38)
    by friendofinnocence on Wed Jun 06, 2012 at 11:58:18 AM EST
    It has been my experience the words "whining" and "shrill" are used frequently around the internet without regard to gender.

    That said, I think Dershowitz could have chosen a better word.  



    multiple comments (none / 0) (#101)
    by Jeralyn on Wed Jun 06, 2012 at 05:35:10 PM EST
    discussing sexism deleted. Please keep this to the substance of Dershowitz's allegations and Corey's alleged call.

    Volokh has it correct (none / 0) (#102)
    by cboldt on Wed Jun 06, 2012 at 05:37:46 PM EST
    Here's a link to F.S. 776.032 - Immunity from criminal prosecution and civil action for justifiable use of force.

    It finds, as a matter of law, immunity if a person is justified in the use of force.  They are immune from arrest, detention, and prosecution.  But, we know that some people who obtain this immunity are arrested, detained, and prosecuted, until a judge finds the use of force was justified.

    In other words, it isn't that Zimmerman doesn't deserve immunity, it's that as between all the players in the legal system, conclusions vary, and the final conclusion on the point hasn't been rendered yet.  The issue isn't raised and settled anew at each and every step of the way, and one step where 776.032 isn't brought up is "sufficiency of the evidence on the crime" step, arrest under orders of the prosecutor.

    SPD found Zimmerman to be immune.  No arrest.  Corey brought in two new witnesses, DeeDee and Sybrina, and came to the opposite conclusion.  Arrest, charge, detention, and prosecution.  Lester will be asked to review the evidence, and he'll settle the issue his way.  The result will be appealed, and the appellate court will settle it once and for all.

    Another way to say what I'm pointing out is that Corey has in fact negatived 776.032.  That conclusion is inherent in her bringing a charge.   She can't bring a charge unless she negatives 776.032.  She's looked at the self defense evidence, and essentially claims that the evidence will show, beyond a reasonable doubt, that Zimmerman is a liar.


    Ms. Corey doesn't seem to fit w/i (none / 0) (#103)
    by oculus on Wed Jun 06, 2012 at 05:41:44 PM EST
    the statutory definition of "law enforcement" officer.  

    Corey's not a LEO, but so what? (none / 0) (#105)
    by cboldt on Wed Jun 06, 2012 at 05:51:36 PM EST
    There is a rather lengthy part of 776.032 that separates "law enforcement officers" from "civilians" for purposes of granting immunity.  Law enforcement officers do not get statutory immunity, they can be sued for their use of deadly force, even if the use was ostensibly in self defense.  The reason for this distinction reflects a policy decision that the state will allow itself to be sued, even when the use of law enforcement force is justified.  And in court, law enforcement officers have forms of immunity that are not available to civilians.

    One part of 776.032 that potentially pertains to Zimmerman is a finding that he is immune from "arresting, detaining in custody, and charging or prosecuting the defendant."  Charging and prosecuting felonies is a prosecutorial function, not performed by law enforcement officers.


    Thought this was your point: (none / 0) (#107)
    by oculus on Wed Jun 06, 2012 at 05:58:49 PM EST
    (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

    That's only part of it (none / 0) (#111)
    by cboldt on Wed Jun 06, 2012 at 06:15:22 PM EST
    SPD found the use of force justified.  They said so, directly.

    But immunity didn't attach "permanently."  There is still a chance that a prosecutor will review the evidence, and charge.  That even though the police conclusion is "lack of probable cause," a prosecutor may see the case differently.

    And Corey did see it differently - not on exactly the same evidence, significant parts of the state's narrative come from witnesses that were not part of SPD's calculus.  Corey concluded that Zimmerman is not entitled to 776.032 immunity.  Dershowitz's beef is that the "indictment" (information) and supporting affidavit don't discuss or otherwise account for the self defense statutory immunity.

    My points are 1) that by the design of Florida's criminal law formalities, Corey's calculus as to 776.032 would not appear in the information and affidavit; and 2) not every agent of the government necessarily makes the same [immunity] finding.


    Taking your point... (none / 0) (#165)
    by Gandydancer on Thu Jun 07, 2012 at 09:30:03 AM EST
    ...I believe Oculus' point is that the law is oddly drafted, unless Corey's office is a "law enforcement agency". Or, I guess, unless her office's Information is the means by which the Sheriff determined probable cause. Read that last blockquote again and you'll see, I think, what he meant (I think).

    But that's not the only immunity (none / 0) (#170)
    by cboldt on Thu Jun 07, 2012 at 09:43:21 AM EST
    776.032 also provides immunity from charging (which is not a police function, for a felony), and from prosecution (ditto).

    No disagreement that law can be viewed as oddly drafted.  Most laws (by sheer number of them) are oddly drafted, and it takes some time to sort out - sometimes it takes a LONG time to sort out!


    Sounds like a very one sided (3.00 / 2) (#42)
    by amateur on Wed Jun 06, 2012 at 12:27:02 PM EST
    description of a conversation.  I'm not a big fan of Dershowitz and I imagine he knows he has leeway to paint the conversation in any light he wants, lopsidedly paraphrasing Ms. Cory wherever it's convenient for him.  He may have a point that GZ was overcharged (I don't see probable cause for murder 2 either) but I think Cory and cboldt are correct: the probable cause affidavit is not required to preemptively defeat a likely defense.

    that's not his argument (5.00 / 1) (#108)
    by Jeralyn on Wed Jun 06, 2012 at 06:06:36 PM EST
    His argument is that the affiants swore to tell the truth and told half-truths. That's not acceptable.

    He didn't say and no one here is saying they have to defeat self-defense. But an honest portrayal of the facts would include at least an acknowledgement  there was conflicting evidence as to whether a crime was commented by Zimmerman. They could have stated what the conflicting evidence was, and then concluded that  after considering all of the evidence, including the conflicting evidence, it was their belief that probable cause exists that Zimmerman committed the charged crimes.

    In addition, their affidavit states no facts to support a charge of second degree murder. They don't even acknowledge the elements or why they believe his conduct and state of mind establish that crime.

    The affidavit also misstates some facts, like claiming Zimmerman was "instructed" not to follow Martin when the dispatcher said "Ok, We don't need you to do that" to which Zimmerman replied "OK."

    Another example: They include that TM's mother identified TM as the person yelling for help, but omit that GZ's father identified GZ as the person yelling for help.

    There is no legal duty as of yet to present exculpatory evidence to the grand jury, according to the Supreme Court. That's different from the ethical rules lawyers operate under. Even the Justice Department has a policy for its prosecutors:

    9-11.233 Presentation of Exculpatory Evidence

        In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury.

    It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.

    The ABA Prosecution Standards:

    Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury

       (b) No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.

    Standard 3-3.7 Quality and Scope of Evidence for Information

     Where the prosecutor is empowered to charge by information, the prosecutor's decisions should be governed by the principles embodied in Standards 3-3.6 and 3-3.9, where applicable.

    Also see:

    Standard 3-3.9 Discretion in the Charging Decision  

    (f) The prosecutor should not bring or seek charges greater in number of degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense.

    The Fourth Amendment says:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    An arrest warrant authorizes the seizure of the person. The warrant must be supported by facts establishing probable cause that the person sought to be arrested committed the crime for which his arrest is sought. A neutral and detached magistrate must be able to make an independent determination as to whether probable cause exists from the Affidavit. Leaving out critical facts that would cast doubt on the existence of probable cause is not acceptable.


    As I've pointed out before, criminal... (none / 0) (#147)
    by Gandydancer on Thu Jun 07, 2012 at 06:16:08 AM EST
    ...procedure in Florida seems somewhat degraded. The initial hearing is "non-adversarial" and the decision of an elected prosecutor (I assume Corey qualifies, despite being elected elsewhere) as to what constitues probable cause cannot be challenged at that stage. Not sure why the initial judge nonetheless offered "I find that probable cause exists for the Information" (or words to that effect) or how this survives a 4th Amendment challenge (not aware that it has been challenged) but in terms of Florida law it seems that Corey could truly have Informationed a ham sandwich and had it thrown it in jail.

    These things taken alone (none / 0) (#178)
    by amateur on Thu Jun 07, 2012 at 10:48:28 AM EST
    In addition, their affidavit states no facts to support a charge of second degree murder. They don't even acknowledge the elements or why they believe his conduct and state of mind establish that crime.

    The affidavit also misstates some facts, like claiming Zimmerman was "instructed" not to follow Martin when the dispatcher said "Ok, We don't need you to do that" to which Zimmerman replied "OK."

    Another example: They include that TM's mother identified TM as the person yelling for help, but omit that GZ's father identified GZ as the person yelling for help.

    don't look like enough to allege prosecutorial misconduct.  On the first point, it looks to me like they are using GZ's words "f-ing punks, azzholes" as evidence of ill will toward the victim.  That's not, to me, enough but it might be enough for probable cause purposes.  Regardless, you say that's not Dershowitz's argument so perhaps it's irrelevant.

    On the second point, whether or not a reasonable person would hear what the dispatcher said and not believe that was an instruction might be up for debate but it's not unreasonable to read it that way.  They allege that he followed anyway and that's in iffy territory unless they are using the location of the struggle and body and GZ's statements as evidence of that (they don't say).  That doesn't look like an obvious falsehood to me though, and seems like a very thin basis to accuse misconduct.

    The third point is probably the strongest. Including one half of two directly conflicting statements is a half truth but not a material one.  At most it is negated by GZ's father and then it disappears, but it's not enough to eliminate probable cause, IMO.

    Unless there are other very clearly false statements in the affidavit, I find Dershowitz's comparison of it to GZ's misleading of the court to be unconvincing and somewhat desperate.  That is, of course, just my opinion, subject to change if actual evidence of misconduct appears.


    Instructed And Informed (none / 0) (#180)
    by nomatter0nevermind on Thu Jun 07, 2012 at 11:11:08 AM EST
    On the second point, whether or not a reasonable person would hear what the dispatcher said and not believe that was an instruction might be up for debate but it's not unreasonable to read it that way.

    I think the question is whether it is reasonable to think the dispatcher intended it to be an instruction.

    I've asked before for statute or case law showing that dispatchers are authorized to give instructions to citizens in such circumstances. Still no answer.

