April 12 (Bloomberg) -- Florida prosecutors seeking to convict a neighborhood watch volunteer of murder in the shooting death of an unarmed black teenager may be hamstrung by the state’s own laws in a case defense lawyers said will also hinge on physical evidence and emergency call recordings.
George Zimmerman shot 17-year-old Trayvon Martin, on Feb. 26 in Sanford, a central-Florida town of 54,000 people north of Orlando. Zimmerman, 28, told authorities in the aftermath that he shot Martin in self-defense, a potent claim in a state with a law allowing the use of force instead of retreat by citizens who fear for their life.
Florida’s Stand Your Ground law enables individuals who feel threatened in a public place to “meet force with force,” rather than back away. The law prevented police from arresting Zimmerman in February, officials said at the time, and may play a role in derailing any conviction, according to several Florida defense lawyers.
Bruce Fleischer, a veteran criminal defense attorney in Miami, said what Zimmerman told the 911 dispatcher and what he said in his first statement to police will be key to his case. Any evidence showing he believed “his life was in danger” will be central to a self-defense claim.
“The argument is going to be, ‘What did he believe and what did he perceive?”’ said Fleischer, who has defended dozens of people accused of murder and manslaughter and has argued self-defense in the past. That assertion by Zimmerman, he said, is the biggest obstacle faced by the prosecution.
“It’s a recognized defense under the law, and Stand Your Ground has enhanced it,” he said.
Plead Not Guilty
The decision to charge Zimmerman by Florida State Attorney Angela Corey was announced yesterday in Jacksonville. Lawyers for Zimmerman, who remains in protective custody in Seminole County, said he will plead not guilty. He faces as long as life in prison if convicted. At an initial hearing today, a judge ruled sufficient evidence existed to justify the murder charge, and set May 29 as a date for Zimmerman’s arraignment.
Zimmerman, whose father is white and mother Hispanic, told police Martin attacked him on a sidewalk near his home, and that he shot Martin after first being punched in the nose and having his head slammed into the ground, officials said.
Zimmerman, who said he was driving to a grocery store when he saw Martin walking through the gated community, told authorities he followed the teenager on foot and called the police to report a suspicious person. A dispatcher told Zimmerman to stop following Martin, and to wait for police.
Brian Tannebaum, a veteran defense attorney in Miami, said he was surprised by the second-degree murder charge, which he said prosecutors may have a harder time proving than if they had charged Zimmerman with manslaughter.
“I think the jury is going to have a tough time with the idea that George Zimmerman murdered this kid,” he said. “The word murder takes away any possibility that it was an accident.”
Zimmerman is charged with second degree murder for killing Martin in “an act imminently dangerous to another, and evincing a depraved mind regardless of human life,” according to the charging document. The requirement of “depraved mind” is what, to a large extent, separates the charge from manslaughter, which for a teenager like Martin carried a maximum 30-year term, Tannebaum said.
If convicted of second degree murder, Zimmerman faces a mandatory minimum prison sentence of 25 years under Florida’s 10/20/Life law that provides for enhanced penalties for crimes committed using firearms, Tannebaum said.
“When you look at manslaughter, you’re talking about something that wasn’t excusable or justifiable and resulted in death,” said the lawyer, the immediate past president of the Florida Association of Criminal Defense Lawyers. “By charging this as second-degree murder, the state is saying ‘We don’t think this is an act of negligence. We think this was an intentional killing.”’
Zimmerman told police he had been walking back to his SUV when Martin approached from behind and asked whether he had a problem. Zimmerman said no. Martin said, “Well, you do now” and punched Zimmerman in the nose, Zimmerman claimed, according to authorities.
He told officers he fell and that Martin got on top of him and began slamming his head into the sidewalk. A police report stated Zimmerman was bleeding from the nose and back of the head.
