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Thursday, July 18, 2013

Is there a Case Against Angela Corey?

So much has been written about the Zimmerman verdict that I was reluctant to join the fray, but I've decided to do just that, having found few extended discussions of the prosecutor's mishandling of the case, the bizarre nature of her press conference, and whether any ethics violations could potentially be brought against her with the Florida Bar.  

First, as others have written, the prosecution -- led by controversial veteran Angela Corey -- did a lousy job.  But, given the many years of trial experience of the lawyers for the state, the types of errors they made have struck me as more than just the result of mere sloppiness or oversights. Isn't one of the most basic lessons of first year trial advocacy to prepare your witnesses?  How could it be that the state in a high-profile murder prosecution allows a critical "ear witness" to the incident, Rachel Jeantel, to testify with so little obvious preparation?  How could it be that the state could allow their medical examiner, Dr. Shiping Bao, to testify in such an confusing, halting, and ill-prepared manner (particularly under cross-examination) -- not to mention the contrast between his shaky performance and that of the defense's smooth and confident forensic pathologist, Dr. Vincent Di Maio?

Much has been said about the charges Corey's office brought against George Zimmerman, but indulge me by considering them again.  Why on earth would the DA bring second degree murder charges after a six week investigation in which the police concluded that the suspect had legitimate grounds for a justifiable homicide defense?  Even if Corey had disagreed with their estimation, she should have known that the investigating officers would fight tooth and nail on the stand to support their initial analysis of the evidence -- particularly given that she and her colleagues were "special" prosecutors appointed from another county and, therefore, had no history or relationship with these cops? Also, why not just charge manslaughter from the outset, thereby shifting the prosecution's focus from the nearly impossible-to-prove (given the evidence), "hate in his heart," to the more palatable, "reckless actions that led unfortunately to a death"?  In fact, why not give the state the cover provided by first presenting the case to a grand jury, rather than proceeding by means of criminal information and a bare bones probable cause affidavit?  

Yes, I used the term "performance" when describing the witness testimony, as every litigator knows that trials are more akin to theater than to an actual search for the truth.  Your witnesses must know their lines, maintain the right affect, and have the preferred style of delivery.  Not only do you prepare them for direct examination by rehearsing the questions you intend to ask and the answers you expect them to offer, but you bring in another lawyer to conduct a moot cross-examination, so that they are ready and confident before facing the other side.  I find it difficult to believe that this actually happened in the state's case.  And, if it did not, what was the reason?  Lack of time, motivation, concern?  If so, could any of these serve as the basis for an ethical violation against Corey and her associates?    

Related to this point is the failure of the prosecution team to anticipate and thereby counter the age-old defense strategy of putting the victim on trial.  It should have been no surprise that Zimmerman's lawyers would urge the jury to put themselves in their client's shoes and view the scenario from his perspective (Scary black male wearing hoodie!  Threatening presence in the neighborhood!  And he was high on weed!).  Why did the prosecution make this even easier for the defense by readily admitting into evidence Zimmerman's statements as well as the VIDEO of him at the station house when he walks the detective through his seemingly reasonable version of events? Why not keep that out and try to force the defense to put Zimmerman on the stand to get these exculpatory facts into evidence?  Similarly, what of Zimmerman's completely self-serving claim that Trayvon Martin told him, "You're going to die tonight"? Does this have any ring of truth to it?  And if not, why not make the defendant take the stand to assert it himself, when the state could then cross-examine him?

I was perplexed by all of this, gravely disappointed though not surprised by the acquittal, and then I watched Angela Corey's surreal press conference following the verdict  First of all, what of her smile?  Why is she smiling when the defendant was found not guilty?  She claims that she has "brought out the truth on behalf of Trayvon Martin."  If she believed in the prosecution, in the commission of second degree murder by George Zimmerman, how was the truth brought out?  She is proud to be part of the "historical aspect of the case."  What makes it historical from her perspective -- the degree of press attention?  She says that the jury has carefully "gone over all the facts and circumstances," has worked "very hard," and rendered a just verdict.  And then she admits to reporters that she has not yet spoken with Trayvon Martin's parents or family but immediately made herself available to the media.  It just doesn't add up.

Where does this leave the Martin family?  It seems unlikely that there will be a federal prosecution of Zimmerman on different criminal charges, and as for civil rights charges, proving racial animus via the Hate Crimes Prevention Act would be extremely difficult.   A wrongful death civil suit against Zimmerman is another possibility, though despite the lower standard of proof and likelihood that Zimmerman would have to testify, if he wins his hearing under the Stand Your Ground law, he'd be immune from civil action.