    The affidavit also claims that the dispatcher 'informed' Zimmerman 'to wait for the officer'. Clearly false.


    The police chief (the... (none / 0) (#212)
    by Gandydancer on Fri Jun 08, 2012 at 05:07:59 AM EST
    ...one on paid leave whose offer to quit was declined) said (ignoring the ambiguous nature of the "instruction") that GZ was under no obligation to obey the dispatcher. It's SOP for dispatchers everywhere to say things to exonerate PDs from responsibility for any subsequent actions by callers and I'd be greatly surprised if "We don't need you to do that" isn't quoted from some training script.

    The "wait for the officer" assertion, garbled twice in the APC IIRC, is IMHO the one unambiguous simple falsehood, as opposed to irrelevance, omission, wilful misunderstanding of ambiguity, etc.


    Do Dispatchers Instruct? (none / 0) (#221)
    by nomatter0nevermind on Fri Jun 08, 2012 at 07:13:57 AM EST
    The police chief (the one on paid leave whose offer to quit was declined) said (ignoring the ambiguous nature of the "instruction") that GZ was under no obligation to obey the dispatcher.

    I know. His name is Bill Lee Jr.

    I think he is right, but he isn't a lawyer, and he was defending the decision not to charge Zimmerman at once. I don't put a lot of weight on his opinion.

    But those who make the 'instruction' claim have the burden of proof. So far I've heard zero.

    Suppose I am on my way to work, and I see something suspicious and call it in. I tell the dispatcher everything I know, and then say that I am going on to work. Does the dispatcher say, 'No, you have to wait and meet with the responding officer?' If he does, am I legally required to obey? All that strikes me as ridiculous.


    I wasn't relying just on Lee... (none / 0) (#224)
    by Gandydancer on Fri Jun 08, 2012 at 08:54:21 AM EST
    ...but ran across a number of comments on this point on other threads by folks who claimed to be LEOs, relatives or friends of dispatchers, etc. The convincing point, agreed by all, is that the dispatchers/911 operators are just civilians, not sworn officers of the law. They can't order you to do squat.

    Even if a police officer had told him to stay put, (none / 0) (#226)
    by ruffian on Fri Jun 08, 2012 at 10:26:57 AM EST
    is that binding legally?

    He's got a gun. (none / 0) (#228)
    by Gandydancer on Fri Jun 08, 2012 at 10:58:25 AM EST
    Comply now, argue later.

    Keeping The Peace (none / 0) (#240)
    by nomatter0nevermind on Fri Jun 08, 2012 at 10:28:18 PM EST
    Fla. Stat. § 843.06:

    Neglect or refusal to aid peace officers.--Whoever, being required in the name of the state by any officer of the Florida Highway Patrol, police officer, beverage enforcement agent, or watchman, neglects or refuses to assist him or her in the execution of his or her office in a criminal case, or in the preservation of the peace, or the apprehending or securing of any person for a breach of the peace, or in case of the rescue or escape of a person arrested upon civil process, shall be guilty of a misdemeanor of the second degree . . .

    If an LEO thought Zimmerman following Martin would threaten 'preservation of the peace', this statute might apply. (IANAL)

    I think an order to 'stay put' or 'stay in your vehicle' wouldn't fly. That would amount to arresting/detaining the person. Zimmerman had as much right to walk around the neighborhood as Martin.  


    They say there are no dumb questions... (none / 0) (#231)
    by DebFrmHell on Fri Jun 08, 2012 at 11:59:48 AM EST
    All of these cites are in regards to Angela Corey had she  gone before a Grand Jury?  But she chose to forgo that process and initiated the charges through her office instead.

    Doesn't that further prove that the charges are more politically motivated?  I firmly beileve that she had to forego the Grand Jury Process that was begun by Wolfinger.  He even had a date attached, IIRC.  

    I firmly believe that she would have gotten a "No Billed" if she had.

    Sorry, if I am misstating what I am reading or if I am phrasing my questions poorly.  I know what I want to ask but it reads funny.   It is not my intention.  


    Only the first two... (none / 0) (#249)
    by Gandydancer on Sat Jun 09, 2012 at 01:17:27 PM EST
    ...cites refer to Grand Jury processes. There is in any case no obvious reason why a prosecutor submitting an Information to a judge and asking for a determination of probable cause should have less of an ethical obligation to disclose any fact than one submitting the same case to a Grand Jury for the same determination, IMHO.

    Corey choosing to go the Information route proves nothing, however. She didn't have to go to a Grand Jury, it's easier, and it's SOP for her.


    But what if self-defense is not a defense? (none / 0) (#244)
    by Handbasket2H3LL on Sat Jun 09, 2012 at 10:44:34 AM EST
    IF evidence indicating TM attacked first and injured GZ is not a defense to the crime charged and is thus not exculpatory. Does this answer Dershowitz?

    Probable cause affidavit contends that that GZ was engaged in attempted unlawful citizen's arrest (falsely profiled as a criminal, pursued, confronted). Thus self defense is not a defense per 776.013(3) because affidavit alleges unlawful activity (attempted false citizen's arrest) at the time that TM assaulted GZ.

    See standard jury instruction 5.1, 777.04(1) and Ripley v. State of Florida (lawful citizen's arrest determined by same standards as normal police arrest - cops outside their jurisdiction are actually making a citizen's arrest)


    I forgot to mention (none / 0) (#245)
    by Handbasket2H3LL on Sat Jun 09, 2012 at 10:49:06 AM EST
    787.02(1)(a).  Attempting to do 787.02(1)(a) is a crime pursuant to 777.04(1)as laid out in jury instruction 5.1 

    Affidavit Misrepresented (none / 0) (#246)
    by nomatter0nevermind on Sat Jun 09, 2012 at 12:05:51 PM EST
    Probable cause affidavit contends that that GZ was engaged in attempted unlawful citizen's arrest . . .

    It contends no such thing.

    Thus self defense is not a defense per 776.013(3) because affidavit alleges unlawful activity (attempted false citizen's arrest) at the time that TM assaulted GZ.

    776.032 confers immunity on a 'person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031'. Note 'or'. 776.012 has no 'unlawful activity' exception.


    Yes it does. (none / 0) (#247)
    by Handbasket2H3LL on Sat Jun 09, 2012 at 12:50:50 PM EST
    This portion of the probable cause affidavit quoted below states that GZ was attempting to make a false arrest at the time the fight started. This  constitutes unlawful activity that negates self defense:

    During this time, Martin was on the phone with a friend and described to her what was happening. The witness advised that Martin was scared because he was being followed through the complex by an unknown male and didn't know why. Martin attempted to run home but was followed by Zimmerman who didn't want the person he FALSELY ASSUMED WAS GOING TO COMMIT A CRIME TO GET A WAY before the police arrived. 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.

    Zimmerman confronted Martin and a struggle ensued.


    Wanting Isn't Doing (none / 0) (#248)
    by nomatter0nevermind on Sat Jun 09, 2012 at 01:14:19 PM EST
    Zimmerman who didn't want the person he FALSELY ASSUMED WAS GOING TO COMMIT A CRIME TO GET A WAY

    That's about what Zimmerman wanted, not what he did.

    The affidavit does not allege any act by Zimmerman that could be construed as an attempt to detain Martin.


    Stalking (none / 0) (#253)
    by Handbasket2H3LL on Sun Jun 10, 2012 at 04:29:45 AM EST
    "The affidavit does not allege any act by Zimmerman that could be construed as an attempt to detain Martin."

    OK, w/o attempt to detain, maybe stalking. See Jury Instruction 8.6

    Martin was scared = emotional distress
    Profiled + falsely assumed crime + continued to follow after dispatcher instruction = no legitimate purpose

    The State is contending in the affidavit that GZ was engaged in an unlawful activity at the time the conflict started.


    the provocation (none / 0) (#254)
    by Jeralyn on Sun Jun 10, 2012 at 09:47:33 AM EST
    by Zimmerman has to be contemporaneous with Martin's act of violence that resulted in Zimmerman's response by shooting.

    Following someone and demanding to they account for their presence is not provocation for a punch in the nose.

    Sorry, but Martin's attack was not justified based on Zimmerman's following Martin.

    Please state this as your theory because it's not what the state is alleging.

    The state is alleging he profiled Martin by assuming he was a criminal. The prosecutor states this in his closing argument at the bond hearing. He is not alleging that Zimmerman attempted to detain Martin and he has no witnesses to say otherwise. All it takes in Zimmerman's word to say that's not what happened, and Zimmerman will get his self defense instruction. Dee Dee wasn't there, and she says Martin confronted Zimm first saying "Why are you following me?"


    Agreed that the affidavit is insufficient (none / 0) (#3)
    by cboldt on Wed Jun 06, 2012 at 06:51:25 AM EST
    -- There were no facts set forth that it represented to be evidence that Zimmerman acted with a depraved mind or out of hatred, ill-will, malice or spite. --

    The state invites the court to conclude that either "profile, pursue and confront" are per se "depraved", or that Zimmerman held a screaming Martin at gunpoint before shooting him; but the state does not make either of those claims directly.

    O'Mara has requested a statement of particulars, but I don't know of Lester ordering the state to produce one.

    Anyway, I agree that the affidavit fails to make the case.  The magistrate judge that reviewed the information and found it sufficient erred.  

    See my comment above. (none / 0) (#149)
    by Gandydancer on Thu Jun 07, 2012 at 06:54:01 AM EST
    I think the judge that found it sufficient supposedly had no choice in the matter. That is, earlier in following this case I ran across caselaw that said that her decision as to what constitues PC is unchallengeable at the prelim. But in looking for the link I've run across an example of a no-PC finding, and I'm (temporarily, I hope) confused...

    The judge is independent (none / 0) (#150)
    by cboldt on Thu Jun 07, 2012 at 07:15:55 AM EST
    According to Rule 3.120 - Committing Judge, which I believe is the applicable standard at that point, the judge is not a rubberstamp.  The judge "may take testimony under oath to determine if there is reasonable ground to believe the complaint is true."

    I find that the "no choice" is fact dependent.


    I'm not making this up, ... (none / 0) (#169)
    by Gandydancer on Thu Jun 07, 2012 at 09:41:30 AM EST
    ...I just can't find the cite. But it was in black and white that whatever she asserted was probable cause was unreviewable. I swear it!