David Waksman, a criminal lawyer who worked as a state prosecutor in Miami for 35 years, and served as a police officer in New York for six, said jurors in a second-degree murder case are asked to decide whether the killing was “evil, hateful or spiteful.”
“Second degree tends to be a hard charge to make,” he said. “Sometimes first degree can be easier, depending on the evidence.”
Corey declined to convene a grand jury, which is required to seek an indictment for first-degree murder, a charge that generally requires evidence of premeditation or planning and may bring a sentence of death in Florida.
Zimmerman will have two separate chances to try to prove that he shot in self-defense, Waksman said. First, under the Stand Your Ground law, he can ask a judge to throw out the case before it ever reaches a jury. If the judge allows the case to go to trial, Zimmerman’s attorneys can assert self-defense again at trial.
“This guy’s going to have a strong Stand Your Ground defense,” Waksman said, adding that defense lawyers need only prove that he was in fear of injury or death at the time of the shooting. “We’ll have to see what the evidence is. It appears the firefighter saw a bloody nose, so there’s some evidence of a confrontation. That’s going to be important evidence for him.”
Corey said she would attack Stand Your Ground as a defense.
“We have to have a reasonable certainty of conviction before we file charges,” she said.
Waksman predicted the defense would ask for a change of venue for the case from Seminole County, which includes Sanford, though he doubted there is a jurisdiction in Florida that hasn’t been saturated with media coverage of the case.
“It’s like Casey Anthony,” he said, referring to the case of an Orlando mother acquitted of killing her 2-year-old daughter. Everyone knows this case.”
Jimmy della Fera, another Miami defense attorney, agreed the 911 tapes may turn the case against Zimmerman.
“When the 911 dispatcher was speaking to him and told him ’We don’t need you to follow him,’ I think that’s going to be a huge problem for him,” he said. Della Fera added the case may also hinge on an analysis of the tapes of calls neighbors made to 911 in which screaming is heard in the background.
“It’s a real problem for the defense if the screaming in the background turns out to be Trayvon,” he said.
Zimmerman’s own history may make any argument of self-defense harder for a jury to believe, he added.
“You had this guy Zimmerman, a cop wannabe and yeah, he may have had a bloody nose, but I think he got in way over his head and he overreacted,” the lawyer said. “If he doesn’t have a gun, does Zimmerman even put himself in that situation? I don’t think so.”
H.T. Smith, a Miami criminal defense attorney for 39 years and a former vice president of the Miami-Dade chapter of the National Association for the Advancement of Colored People, said he wasn’t surprised by the decision to charge Zimmerman with second-degree murder.
“Second degree murder is a crime that is hotblooded and committed with a depraved mind,” said Smith, who teaches trial strategy at the Florida International University law school. “If in fact the prosecutor believed she had evidence that this shooting was not justified based on the immunity of Stand Your Ground or self-defense, then it was second-degree murder.”
He said the key to the case will be the forensic evidence.
“We are going to find out that the prosecution has one or more pieces of physical evidence that contradicts Zimmerman’s story,” Smith predicted. “I don’t believe the prosecutor would rest the prosecution and proving second-degree murder on witness testimony. People are paying attention to these eye witnesses, but that’s not what this case is going to turn on. This case is going to turn on forensic evidence.”
David S. Markus, a criminal defense attorney for the past 25 years who also spent five as a prosecutor in Miami, said the defense will have to mitigate the issue of race, given protests triggered in Florida and nationally by the killing of an unarmed black teenager, and the effect that may have on any jury.
“In order to prevail, the defense attorney is going to take race out of the case and make it about the law,” he said.
Markus added that he isn’t convinced Zimmerman has a very good case for immunity under the Stand Your Ground law, or on a claim of self-defense in general.
“He injected himself into a situation he didn’t need to be in,” the lawyer said. “And that situation spiraled out of control and resulted in a death.”
The case is State of Florida v. Zimmerman, 1712FO4573, Circuit Court of the 18th Judicial Circuit (Seminole County).
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