All of which brings me to Angela Corey and her future as a state prosecutor.  Rule 4-3.8 of the Rules of Professional Responsibility regulating the Florida Bar calls for prosecutors to adhere to the following:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) not seek to obtain from an unrepresented accused a waiver of important pre-trial rights such as a right to a preliminary hearing;

(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.   

From what I've read, it does not appear that (b) or (c) apply, but could subsection (a) be provable against Corey?   If not, is there any redress under any of the other Rules?  Is there any equivalent of ineffective assistance of counsel by the prosecution?

I acknowledge that this may seem to be a strange inquiry coming from a criminal defense lawyer, but I'm not convinced that if the prosecution had been handled differently, the verdict would have been the same.  Trials are crap shoots, as there are so many unknowns, but they are crap shoots in which the skill of the gambler does matter.  The state of Florida was clearly out-lawyered in this case, which is always possible in a jury trial.  What troubles me is that it almost seemed too easy for the defense, as though the other side had decided to throw the game . . . and that's not a fair or just result for anyone.  

Your thoughts?  Please share in the comments.   

Posted by Tamar Birckhead on July 18, 2013 at 01:55 AM in Criminal Law, Current Affairs | Permalink


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Ok, I think we've gone quite a bit off-track here, and I apologize for not monitoring this thread more. I'm closing comments and if I get more time later, I will delete the anon and ad feminem comments.

Posted by: Dan Markel | Jul 22, 2013 1:09:26 PM

Sounds, at least a little, like the head Prosecutor knew there was no case but responded to part of the public's hue and cry for the prosecution at any cost regardless of proof.

Posted by: Dan | Jul 22, 2013 9:04:20 AM

No, Joe, reading the comment thread doesn't make what she wrote less appalling. The opposite, really.

Posted by: Careless | Jul 21, 2013 11:01:20 PM

OK Ms Birckhead needs, personally needs, the Zimmerman Trial to prove american racism. That there is no evidence for this, doesn't bury Ms Birckhead's need.
The case isn't about SYG laws, But Ms Birckhead needs it to bring up her feelings and need to Crusade against SYG Laws.
Despite the study showing that black people in Forida have made most use of SYG as a defense,Ms Birchead seems convinced that everything is just evdience of structural racism.
It would appear from Ms Birckhead's protestations that self defense, perhaps particularly self defense by people who are not black, is evidence of structural racism. It's the duty there for of non black victims to allow themselves to suffer grievous bodily harm or death, if their assailant is black. Or perhaps simply Ms Birckhead doesn't believe that elf defense is any Right at all.
Ms Birckhead keeps trying to weasel out of her statement, that basically right or wrong, she wanted Zimmerman convicted, because he belief that America is an evilly racist nation.
All I see here is that Professors and lawyers can want to lead lynch mobs to further their own political biases, and are happy to turn a blind eye to unjust rulings to further their political ends.
Ms Birckhead seems to me, to simply be a self righteous zealot, unable to attempt stepping back from her political personal biases.

Posted by: Leaada47 | Jul 21, 2013 6:22:13 PM

It does not strike me as being plausible that Tamar Birckhead would be absolutely dismissive of Trayvon Martin's testimony, were he to be tried for the assault of George Zimmerman. I dismiss her observations as being uselessly biased and partisan.

Also, a does every person else in the case taking Martin's side, they do not pretend to make any excuses for the time Trayvon Martin physically--not a master of speculation--had to avoid or ignore George Zimmerman if he chose to. It is self evidence Trayvon Martin chose not to avoid or ignore George Zimmerman.

There is in fact not now, was not introduced at trial or excluded from it, any evidence whatsoever to support George Zimmerman's guilt. His was a politically motivated show trial, and not one merited by any evidence against him.

Certainly, nothing Tamar Birckhead has named.

Deranged isn't the word for it, but despicable is. Desiring punishment by process for a self-evidently innocent man, on the basis of imagined wrongs and wrongs done by other people is nothing else.

But also, it is Progress.

Posted by: Tom Perkins | Jul 21, 2013 1:31:29 PM

Look what she did to me...I've decided it is time for my side of this story to come out! She keeps blocking my retrial, meanwhile I have been in prison 13 years. It is all about being elected.