    I'll look too (none / 0) (#174)
    by cboldt on Thu Jun 07, 2012 at 09:52:10 AM EST
    I read through the pretrial detention and similar parts of the Florida Rules, and in each instance I found, the judge is required to make an independent finding.  In some rules that is couched as "if the judge finds probable case ... and if the judge does not find probable cause" sorts of conditionals.

    3.132 deals with pretrial detention, and allows "the defendant may obtain review [of a detention order] by motion to the appropriate appellate court."

    There is a section on pretrial motions, as well.  Defendant isn't bound by the rules to stand mute, jailed, while being railroaded with a pack of lies or otherwise materially false narrative.

    If you find a cite where a judge or court is not allowed to make a finding on probable cause, no matter what, I'd like to see it.  Aside from jurisdiction and standing, that is.


    Post below cites the case you seek (none / 0) (#176)
    by cboldt on Thu Jun 07, 2012 at 10:10:57 AM EST
    There's a post below that links to another blog, that links to "hardy" or similar name FL case.  That Hardy case says that the information/indictment and affidavit can't be challenged for "sufficiency of the evidence," which might be viewed as "assume the allegations made here can be proven true, we have witnesses who will so testify."

    The actual proving takes place at trial, not at a preliminary hearing.

    But, if the affidavit omits an element of the crime, the omission isn't in the nature of weighing evidence.  It's an omission of evidence; and the court isn't free to just plug something in there.

    IOW, it's possible to fail probable cause on grounds other than sufficiency of the evidence.


    Yeah, Hardy v. Blount (Fla. Supreme '72)... (none / 0) (#185)
    by Gandydancer on Thu Jun 07, 2012 at 11:57:24 AM EST
    ...that's it, and probably how I got there too. But I think you're wrong about "omitting an element of the crime" being different than "sufficiency of the evidence". The SA, or "County Solicitor" as the FSC calls her in that case, is a constitutional officer who in swearing "that the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged" completely obviates any necessity of a prelim hearing for the purpose of determining whether to go to trial (detention is a different question), since "the County Solicitor must be the sole and final judge and as to which neither the court nor the defendant may inquire", and "even if a defendant were granted a preliminary hearing and the committing magistrate discharged the defendant for lack of probable cause, the prosecuting attorney could nevertheless determine that probable cause exists and file an information charging the defendant with the commission of the offense." It's dicta, and 1972, but that's the way I read it, anyway.

    Detention is a different question (none / 0) (#189)
    by cboldt on Thu Jun 07, 2012 at 03:04:26 PM EST
    So, reading Hardy and a few of the cases it cites, the prosecutor has unfettered discretion about "obtaining a trial" - no need for a preliminary hearing, because no matter the outcome of that, the state and the defendant will be an a track to trial.  The trial might not happen, depending on the outcome of pretrial motions, but the case will be set before a judge as though a trial is required to come to a conclusion.

    But the judge at the preliminary hearing may still find absence of probable cause.  Such a finding affects the state's ability to detain defendant, but does not affect the prosecutor's ability to go to trial.


    Who knows? (none / 0) (#198)
    by Gandydancer on Thu Jun 07, 2012 at 09:39:15 PM EST
    This is law, not physics, and is not constrained by reality to any consistancy over time and space. There was a time when I knew what "traveling" was in basketball...

    But I was wrong, apparently... (none / 0) (#199)
    by Gandydancer on Thu Jun 07, 2012 at 09:40:45 PM EST
    And I've just taken a look at.... (none / 0) (#201)
    by Gandydancer on Thu Jun 07, 2012 at 11:27:35 PM EST
    ...(but not read, yet)...GERSTEIN v. PUGH ET AL. (5th Circuit 1975,
    (a) The prosecutor's assessment of probable cause, standing alone, does not meet the requirements of the Fourth Amendment and is insufficient to justify restraint of liberty pending trial. Pp. 116-118.

    ...so some of Hardy may be kaput, though what I just quoted obviously doesn't contradict your takeaway.


    ...so some of Hardy may be kaput (none / 0) (#204)
    by MJW on Fri Jun 08, 2012 at 01:31:27 AM EST
    The Florida supreme court agrees.

    Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181 (1977):

    First, in Gerstein v. Pugh, 420 U.S. 103, 106, 116-117, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the United States Supreme Court overturned Hardy, refusing to find the prosecutor's filing of an information to be the constitutional equivalent of a magistrate's finding of probable cause.

    But this is limited to detention, not prosecution. (none / 0) (#205)
    by Gandydancer on Fri Jun 08, 2012 at 03:44:24 AM EST
    cboldt has it right. Gerstein:
    In holding that the prosecutor's assessment of probable [420 U.S. 103, 119] cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U.S. 541, 545 (1962); Lem Woon v. Oregon, 229 U.S. 586 (1913).

    In fact, since Hardy was decided, as I understand it, on state constitutional grounds, and the SYG hearing is based on mere statute it would appear that there is a strong argument that dismissal of a charge, brought by Information, at a SYG hearing, is UNCONSTITUTIONAL in Florida.(!)


    Well, that seems like the point (none / 0) (#206)
    by MJW on Fri Jun 08, 2012 at 04:00:13 AM EST
    of cboldt's comment above titled "Detention is a different question."

    Detention is a different question (none / 0) (#209)
    by cboldt on Fri Jun 08, 2012 at 04:37:34 AM EST
    Funny thing is, I lifted that line from the post I was responding to at the time.

    I realized that after I hit Post (none / 0) (#233)
    by MJW on Fri Jun 08, 2012 at 12:43:53 PM EST
    I responded too hastily to your title, which annoyed me by implying I didn't understand something that I actually understood perfectly well. I'd be pleased if Jeralyn would delete this comment and the two leading up to it.

    SYG Hearing -is- a trial process (none / 0) (#208)
    by cboldt on Fri Jun 08, 2012 at 04:36:35 AM EST
    All Hardy stands for is that an accused doesn't have a right to dismissal of the charge at the first hearing point in the process.  But he does have a right (and the court is obliged) to release, if the evidence does not support probable cause that a crime has been committed.

    The judge magistrate has the power, at the first hearing, to find absence of probable cause for detention; but does not have the power to dismiss the charge.

    The Hardy and Gerstein cases don't look any further than the first hearing.

    An SYG hearing is a substantive and adversarial process.  It is effectively a trial to the judge.  It is emphatically a time to weigh evidence, under the Florida Supreme Court's Dennis decision.  The prosecutor's case is tested.


    Gotta admit, you're probably right... (none / 0) (#225)
    by Gandydancer on Fri Jun 08, 2012 at 09:08:47 AM EST
    ...but I'd want to read the Fla constitution on county attorney function, etc., before giving up on my idea for Corey's appeal.

    Corey's action exculpatory? (none / 0) (#5)
    by Cylinder on Wed Jun 06, 2012 at 07:00:28 AM EST
    Could Corey's actions be viewed as exculpatory evidence, required to be disclosed, under a defense theory that the state's prosecution is an overreaction to political pressure fueled by media outrage?

    Nope (none / 0) (#7)
    by bmaz on Wed Jun 06, 2012 at 07:46:44 AM EST
    Not is the sense you are asking, as I understand it. The incident is interesting for what it shows us about Angela Corey, but it is not directly exculpatory within the scope of Brady.

    It gets harder and harder (none / 0) (#8)
    by Buckeye on Wed Jun 06, 2012 at 07:53:34 AM EST
    to believe that Corey arrested Zimmerman for anything other than politics.  She does not appear to be a competent and ethical prosecutor.

    Depends on how one defines (none / 0) (#9)
    by Rojas on Wed Jun 06, 2012 at 08:12:33 AM EST
    She gets convictions, lots of them.
    The former DAs of Dallas and Williamson counties were very proficient in that regard...

    so, for that matter, (none / 0) (#10)
    by cpinva on Wed Jun 06, 2012 at 08:43:48 AM EST
    was the new orleans DA and his ADA's. heck, they even got death sentences. unfortunately, it turns out that a lot of those convictions were obtained by official cheating, and subsequently overturned.

    She gets convictions, lots of them.
     The former DAs of Dallas and Williamson counties were very proficient in that regard...

    with respect to the issue at hand, the only three people who's opinions on the subject actually matter are the judge and the two atty's. were the article in question so egregiously wrong, in both content and character, i should think mr. zimmerman's atty. would have argued zealously against it. he didn't. of course, he may still have that option open to him, though i would think there is a time limit in which to do so.

    i think prof. dershowitz's position on gitmo tarnishes his credibility overall, is the point that was being made. in some people's minds, this applies to every issue he renders an opinion on, whether or not you agree. i'm not saying i do or don't, simply clarifying the position taken by a previous poster.

    i wonder if that "40 minute rant" was caught on tape?


    When did he have the opportunity... (none / 0) (#173)
    by Gandydancer on Thu Jun 07, 2012 at 09:48:42 AM EST
    ...to zealously argue against it? First appearance is non-adversarial and prevents him from getting an adversarial PC hearing. And the only remedy would be a rewrite.

    This is truly shocking (none / 0) (#11)
    by friendofinnocence on Wed Jun 06, 2012 at 09:06:41 AM EST
    "She insisted that she is entitled to submit what, in effect, were half truths in an affidavit of probable cause, so long as she subsequently provides the defense with exculpatory evidence."

    Do you take issue with cboldt's (5.00 / 0) (#12)
    by ruffian on Wed Jun 06, 2012 at 09:11:27 AM EST
    analysis of FL law in comment #6?

    Or do you think the FL law is shocking. If so, I often agree.


    ooops...comment #2 (none / 0) (#13)
    by ruffian on Wed Jun 06, 2012 at 09:12:05 AM EST
    arrested, and I am both shocked the law allows this in Florida and that Cory would actually do what the law allows.

    What kind of a justice system allows a prosecutor to cancel a Grand Jury and replace it with a probable cause affidavit that doesn't, by law, have to tell the whole truth?  To me, that means when the Governor turned this over to Cory, he would have every reason to believe that an arrest would be imminent regardless of the evidence.  That would mean that Florida has he ability to engineer a railroad on demand.


    Bingo (none / 0) (#194)
    by ruffian on Thu Jun 07, 2012 at 04:54:19 PM EST
    That would mean that Florida has he ability to engineer a railroad on demand.

    I've been reading a little about some Florida big trials, especially one in the Jim Crow era (Groveland Boys).

    I don't believe things have changed a whole lot since then as far as the prosecutors being able to manipulate the law. Motivations may have changed, but not much else. Even Casey Anthony - watching that trial, I was amazed they had probable cause to even arrest her.


    Maybe we are looking at different affidavits (none / 0) (#22)
    by cboldt on Wed Jun 06, 2012 at 10:01:01 AM EST
    The one I am looking at concludes with "The facts mentioned in this affidavit are not a complete recitation of all the pertinent facts and evidence in this case but only are presented for a determination of Probable Cause for Second Degree Murder."

    The affidavit I am looking at and criticizing was filed in conjunction with the Information.

    you are correct (none / 0) (#243)
    by Jeralyn on Sat Jun 09, 2012 at 02:28:01 AM EST
    the affidavit was for the Information to support the charge of second degree murder. Once the charges were filed (charge and affidavit) the capias warrant was issued by the clerk of the court.

    Dual Functions (none / 0) (#24)
    by nomatter0nevermind on Wed Jun 06, 2012 at 10:02:19 AM EST
    The affidavit was in support of an arrest warrant based on the charge of second degree murder, it was not an affidavit in support of the Indictment or Information.

    I think it serves both functions. Didn't Lester identify the affidavit with the 'Information' at Zimmerman's first court appearance?

    If the affidavit wasn't the 'Information', what was?

    Three documents (none / 0) (#27)
    by cboldt on Wed Jun 06, 2012 at 10:12:12 AM EST
    I'll agree with Jeralyn, that the affidavit is technically in support of the arrest warrant.  But all three documents happen to swirl around "at the same time and in the same place" in this case.

    There is an arrest warrant, directed to the sheriff.  Zimmerman submitted to arrest, and appeared on April 12th.

    There is an "Information" or in the alternative (not present here) an indictment.  This is the formal charge from the state against defendant.  It recites the statutory offense, substituting Zimmerman and Martin as particular actors in the offense.

    And there is an affidavit that describes the evidence to support both the arrest warrant and the information, swears the evidence is believed true, and that the prosecution is brought in good faith.

    I think I have that right.  Hadn't reviewed the capias (or don't recall looking at it) before today.


    Oops. (none / 0) (#122)
    by nomatter0nevermind on Wed Jun 06, 2012 at 10:56:18 PM EST

    Of course that wasn't Lester.

    The Information (none / 0) (#181)
    by friendofinnocence on Thu Jun 07, 2012 at 11:18:25 AM EST
    At Zimmerman's first hearing, Herr said he had received the Information the previous day at 4 PM.

    If it has been made public, I don't recall seeing it.


    Exactly.. (none / 0) (#26)
    by deanno on Wed Jun 06, 2012 at 10:12:05 AM EST
    Ms Corey stated on HLN, in March I believe, that she had met with the Martins and had "prayed with them".. She is NOT paid to be a professional grief counselor.

    Her job is to see whether or not GZ committed a crime on 2/26.  It is not to "seek justice" for victims--b/c one can argue that being attacked and pummeled by Martin (while on top of him) makes George Zimmerman the victim here.

    I would have thought... (none / 0) (#35)
    by unitron on Wed Jun 06, 2012 at 11:20:28 AM EST
    ...that it was her job to seek justice for the victim, and that it was up to the court to see if an actual crime was committed and by whom under what circumstances.

    Of course she needs to first make a determination if, in her professional opinion, there is indeed a "justice-needing victim" and an actual violation of the law, but then we have the safeguard in place of making her go into court and prove it.

    Which doesn't mean I don't smell politics all over this, and none of that should be taken as my opinion on which party, if either, was in the right or in the wrong that wet February night.


    If I commit a murder (5.00 / 2) (#48)
    by TeresaInPa on Wed Jun 06, 2012 at 01:18:56 PM EST
    when I go to court and they state the case they say, Teresainpa verses the people of the state of Pa.  not Teresainpa verses joescmuckwhomighthavedesevedit. The court case is not about the victim.  It is about the law of the state or the nation and the people of the state or nation and right we have to expect our fellow citizens to follow those laws so that we do not have to live in anarchy.

    Actually, it would be the State v. you. (none / 0) (#55)
    by oculus on Wed Jun 06, 2012 at 01:46:41 PM EST
    Not sure it changes anything (none / 0) (#29)
    by cboldt on Wed Jun 06, 2012 at 10:20:58 AM EST
    If the affidavit is required to support the arrest warrant, not the information, then Rule 3.140 isn't applicable at all.  But I don't see anything in 3.121 that requires including exculpatory evidence in an affidavit in support of arrest, either.

    Just to reiterate, I'm not arguing that the charge was justified, I don't think it is.  And rewording my remark that the affidavit isn't evidence of an unethical charge (of course it is), I think the absence of exculpatory information in the affidavit is "normal procedure" under FL practice, and that noting the omission, without more, gets nowhere.

    The case against Corey has to look at what she had for evidence, how she concluded that Zimmerman was not entitled to 776.032 (she has to conclude this, but that conclusion is implied, not stated on the affidavit), and how she concluded that Zimmerman acted with depraved mind (this does have to appear in the affidavit).

    ABA Standards For Prosecution Function (5.00 / 1) (#98)
    by Handbasket2H3LL on Wed Jun 06, 2012 at 04:51:11 PM EST
    Florida has adopted the ABA Standards For Prosecution Function.


    3-3.6 Quality and Scope of Evidence Before Grand Jury

    (b) No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.

    3-3.6 is incorporated by reference into 3-3.7

    3-3.7 Quality and Scope of Evidence for Information

      Where the prosecutor is empowered to charge by information, the prosecutor's decisions should be governed by the principles embodied in Standards 3-3.6 and 3-3.9, where applicable.


    thanks, I elaborate (none / 0) (#120)
    by Jeralyn on Wed Jun 06, 2012 at 09:49:10 PM EST
    on this below. (I didn't know Florida had adopted them.)

    No Luck Searching (none / 0) (#32)
    by nomatter0nevermind on Wed Jun 06, 2012 at 10:47:59 AM EST
    I googled this, and didn't find a single article by a major news organization. There's one from an outfit I haven't heard of, but it doesn't mention contacting Corey or the administration of Harvard Law School for comment.

    For the moment, Dershowitz's hearsay seems to be the only information available.

    Btw, on my first search the second item was this very thread.

    Not sure if this qualifies as "major" (none / 0) (#40)
    by cboldt on Wed Jun 06, 2012 at 12:07:32 PM EST
    Alan Dershowitz says Zimmerman prosecutor went on '40-minute rant,' threatened to sue Harvard - Jeff Weiner, Orlando Sentinel

    Asked about the Newsmax column today, a Corey spokeswoman said "we're not going to comment about that."

    And the Sentinel references the (4.00 / 4) (#43)
    by Anne on Wed Jun 06, 2012 at 12:27:40 PM EST
    NewsMax article that Jeralyn linked to in her post.

    I think NewsMax is the primary source.

    Given that Dershowitz did not speak to Angela Corey, and could only relate what had been related to him, I think he might have been better off leaving someone else's description - "whining" - along with some of his more snide rhetoric, out of his own telling.

    Doesn't say much for NewsMax, either, that they just took Dershowitz's version of a conversation he did not have and accepted it as "commentary."  But then, I don't know that, in general, there is much to be said for NewsMax.


    If what Dershowitz is saying is true (5.00 / 1) (#70)
    by Slayersrezo on Wed Jun 06, 2012 at 02:42:17 PM EST
    ..about what Corey did, and more to the point if he is right about her misbehavior as a prosecutor in this case, then your complaint about him using the word "whining" is the height of pettiness.

    If I was more sure ( I'm only "reasonably" sure, not "beyond a reasonable doubt") that my opinion about what Corey has done with this case is accurate, I'd be inclined to attach names to her as a person that would be far more ...descriptive emotionally... than "whining".


    The Author of the NewsMax article (none / 0) (#44)
    by cboldt on Wed Jun 06, 2012 at 12:49:21 PM EST
    The NewsMax article carries Dershowitz name as the author, which is as primary as it gets when seeking Dershowitz's words.

    I agree with your criticism of Dershowitz, in that that he doesn't claim to have heard the conversation, yet he feels free to characterize it without naming his source other than Harvard University Office of Communications.  But setting aside the "rant" and "nonstop whining" characterizations, I find his accusations to be credible.  That is, I believe Corey initiated a 40 minute call including specific threats of legal and professional action against Dershowitz and Harvard, justification for the affidavit being void of reference to exculpatory evidence, and her hands being tied as to making a public response to Dershowitz's criticism - although I am scratching my head as to how a slander and libel suit wouldn't be a public response.

    The rest of the article is his opinion, which anybody is free to reject.


    Yep, (none / 0) (#52)
    by bmaz on Wed Jun 06, 2012 at 01:34:00 PM EST
    I am inclined to agree completely. Dershowitz can often get excitable and over the top, what I usually term "hyperbolic", but as to the base facts, as you say, I see no reason to doubt that. And that alone is enough to paint a pretty ugly picture of Angela Corey in my book. First off, she looks like an idiot; she has no libel or slander action whatsoever against Dershowitz, second she is a public person in this instance.  Most of all, it just looks nuts.

    I wonder ... (none / 0) (#57)
    by cboldt on Wed Jun 06, 2012 at 01:52:16 PM EST
    Rather than threatening Dershowitz, if Corey could mount a two-pronged defense.  Compose a letter to Dershorwitz explaining his technical error as to what must be in the four corners of the affidavit (noting the affidavit covers a smaller scope that what she is obliged to consider before reaching a charging decision), and somehow cause this explanation to be publicized.  She would not be remarking about any particular case, she would merely be educating the public about one facet of the legal process in general.

    That doesn't prevent Dershowitz from criticizing her decision, as he could reframe it.

    Thinking about it, Corey's explanation that she can cough up the exculpatory material AFTER charging, sort of fans the flames.  She should have made the point that she has a duty to account for the exculpatory material BEFORE charging, not just in pretrial discovery, motions and during trial - and that it merely an oddity of FL procedure that exculpatory material need not be presented in the charging instrument and supporting affidavit.  That implied in any charge is that she had considered all of the evidence in favor of defendant's access to Chapter 776, and when she charges, it means she has concluded the justification argument will probably fail at trial.