Posted by: Robert Denney | Jul 20, 2013 8:11:02 AM

I fear to enter these waters, but here goes. It seems to me that if you decide that GZ is not trustworthy, and therefore discount his statements about what happened, you could conceivably construct a story consistent with the rest of the evidence as follows: GZ is following Martin so he can point him out when the police arrive. Martin confronts GZ. Martin says "Why are you following me?" Zimmmerman says, "What are you doing around here?" (Jeantel testimony) Perhaps we can infer that GZ grabbed TM at this point because TM says, "Get off." (Jeantel testimony) In response to being grabbed, TM punches GZ in the nose and jumps on top of him pounding GZ's head. (Good testimony) Losing the fight, GZ shoots TM when TM is still on top of him. (Dr. Rao testimony) There are still some big holes in this story. Did GZ reasonably fear great bodily harm? The Good testimony and physical evidence seem to put a big hole in the prosecution case that he did not. The big inference is that GZ initiated the physical confrontation by grabbing TM. While that inference is not inconsistent with the evidence, it's certainly not the only reasonable interpretation. Indeed, I don't think the prosecution even argued that GZ initiated the physical confrontation. So I'm just not seeing how you could possibly get a guilty verdict on this evidence, even if you discount GZ's testimony.

Posted by: Doug | Jul 20, 2013 7:47:51 AM

I just finished serving on an alternate juror on a criminal case where the defendant contesting charges of assault with a firearm plead self-defense. The trial took five days, and the verdict was not guilty.

I learned, straight from L.A. County Superior Court Judge Jesse Rodriguez, that California has a stand your grand law. It was not necessary for the defendant to have an airtight case of self-defense. It merely had to be plausible considering the totality of the evidence.

While I did not participate in deliberations, I can guess that the Zimmerman case was brought up. There were of course differences. My case did not involve anyone getting killed, and there were no injuries on the defendant.

Posted by: Michael Ejercito | Jul 19, 2013 11:42:24 PM

I will echo the comments of others regarding GZ's testimony. I thought it a little convenient that TM allegedly said "you're going to die tonight," and GZ seemed a little too confident in saying that TM went for GZ's gun.

That being said, even if GZ's statements were dismissed as not credible, there was still no way that the prosecution could prove BARD that GZ failed to act in self-defense. Consequently, as the lead prosecutor admitted, their entire strategy was to just poke holes in GZ's various interviews -- they never proffered any evidence showing that GZ taunted TM, that GZ threw the first punch, that GZ flashed his weapon, and so on.

Again, I don't doubt that any of those things *could* have happened -- GZ may very well have flashed his gun and told TM to "get the hell out of here" or something like that. But no evidence supported that, and the prosecution didn't even try to make that argument. Thus, I'm puzzled as to how any lawyer or other officer of the court could believe that the evidence supported a conviction.

I'm also puzzled by the arguments that this would be different if Manslaughter were focused on. Self-defense is a defense to manslaughter, and once again, there would be nothing that the prosecution could offer to rebut GZ's claim of self-defense.

Perhaps the belief is that manslaughter should have been focused on because that doesn't sound as bad as 2nd degree, and maybe the jury would have ignored the facts to support a manslaughter charge if that charge were focused on from the outset. This belief may or may not be true, but it is appalling to see any officer of the court suggest this strategy.

Posted by: andy | Jul 19, 2013 10:17:17 PM

If nothing else, Tamar Brickhead proves conclusively that cognitive dissonance continues to thrive on the Progressive Left.

Posted by: Sam | Jul 19, 2013 8:45:25 PM

I disagree with what much of what Tamar Birckhead is saying here but I respect the gut honesty.

The fact that someone mentioned sometimes a witness is just bad witness is very true. I mean she was twittering photos of her " court nails" .

That being said maybe the defense lawyer had a point with that Judge. She was running them to exhaustion and they needed more time outside the Court day. It appears maybe the Prosecution was the one that really needed it. Maybe going to ten at night was not the best call

I think the Videotape issue is the most interesting calls on the Prosecution that can be questioned. Maybe they should be asked about it. Of the Jurors LOVE things like Video tapes and such. If the jury got the inclination the state is holding that back that could have hurt them as well.

Its like what if in a DWI case we have the officers say x y and z and but the State decided not to introduce the Field Sobriety tape. Yes I know as to DWI tapes we are dealing with some different issuea but to the jury they would smell something.