    Except that's not Corey's (3.00 / 2) (#63)
    by amateur on Wed Jun 06, 2012 at 02:13:11 PM EST

    Thinking about it, Corey's explanation that she can cough up the exculpatory material AFTER charging, sort of fans the flames.  She should have made the point that she has a duty to account for the exculpatory material BEFORE charging, not just in pretrial discovery, motions and during trial ...

    That's Dershowitz's characterization of her argument.  More than one grain of salt required, I think.  


    Before or after ... (none / 0) (#75)
    by cboldt on Wed Jun 06, 2012 at 02:58:33 PM EST
    -- That's Dershowitz's characterization of her argument. --

    This is what he said ...

    She insisted that she is entitled to submit what, in effect, were half truths in an affidavit of probable cause, so long as she subsequently provides the defense with exculpatory evidence.

    Now, in her plea to Harvard, she might have emphasized that she has an obligation to review and weigh all the exculpatory evidence before deciding to charge, and that she did so.  And that she also has a duty to disclose all the exculpatory material to defendant, before trial, as Dershowitz well knows.  But this direct statement by Dershowitz seems to have Corey focused on the information/indictment as a starting point, not a midpoint or waypoint in the process.

    At bottom, Dershowitz is saying the indictment lacks merit, because the self defense argument appears strong.  If she is to rebut the allegation that she's unethical, Corey needs to make the general point that the presence of the indictment is a signal that she considered all the exculpatory evidence, and the self defense statute (which, she might say, she is bound to, as well), and found the justification for use of force by defendant to be weak at best, perhaps totally absent.


    I just think it's pointless (4.00 / 4) (#79)
    by amateur on Wed Jun 06, 2012 at 03:25:07 PM EST
    to weigh in and judge Corey's argument as relayed by Dershowitz. We don't know what she said, and any retelling by him will necessarily be self-serving. He's accusing her of being unethical with nothing more than his own personal opinion that injuries to GZ necessarily prove self defense.  He hasn't seen all of the evidence and has no reason to believe that she didn't consider all of it before deciding to indict.  

    Sure (none / 0) (#64)
    by bmaz on Wed Jun 06, 2012 at 02:14:00 PM EST
    Make it a general response and just have her press officer release it.  They have demonstrated their ability to deal with the press already; so long as it is general, as you suggest, and does not comment on the evidence specifically in St v. Zimmerman, I see no reason they could not do that.

    Pot and Kettle (none / 0) (#131)
    by nomatter0nevermind on Thu Jun 07, 2012 at 12:09:33 AM EST
    Dershowitz is no stranger to selective omission and outright misrepresentation of facts. See his book on the O.J. Simpson case, and his books on Israel/Palestine.

    Yes, Thanks (none / 0) (#121)
    by nomatter0nevermind on Wed Jun 06, 2012 at 10:36:35 PM EST
    I missed that, or it wasn't up yet when I searched.

    Just curious about your resume, Jeralyn... (none / 0) (#36)
    by magster on Wed Jun 06, 2012 at 11:20:35 AM EST
    Were you ever a prosecutor? If so, did your bosses ever put pressure on you to "push the envelope" between winning and public interest?

    never been a prosecutor (none / 0) (#39)
    by Jeralyn on Wed Jun 06, 2012 at 12:03:25 PM EST
    nor would I be. I've always a criminal defense lawyer.

    Can the State of Florida (none / 0) (#46)
    by DebFrmHell on Wed Jun 06, 2012 at 12:56:54 PM EST
    "leverage" the possible future charges against Shellie Z in an effort to pursuade George Z to plea down? To say a manslaughter charge?

    This was suggested elsewhere and I responded that I thought it would be unethical for the prosecution to do such a maneuver.  

    Sorry, if this is deemed off topic.

    I have been screwing this post up all day today so I have given up and just CCP'd myself.  Without the benefit of an edit key, I am probably doing it again!  LOL! Please forgive...

    Yes, they can. (none / 0) (#74)
    by Donald from Hawaii on Wed Jun 06, 2012 at 02:58:18 PM EST
    Now, whether that's the right thing to do is a whole 'nother issue entirely.

    Personally, were prosecutors to leverage the prosecution of Shellie Zimmerman's alleged perjury on an unrelated matter in plea negotiations with her husband, in an effort to get him to fold on a cpaital case, I'd find that highly unethical.

    But that's just me.


    Seems to me just filing the perjury (none / 0) (#96)
    by oculus on Wed Jun 06, 2012 at 04:36:10 PM EST
    charge gives the prosecutor "leverage."  

    Just a technicality (none / 0) (#130)
    by expy on Thu Jun 07, 2012 at 12:09:29 AM EST
    This is not a "capital" case.  

    The term "capital case" refers to one where there is a possibility of a death penalty being imposed; i.e., capital case = capital punishment.


    Timing and Content (none / 0) (#50)
    by cboldt on Wed Jun 06, 2012 at 01:22:03 PM EST
    Corey has the ethical duty to consider all the evidence and all the statutes.  In other words, by charging Zimmerman, she is implying that he does not meet the elements of Chapter 776, justified use of force.

    Having acted with legal justification, and being guilty of murder are mutually exclusive categories, but Corey doesn't have a duty to juxtapose these in the four corners of the charging document or supporting affidavit.  That doesn't mean she has no duty to account for them, just that the accounting for justified self defense isn't presented in the charging document or supporting affidavit.

    There is no allegation of racial animus, just that the killing was with a depraved mind.  Reading between the lines, the state's theory appears to be that Zimmerman chased Martin, eventually caught and confronted him (all the while Martin is trying to get away), and Martin held a position of superior force (assumed to be gunpoint) while Martin yelled for help for half a minute, then Zimmerman shot Martin.  If you find that scenario, it's second degree murder, slam dunk.  However, the state doesn't assert that fact pattern.  It only insinuates it with snippets of disconnected evidence.

    In principle, the justification for presenting the state's side, while omitting the self defense angle, is that the prosecutor may not ethically charge unless she believes she can defeat the self defense claim at trial.  And likewise, she may not charge unless she believes she can prove all elements of the offense.

    The burden is on the state to produce evidence of the charge.  The burden is on defendant to produce evidence of self defense.

    She sounds (none / 0) (#69)
    by Ga6thDem on Wed Jun 06, 2012 at 02:39:16 PM EST
    like she needs a thicker skin. Does she not realize that people all over the place are going to be making comments on this case?

    Around here whining is typically used to describe (none / 0) (#94)
    by Kyreth on Wed Jun 06, 2012 at 04:33:18 PM EST
    petulant complaining, and is applied equally to either gender.  It's likely it means the same to Dershowitz so I'm not so sure it's right to assume a sexist connotation.

    To me, Mr. Dershowitz is also (4.20 / 5) (#95)
    by oculus on Wed Jun 06, 2012 at 04:34:59 PM EST
    "whining."  So, I suppose you are correct re this particular exchange.  

    Judge sets date for a hearing as June 29th (none / 0) (#104)
    by willisnewton on Wed Jun 06, 2012 at 05:44:28 PM EST
    Looks like this is not something Mark O'Mara filed for, but instead something the judge has requested, despite whatever spin MOM wants to put on it.  He announced he wasn't asking for a new bond hearing, and now there is some sort of hearing set...

    Orlando Sentinel has story that links to a leak to local Fox news.  

    This may be a hearing for the judge to question the Zimmermans en masse about the Pay Pal and passport issues.

    the judge cannot question (none / 0) (#110)
    by Jeralyn on Wed Jun 06, 2012 at 06:13:23 PM EST
    Zimmerman without his consent. He has a 5th Amendment right to say nothing.

    It appears... (none / 0) (#115)
    by DebFrmHell on Wed Jun 06, 2012 at 08:13:46 PM EST
    by looking at the docket that there is no court on Fridays but the 29th is a Friday.  

    Do they make exceptions to open a court for special hearings?

    I am very confused.


    Confirmed to be Bond Hearing (none / 0) (#190)
    by Redbrow on Thu Jun 07, 2012 at 03:21:36 PM EST
    Media Advisory: Bond Hearing June 29, 2012     

    MEDIA UPDATE: State v. Zimmerman (2012-CF-001083-A) Bond Hearing Scheduled for June 29
    Circuit Judge Kenneth R. Lester will preside over a bond hearing for George Zimmerman on Friday, June 29, at 9:30 a.m., in courtroom 5-D of the Criminal Justice Center in Sanford.

    Some comments which (none / 0) (#112)
    by Jeralyn on Wed Jun 06, 2012 at 07:40:29 PM EST
    assumed a probable cause hearing was held or would be held on the state's probable cause affidavit have been deleted. There was no probable cause hearing in this case. Florida law doesn't provide for a hearing when a capias has issued, the defendant is in custody having been arrested on the capias and the state has formally filed charges. Instead, the judge just examines the affidavit and renders a probable cause finding. That's what happened here. The minutes of GZ's first appearance are here.


    (a) Nonadversary Probable Cause Determination.

    (1) Defendant in Custody. In all cases in which the defendant is in custody, a nonadversary probable cause determination shall be held before a judge within 48 hours from the time of the defendant`s arrest; provided, however, that this proceeding shall not be required when a probable cause determination has been previously made by a judge and an arrest warrant issued for the specific offense for which the defendant is charged. The judge after a showing of extraordinary circumstance may continue the proceeding for not more than 24 hours beyond the 48-hour period.

    ....(3) Standard of Proof. Upon presentation of proof, the judge shall determine whether there is probable cause for detaining the arrested person pending further proceedings. The defendant need not be present. In determining probable cause to detain the defendant, the judge shall apply the standard for issuance of an arrest warrant, and the

    The affidavit was filed with the county court five minutes before GZ's first appearance on April 12. Judge Mark Herr, who conducted the first appearance, approved it at the beginning of the hearing without discussing its contents or asking for opinions.  With his rubber-stamping the affidavit, and the Information having been filed, the capias issued and GZ in custody,  no  probable cause hearing was necessaary or provided for.

    Only if Zimmerman had been arrested and no charges filed within 21 days would he get an adversarial probable cause hearing.

    Florida's rule is different than most places I am familiar with and the federal rules. Usually, when the prosecutor charges a felony (or in some places a serious felony) by way of Information rather than obtaining a grand jury indictment, there is an adversarial probable cause hearing called a preliminary hearing.  The state produces evidence, the defense gets to challenge it, and the judge, viewing the evidence in a light most favorable to the state, decides if there is probable cause. When an Indictment is returned, there's no need for a probable cause hearing because the Indictment is considered probable cause.

    Florida's unusual procedure seems like a rubber-stamping to me, making it even more critical in my view that the affidavit include not only the facts supporting probable cause, but those refuting it. How else can judge make an informed and independent determination as to whether probable cause exists?

    Shorter version: The judge found probable cause at Zimmerman's first appearance based on his review of the affidavit which he said he had received five minutes before the start of the hearing. No discussion or debate was had, and no evidence was presented or challenged. His determination there was probable cause was based solely on the affidavit,  and no hearing was necessary since charges had been filed, a capias had issued and GZ was in custody.

    Wow (5.00 / 1) (#113)
    by Slayersrezo on Wed Jun 06, 2012 at 08:03:20 PM EST
    That is indefensible.

    It also puts paid to the assertion that the Judge examined all the evidence before allowing this case to proceed. With five minutes, and no more information than what we've already seen, that would be impossible, I would think.


    SCOTUS Decision Says OK (none / 0) (#116)
    by Michael Masinter on Wed Jun 06, 2012 at 09:11:45 PM EST
    SCOTUS held in part III of Gerstein v. Pugh that the constitution does not require an adversarial hearing on probable cause if the prosecutor timely files a probable cause affidavit.

    It may or may not be legal (none / 0) (#119)
    by Slayersrezo on Wed Jun 06, 2012 at 09:48:46 PM EST
    Even assuming Gerstein totally applied here, something which I, not being a lawyer, can't speculate on, the question really is, is this an ethical way to run a justice system?

    Also not that Gerstein v. Pugh (none / 0) (#132)
    by expy on Thu Jun 07, 2012 at 12:13:31 AM EST
    arose out of Florida -- so basically Florida is doing exactly what the US Supreme Court told them they could do.  

    Not convinced of that. (none / 0) (#203)
    by Gandydancer on Fri Jun 08, 2012 at 12:41:37 AM EST
    Still reviewing Gerstein, but SCOTUS therein ordered the availability of a prompt 4th Amendment probable cause hearing by a judicial officer. Jeralyn says Judge Herr got the Information five minutes before the First Appearance/Non-Adversarial Probable Cause/4th Amendment hearing and the video shows him declaring a finding of probable cause one minute into the hearing, with no pause to examine it. And we can clearly see that, whatever the boilerplate Corey alleges in the Information, the underlying Affadavit of Probable Cause is sorely deficient. And this appears to be SOP. So this is sham acqiescence to 4th amendment requirements, but actually a violation. IMHO.

    Hearing vs. Determination (none / 0) (#211)
    by cboldt on Fri Jun 08, 2012 at 05:07:31 AM EST
    I'll have to read Gerstein, but careful with the word "hearing."  "Hearing" is often taken to imply an adversarial process where both sides are permitted to submit evidence and argument.  Although I do notice the presence of a "non-adversarial hearing" in the FL Rules.

    At this point, I'm looking at the first/preliminary appearance as a point where the court must ascertain the presence of probable cause in order to justify holding defendant; in a similar way a magistrate does that when the police request a search warrant.  And when the police request a search warrant, the defendant isn't even there, but probable cause has to be there.

    Ok, from the Gerstein headnotes "The probable cause determination, as an initial step in the criminal justice process, may be made by a judicial officer without an adversary hearing".

    You are correct that the Information is almost pure boilerplate.  It restates the elements of the charged crime, without associating those elements with any evidence.  The probable cause determination is taken from the affidavit.  The judge can't be held to account for mistaken statements of fact [e.g., Zimmerman was told to wait]; or statements made on weak or flawed testimony [the voice screaming for help was Martin], but does have to find, assuming the facts as stated are true, those facts constitute the charged crime as a matter of law.


    And I thought he said he did, ... (none / 0) (#232)
    by Gandydancer on Fri Jun 08, 2012 at 12:06:42 PM EST
    ...though I should review exactly what he said at the 1 min mark of the FA in the light of my present greater (I hope) understanding.remember quoting it on an earlier thread... But I gotta hit the sack.

    The two problems are (a) the APC in fact does not state the elemwents of the crime as claimed by the information, and (b) Herr had and took no time to examine the APC. I think all he did was look that the Information was properly filled out.

    Under Florida law PC is not his business. The Magistrate who signed off on the warrant took care of that. See #230 and #112. But we agree, if I understand you correctly, that Gerstein doesn't accept that and Herr must do it. But I don't think he did. What am I missing?


    I don't think you're missing anything (none / 0) (#234)
    by cboldt on Fri Jun 08, 2012 at 12:59:55 PM EST
    Now I'm curious about who signed the capias.  The docket gives no clue about who signed the capias, doesn't say it was signed by a judge (I've seen a docket entry in an unrelated case with a CISG entry that says "Capias signed by judge and issued"), and says it was signed on the 11th.  The return sheet (which looks like the capias to me) only has the name of the clerk of the court.

    The affidavit was faxed to the court on April 12th, the same day Judge Herr saw it, but the day after the capias issued.  It may be that Herr is the first judge to have an opportunity to review the prosecutor's affidavit.  I'm speculating that the justification for allowing a non-judicial issuance of the capias (if that is what happened here) is that the matter must go and did go before a judge within 24 hours of arrest.

    It looks like a rubberstamp job to me, by Herr; with little time for review.  I see a pattern here, last minute motions, etc.


    Hearing before Judge Herr (none / 0) (#250)
    by Gandydancer on Sat Jun 09, 2012 at 01:26:20 PM EST
    Hearing before Judge Herr

    "I just received here, moments ago, a two-page((sic? Should be three? Missing page?)) affadavit...to stand for probable cause for filing of an information in this matter...[@~1:00] After reviewing the short Affadavit for Probable Cause I do find that probable cause [exists] for the charge as put in the information."

    So, he understood what his duty was. Just didn't think it was entitled to much attention.


    As Michael says below (none / 0) (#123)
    by bmaz on Wed Jun 06, 2012 at 11:22:35 PM EST
    ...this is minimally legal. Even so, it is one crappy way to do justice in a criminal context. I know we are a little slow and backwards out here in the greater 9th Circuit and all, but holy crap, the unavailability of a true probable cause process in Florida (and my understanding is they do not GJ most cases except capital cases where required), just dumbfounds me.  

    But, this is indeed the case. I went diving into this issue immediately prior to the initial appearance/arraignment and after and was just shocked. That 5 second "hey I gots a piece of paper here, looks good!" by Herr was it.  Jeebus.


    Corey (none / 0) (#124)
    by Tov on Wed Jun 06, 2012 at 11:34:21 PM EST
    I preface by stating I am not a lawyer. However, it would be a miscarriage of justice if Corey's alleged misbehavior charged by AD and others prevent GZ from receiving a fair trial and TM's family from having their days in court as well. I have my own theory as to what happened that night but that is for me to know and in the final analysis for the state to prove and a jury to decide. I will say this however- that SYG is one of the biggest mistakes American legislatures and Governors have made in recent history.

    thanks, but we are not (none / 0) (#125)
    by Jeralyn on Wed Jun 06, 2012 at 11:36:48 PM EST
    discussing the wisdom of SYG laws here. (Just a reminder for others not to chime in on this topic.)

    Corey (none / 0) (#127)
    by Tov on Wed Jun 06, 2012 at 11:48:02 PM EST
    My apologies, I happened to see a few references to SYG on this thread as it relates to the documents being debated...but I see your point.

    If you are so committed to full disclosure (none / 0) (#129)
    by expy on Thu Jun 07, 2012 at 12:03:42 AM EST
    you might mention to the nonlawyers who read this board that Franks v. Delaware involved a SEARCH warrants, not and ARREST warrants, and that Beck v. Ohio involved a motion to suppress evidence after a warrantless arrest.

    Also, Franks v. Delaware allows a defendant to challenge a search warrant where the affidavit includes a false statement knowingly and intentionally, or with reckless disregard for the truth  and the false statement is necessary to the finding of probable cause.  It does not involve gratuitous omissions.

    A "probable cause" finding does not require exclusion of all possible innocent explanations; it just requires facts sufficient to support a reasonable suspicion.  

    it also will supply the ommitted facts (5.00 / 1) (#136)
    by Jeralyn on Thu Jun 07, 2012 at 02:19:59 AM EST
    if that will result in or defeat probable cause

    Franks is perfect here. We have a deliberate and reckless misstatement ofsome  material facts and omission  of other material facts -- from GZ not disobeying the dispatcher, to him saying "ok" when asked not to follow, to his father identifying his voice as the person crying out for help, and much more. Add the omissions back in, and they likely defeat probable cause..


    How? (none / 0) (#140)
    by expy on Thu Jun 07, 2012 at 03:58:32 AM EST
    Does that bring Trayvon Martin back to life?

    Zimmerman shot Martin, and admitted that he shot Martin. Martin was unarmed.

    Whether or not it was justifiable as self defense is a jury question, not something that defeats probable cause.


    bringing TM back to life (5.00 / 1) (#184)
    by Jeralyn on Thu Jun 07, 2012 at 11:52:48 AM EST
    is not a factor in any legal equation. Every killing is not a crime and as a lawyer, you know that.

    You also know that Florida has an immunity statute which says that under certain circumstances, a person who kills another person is immune from prosecution. If the affidavit contained all the facts, along with the affiants' sworn belief that a consideration of all the facts amounted to probable cause, it is the neutral and detached magistrate's job to decide whether probable cause does in fact exist. The judge could agree or disagree.

    Here, a judge did not have all the facts available to the prosecution since so many were left out and some were misrepresented.


    Not in the first instance... (none / 0) (#160)
    by Gandydancer on Thu Jun 07, 2012 at 09:03:09 AM EST
    ...a question for the jury, in Florida. (1)First it is a question for the prosecutor before information or indictment; then (2) (maybe -- this is the question at issue) at the issuance of the warrant or at the First Appearance if there is no warrant; then (3) for a judge at the SYG hearing, and (4) only then, finally, a question for the jury.

    Self defense can defeat probable cause (none / 0) (#163)
    by cboldt on Thu Jun 07, 2012 at 09:16:13 AM EST
    The SPD found self defense, otherwise it would have arrested Zimmerman instead of sending the results of its investigation to Wolfinger.  So, for SPD, self defense defeated probable cause that the incident was manslaughter, murder, or some other chargeable offense on Zimmerman's part.

    This is not an unusual outcome.

    Corey had another case where the police arrested a suspect, an Armenian who had fled the scene of a shooting, then turned himself in an hour or so later.  After Corey deliberated on the evidence, she released the suspect.  In that case, self defense defeated probable cause that she could obtain a conviction.

    That is not an unusual outcome, either.


    Can O'Mara - West End This Farce Now? (none / 0) (#182)
    by Handbasket2H3LL on Thu Jun 07, 2012 at 11:21:35 AM EST
    Motion To Dismiss For Lack of Probable Cause

    Unfortunately, (none / 0) (#183)
    by NYShooter on Thu Jun 07, 2012 at 11:32:18 AM EST
    uninformed outbursts are not grounds to dismiss.

    But, keep trying


    You will finally get the picture when (none / 0) (#187)
    by Handbasket2H3LL on Thu Jun 07, 2012 at 02:22:12 PM EST
    the 1983 action + state law claims are filed. West joined O'Mara with the eventual pay day in mind. O'Mara learned of future pay day while grilling Gilbreath at the bond hearing. "No evidence to support the probable cause affidavit, you say?"  Hmmmmm, Ca-ching, Ca-ching $$$$ Of course there will also be bonus rounds against Crump, Julison, Media (doctoring audio tapes, he said coons, etc).

    Dershowitz has known all about Franks for decades. Only Corey doesn't get it. LMAO



    As to others, maybe. (none / 0) (#207)
    by Gandydancer on Fri Jun 08, 2012 at 04:11:11 AM EST
    But what is needed to defeat prosecutorial immunity?

    And only detention is at issue (see elsewhere on this thread). Z should be able to get and afford bail (though you don't get back the 10%, so it looks like real money to me, but maybe not in comparison to the cost of pursuing the issue). And that would moot it, right? If the judge denied bail, that would be a different ballgame, though the probability of meaningfully prompt relief could then be a question.


    And there is a question... (none / 0) (#214)
    by Gandydancer on Fri Jun 08, 2012 at 05:32:46 AM EST
    ...of timeliness. Fla Crim Proc
    (c) Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:

    (1) The defendant is charged with an offense for which the defendant has been pardoned.
    (2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.
    (3) The defendant is charged with an offense for which the defendant previously has been granted immunity.
    (4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

    Expy, are you drunk? Franks applies to both (none / 0) (#135)
    by Jeralyn on Thu Jun 07, 2012 at 01:52:44 AM EST
    Of course Franks v. Delaware applies to arrest warrants. It applies to probable cause showings for all warrants under the 4th Amendment. Even in Florida:

    See, for example, State v. Swain, 689 So. 2d 343, 344-345 (Fla. Dist. Ct. App. 4th Dist. 1997)

    Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's  [*345]  false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.438 U.S. at 155-56.

    While the Court was considering a search warrant, our supreme court has applied the same analysis to arrest warrants. Johnson v. State, 660 So. 2d 648 (Fla. 1995), cert. denied, 116 S. Ct. 1550 (1996); Harris v. State, 438 So. 2d 787 (Fla. 1983), cert. denied, 466 U.S. 963, 80 L. Ed. 2d 563, 104 S. Ct. 2181 (1984).

    Or Debord v. State, 422 So. 2d 881, 882 (Fla. Dist. Ct. App. 2d Dist. 1982)

    the court is permitted to excise the false parts of the affidavit. If the remaining allegations of the affidavit will still support a probable cause determination, then the court may find that the warrant is valid. If not, then the warrant is invalid, and the arrest is unlawful. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); State v. Bogard, 388 So.2d 1296 (Fla. 4th DCA 1980).

    Under the circumstances here, the entire portion of the affidavit concerning Johnson's alleged statements should have been excised. Without these statements, probable cause will not lie to support the warrant on the basis of the affidavit. Therefore, appellant's  arrest was unlawful. Since the aforementioned statements and items were a product of the unlawful arrest, they should have been suppressed as fruits thereof. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).

    Where an affidavit forms the actual basis of a warrant, the trial court has the duty to determine if the statements contained therein are, in fact, untrue. If so, the court is permitted to excise the false parts of the affidavit. If the remaining allegations of the affidavit will still support a probable cause determination, then the court may find that the warrant is valid. If not, then the warrant is invalid, and the arrest is unlawful. Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978); State v. Bogard, 388 So.2d 1296 (Fla. 4th DCA 1980).

    One more: Francis v. State, 412 So. 2d 931, 932-933 (Fla. Dist. Ct. App. 1st Dist. 1982)

    Whether a material misstatement in the supporting affidavit voids a warrant depends upon whether the misstatement was merely innocent or negligent or was intentional or reckless, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Mathes v. State, 375 So.2d 1084 (Fla. 1st DCA 1979). Upon proper allegations the trial court is required to hold a pretrial evidentiary proceeding on this issue. This was done in this case with deposition  testimony substituting for live testimony. After reviewing the evidence and hearing argument the court below denied the motion to suppress.    A finding of innocent or negligent misrepresentation is supported by the record. Furthermore had the accurate word "tentative" been substituted for "positive" in the affidavit, cf. Mathes, supra, there would have been sufficient cause for the arrest warrant to issue. The admission of the confession and weapon was not error.

    Francis v. State, 412 So. 2d 931, 932-933 (Fla. Dist. Ct. App. 1st Dist. 1982)


    And what do you suppose the remedy would be? (none / 0) (#139)
    by expy on Thu Jun 07, 2012 at 03:52:53 AM EST
    If a search warrant is deemed invalid, evidence seized pursuant to that warrant is suppressed.  

    If O'Mara had challenged the probable cause affidavit in the Zimmerman case, and had it been determined to be invalid, the "remedy" would have been Zimmerman would have been released from custody while the prosecution drew up a more precisely worded affidavit, prior to re-arresting Zimmerman.

    I'd point out that if you excise all of the parts of the affidavit you don't like, you've still got a an armed man shooting an unarmed man. That's enough to support a "reasonable suspicion" that the shooter is guilty of homicide.  

    If anything, the affidavit was more detailed than it had to be.  


    The remedy (none / 0) (#143)
    by cboldt on Thu Jun 07, 2012 at 04:59:38 AM EST
    Imagine a hypothetical legal system where the charging document is required to recite all the elements of 776.032.  For example, the murder statute says "unless justified under Chapter 776."  If the court, on reading the charging document, found that Zimmerman's use of force was justified by F.S. 776.032, the statute provides the remedy.

    ... immune from criminal prosecution and civil action for the use of such force ... the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

    This was precisely the conclusion of the SPD.  But moving in the FL legal process, chapter 776 justified use of force is not part of stating a murder charge.  The opening phrase of the murder statute says "unlawful killing," so the killing is necessarily outside of 776.

    The prosecutor's adoption of DeeDee's testimony as true, and Sybrina's testimony as true, results in the prosecutor reaching the opposite conclusion as to 776.032.  Martin was screaming for help, so inferentially, was in inferior physical position.  After more than half a minute of holding Martin at gunpoint, Zimmerman shot Martin.  776.032 is out the window, murder is in.  The charging document now has to make the case it was murder, not make the case that it was justified use of force in self defense.

    Assume the affidavit does not support murder.  I think it does not, because it fails to make factual allegations that make depraved mind.  The remedy is to dismiss the charge.  But Zimmerman does not obtain immunity.  The affidavit could be rewritten to the narrative I've suggested, that Zimmerman held Martin at gunpoint; or it could be rewritten to a different narrative to support some form of manslaughter charge.  Still, 776.032 is out the window, under FL formalities.

    I'm trying to recall any indictment instrument that I've read, that outlined the defendant's defense - and I'm coming up blank.  Does the indictment have to recite the defendant's alibi, if he has one and expressed it during the investigation?  I'm thinking that it's a quirk of the legal process that exculpatory material is invisible in the charging instrument.  It's usually invisible when the prosecution presents its case to the jury, too, but we tolerate that because the defendant has opportunity to present his case too.

    Finally, the legal system necessarily has imperfections.  In a perfect system, unjustified charges aren't brought.  Nifong is caught before he subjects innocents to the legal mill; the prosecutor always makes ethical decisions, etc.  In the imperfect system, errors by the police, prosecutor, judge, or jury are (mostly) ferreted out later in the process.  Zimmerman will get his day, and Corey will get hers, too.


    "guilty of homicide"?? (none / 0) (#166)
    by Gandydancer on Thu Jun 07, 2012 at 09:34:44 AM EST
    Not a crime.

    Corey's former colleague speaks out (none / 0) (#142)
    by Redbrow on Thu Jun 07, 2012 at 04:45:29 AM EST
    in support of her. (big surprise)

    Richard Kuritz, a former prosecutor who worked with Corey but now works as a defense lawyer, supported her position. Kuritz said Corey had no obligation to include exculpatory evidence in the affidavit.

    Kuritz said some of the public that once praised her for arresting Zimmerman has now turned on her as evidence that may support the defense, as there is in most cases, is being made public.

    "The only reason Dershowitz has an argument to make is because she's doing everything ethically she's supposed to do: She's turning over the evidence she's supposed to," Kuritz said.

    He added that Dershowitz could indeed face civil action for making accusations that Corey has committed a crime.

    "To suggest that she's committing any crime, Dershowitz is way off on that," Kuritz said.

    I wonder how close Kuritz is to Corey and how much insider info he might have access to. Back in April he seems to have outlined the prosecutions strategy.

    And one of the key instructions there that I think most people will key in on -- it has to be done from ill will, hatred or spite. And all I`ve been hearing about the media for the first 45 days was that this was a man who was out there and he was hating black people. I don`t know. I hope that`s not the facts of the evidence in the case but based on what we said early on, that`s all the state has to prove to establish this.

    They don`t have to prove the intent to kill -- just the intent to commit a series of acts that caused the death.

    Jeralyn is convinced... (none / 0) (#156)
    by Gandydancer on Thu Jun 07, 2012 at 08:25:52 AM EST
    ...that the "profiling" alleged is not racial.

    The State of Florida (none / 0) (#157)
    by jbindc on Thu Jun 07, 2012 at 08:32:35 AM EST
    is not alleging that either (as of now)

    As of now (none / 0) (#188)
    by Redbrow on Thu Jun 07, 2012 at 02:47:55 PM EST
    is key. There is still a lot of evidence to be released to the public. Crump and the rest of the scheme team have kept the racism angle in the spotlight and they work very closely with Corey it seems.

    The prosecution could be withholding potentially damning evidence contained in emails and messages, under the guise of protecting Zimmerman. They might want to wait, if possible, to hold on to this bomb until after the physical evidence and witnesses confirm Zimmerman's defense.


    I think (none / 0) (#193)
    by DebFrmHell on Thu Jun 07, 2012 at 04:02:17 PM EST
    it possibly has something to do with that email sent by GZ that referenced "a reverand" during the original bond hearing.

    I assumed it to be Sharpton moreso than Jackson.


    The Hatchet Fight (none / 0) (#146)
    by whitecap333 on Thu Jun 07, 2012 at 05:59:13 AM EST
    between Dershowitz and Corey is taking place in the Court of Public Opinion.  How will the public react to the claim that Judge Herr's "finding" of probable cause was purely ceremonial, signifying nothing?  The affidavit, with it's half-truths and omissions, made Zimmerman as notorious as Osama bin Laden.  This implicates, in the public consciousness, issues of fundamental fairness.  It's still "advantage Dershowitz."  

    I see, in the remarks above, the idea that only "reasonable suspicion" is necessary to a determination of "probable cause."  I do not believe this is accurate.

    From Another Blog (none / 0) (#171)
    by nomatter0nevermind on Thu Jun 07, 2012 at 09:45:53 AM EST
    Earlier discussion on another blog, possibly of interest.

    I stand Aghast (none / 0) (#179)
    by whitecap333 on Thu Jun 07, 2012 at 11:01:22 AM EST
    that you would recommend, without warning, a discussion so potentially traumatic to eggshelled psyches.

    Yet another law professor says (none / 0) (#191)
    by Handbasket2H3LL on Thu Jun 07, 2012 at 03:22:31 PM EST
    Corey should step down now. Unfortunate that he is too polite to talk about the ethical considerations regarding Corey's threats to file disciplinary and criminal charges against Dershowitz.

    http://legalinsurrection.com/2012/06/if-angela-corey-threatened-suit-against-dershowitz-and-harvard- she-needs-to-step-down-from-zimmerman-case/

    Professor Jacobsen's CV doesn't (none / 0) (#192)
    by oculus on Thu Jun 07, 2012 at 03:34:19 PM EST
    indicate expertise in prosecutorial ethics.  link

    all lawyers are charged with (none / 0) (#195)
    by Jeralyn on Thu Jun 07, 2012 at 06:15:17 PM EST
    knowing the ethical rules. You don't need to be a professor to have an opinion on what they mean. I doubt there is such a thing as a professor with expertise in prosecutorial ethics. We can all read the rules.

    I probably need to stop (none / 0) (#196)
    by oculus on Thu Jun 07, 2012 at 06:38:53 PM EST
    commenting here. It's beyond my understanding why anyone opines on Ms. Corey's ethical obligations at this stage of the case. What's the hurry?  Wait for the trial, following review of all the evidence, transcripts, rulings etc.  As to her placing a call to Harvard, there doesn't appear to be a recording or transcript.  Not her best decision, to call, but so what.

    Appearances (none / 0) (#197)
    by nomatter0nevermind on Thu Jun 07, 2012 at 06:51:59 PM EST

    Last I heard there was still no comment from the administration of Harvard Law School. I don't know how it could 'appear' that there is or is not a recording.

    Yeah, what's the hurry? (none / 0) (#200)
    by Gandydancer on Thu Jun 07, 2012 at 10:02:28 PM EST
    GZ is getting his three squares and isn't being rained on, so what's his complaint?

    Dershowitz (none / 0) (#216)
    by whitecap333 on Fri Jun 08, 2012 at 05:46:56 AM EST
    is just getting warmed up.  When you strike at a king, you have to do more than wound him.  When the release of discovery fails to substantiate these claims of "inconsistencies" and "contradictions" in Zimmerman's statements, Dershowitz will come down on Corey with atomic force.

    No News (none / 0) (#202)
    by nomatter0nevermind on Thu Jun 07, 2012 at 11:34:34 PM EST
    Latest search results negative.

    As previously noted, Corey's office has said they won't comment. Still no word at all from Harvard Law School.

    notary (none / 0) (#227)
    by friendofinnocence on Fri Jun 08, 2012 at 10:50:27 AM EST
    The only signature besides de la Rionda's on the capias was a Notary Public.

    But is that just the request? (none / 0) (#229)
    by Gandydancer on Fri Jun 08, 2012 at 11:00:28 AM EST
    Is there a warrant?

    OK, see Jeralyn's #112 above. (none / 0) (#230)
    by Gandydancer on Fri Jun 08, 2012 at 11:40:13 AM EST
    Each state and county judge is a committing judge and may issue a summons to, or a warrant for the arrest of, a person against whom a complaint is made in writing and sworn to before a person authorized to administer oaths, when the complaint states facts that show that such person violated a criminal law of this state within the jurisdiction of the judge to whom the complaint is presented...

    You've lost me (none / 0) (#236)
    by whitecap333 on Fri Jun 08, 2012 at 02:45:43 PM EST
    But I'm not a lawyer.  Anyway, I think the Constitutional niceties are satisfied if Corey can show that the totality of the evidence would warrant a reasonable conclusion that it was "more likely than not" a crime had been committed.  She just won't be able to hide behind a judge's robes.

    This could get very sticky indeed if the state prosecutor's office conducted the investigation in such a way as to minimize the danger of turning up exculpatory evidence.  There are limits to "prosecutorial immunity."


    no the capias is the warranat (none / 0) (#242)
    by Jeralyn on Sat Jun 09, 2012 at 02:12:54 AM EST
    State v. Norris (2000):

    There is, of course, a significant difference between an arrest warrant and a capias in that a capias may only issue after formal charges are levied via indictment or information, which requires the involvement of either the grand jury or a sworn statement by the State Attorney.

    The sole purpose of a capias is to get the defendant into custody.

    On one of the Florida county sheriff's websites, it explains:

    If appropriate, law enforcement presents a sworn complaint to the State Attorney with the evidence to determine whether there is probable cause to believe that a crime was committed and the suspect may have committed the crime. The State Attorney may file a document, called an information, with the Clerk of the Court charging the suspect with the criminal offense. If an information is filed, the Judge, through the Clerk of the Court, may issue a capias.

    So when the information is filed, the state's attorney requests a capias warrant which can be signed by the clerk of the court.

    The probable cause affidavit is not for the issuance of the capias, but to support the information. The judge at the first appearance , which is after the capias has been executed (served) in such cases, makes a (rubber-stamp) finding of probable cause based on the affidavit supporting the charges. Once he makes that probable cause finding based on the affidavit, there is no adversary probable cause hearing since the defendant is in custody and charges have been filed.

    So when charges haven't been filed, the police may request an arrest warrant based on an affidavit establishing probable cause. But when charges have been filed, they request a capias warrant directing the sheriff to seize the defendant based on the filed charges. The affidavit in this case is to support the charges, not an arrest.

    Shorter version: All capias warrants are arrest warrants, but not all arrest warrants are capias warrants. A capias warrant is a type of arrest warrant.

    In this case the capias warrant is one based on the direct filing of an information, and the information is supported by an affidavit of probable cause.


    So the document marked... (none / 0) (#251)
    by Gandydancer on Sat Jun 09, 2012 at 09:44:24 PM EST
    ISSUE CAPIAS containing an INFORMATION signed by de la Rionda and witnessed by a notary is only a request, and another document exists, the capias itself, signed by the Clerk of the Court at the "direction" of a judge (Fla Crim Proc 3.131(j)) possibly (or possibly not?) identifying the judge who, having in hand both the request, with its included INFORMATION (and the APC? Or does he still rely on Hardy, the Federal DC never having addressed this old stub of pre-Gerstein CP?) initially decided that PC existed for a warrant (in this case a capias)? And, if so, do you have it?

    I'm sure I've also seen another Information in which, unlike this one, the State's Attorney specifically refers to the APC and attests, among other things, specifically that the elements of the charge are supported by the APC. But I'm no longer sure whether that was in this case or a direction in the law (now obsolete?) as to exactly what form an Information must take.

    So is the first document the only Information in this case and/or the one referred to by Judge Herr? And who was the first judge, who directed the Clerk to issue the Capias and made the first (rubber stamp?) PC finding?

    And is it your opinion that Gerstein is being flouted?

    How can we find out what was (none / 0) (#252)
    by DebFrmHell on Sun Jun 10, 2012 at 02:30:30 AM EST

    In that letter from Corey to the Governor?



    I am also curious to the 3rd Supplemental Designation of Assistant State Attorney.  What does that mean?

    I am having a moment...


    Gerstein (none / 0) (#255)
    by whitecap333 on Sun Jun 10, 2012 at 10:17:43 AM EST
    "Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restrain of liberty, and the determination must be made by a judicial officer either before or promptly after arrest."

    "Fair and reliable": bet that has inspired a massive "writ history."  To a layperson, however, the plain English would seem to impose on Corey a duty to supply the "judicial officer" with the information required to discharge his Constitutional duties.

    cboldt, you are great! (none / 0) (#257)
    by DebFrmHell on Mon Jun 11, 2012 at 02:10:28 AM EST
    Thank you very much for answering my question.  I figured it got lost in the shuffle. You always seem to find the time.   Much appreciated!

    Order Revoking Bond (none / 0) (#260)
    by cboldt on Tue Jun 12, 2012 at 06:59:27 AM EST
    The docket has new entries reflection action on June 1st and later.  There is an order revoking bond, and an order setting the June 29 hearing.  Both were entered on the docket on June 11th.  I figure they'll appear on the court's document website later today, maybe tomorrow.