Posted by: JH | Jul 19, 2013 6:24:15 PM

Even if you completely disbelieve Zimmerman's testimony, there's absolutely no way you can convict on this evidence. You are, frankly, deranged. What about John Good's testimony? What about the wounds on his head? You blame the prosecution for focusing on Z's "lies" and poking holes and asking questions, but when asked about your theory of the case you do the same thing. I guess you imagine that Zimmerman shot the guy and then bashed his own head against the sidewalk, and offered John Good a few bucks to back up his story. But your imagination isn't evidence!

Posted by: mike | Jul 19, 2013 6:17:42 PM

"I am convinced that the evidence can be interpreted in a way that's consistent with a conclusion that he committed acts that meet the elements of manslaughter"

This blog is my favourite source of opinion on this trial because it is full of intelligent, informed and essentially fair-minded progressives. Ms. Birkhead, in this context, is an outlier. The whole purpose of law and juries is to decide on these matters in a sober and impartial way. The jury decided, I think correctly, on the evidence that no crime was committed by Zimmerman. I really hate to say this, but in today's day and age it's the white (Hispanic?) accused who is more in danger of a figurative lynching. Emotion and a sense of outrage at the injustice of racial profiling are overriding rational thought. We need less Tamara and more Dan Markel to get people to put down their pitchforks.

Posted by: Frank Sales | Jul 19, 2013 4:03:58 PM

Tamar - well, if you believe GZ was not a credible witness, then you believe the state has proven its case beyond a reasonable doubt, and what you said is not as controversial as it initially sounded.

Posted by: Joe | Jul 19, 2013 3:34:17 PM

To conclude that Zimmerman is guilty, you must show that Zimmerman could not reasonably conclude that shooting Martin was necessary to prevent Martin from inflicting imminent great bodily harm on him (this is true even if Zimmerman was the “initial aggressor” so long as we assume that Zimmerman has no reasonable means to retreat, which is almost certainly the case as we will see below).

To this determination, it would be irrelevant, even if true, tat:
"Trayvon only had his fists",
"Trayvon . . . [was] verbally threatened by GZ”, or
"[Trayvon saw] that GZ had a gun and [didn't know] who he was or why he was following him"

There is clear and convincing evidence that Martin was on top of Zimmerman and was repeatedly attempting to punch him. We know that, at the time of the shooting, one person was on top of the other. In addition, we know that the person on top was swinging his arms at the person below on the bottom within seconds of the shooting (Goode stops looking at the two men before the shooting occurs). Martin has no injuries other than from the gunshot and to his knuckles. Zimmerman has injuries that are consistent with, according to all the experts, multiple blows (at least 2 according to even the prosecution's experts). Further, all of the eyewitnesses provided evidence that is consistent with Martin being on top:

Goode says this directly and is clearly in the best position to observe among the non-Zimmerman witnesses.
Surdyka says that the person screaming had a "boy's" voice; it is extremely likely that Zimmerman has a higher-pitched voice than Martin (compare the YouTube videos of Martin to Zimmerman’s 9-1-1 calls, noting how high Zimmerman’s voice is).
Manolo reports that the larger man was on top; Martin is at least 3 inches taller than Zimmerman.
Zimmerman reports that Martin was on top of him, hitting him at the time of the shooting.

The physical evidence also establishes that Martin was on top when he was shot because the mechanics are inconsistent with Martin being on the bottom. Martin is face down at the time his body is recovered. The medical examiners report that Martin was not shot in the back. No witness reports Martin's body being moved after he was shot (other than Zimmerman’s claim that he moved Martin’s arms).

In addition, Di Miao reports that there was a gap of, I believe, 2-4 inches between Martin's clothing and his skin. If Martin was on the bottom, this gap would not exist. The prosecution's only explanation of this was that Martin might have been pulling away from Zimmerman at the time the gun was fired (implicitly ceding that Martin was on top).

So my question is this: is there a story which is consistent with the evidence in which Martin is not attempting to inflict injury on Zimmerman at the time he is shot?

Posted by: Dan | Jul 19, 2013 2:36:17 PM

I hope people like Prof. Bernstein at Volokh Conspiracy who was so "appalled" by the OP's comments read her follow-up discussion.

Posted by: Joe | Jul 19, 2013 2:25:26 PM

Tamar, I found your post thoughtful and helpful,particularly since I don't have any special expertise in Criminal Law. But this sentence disturbed me: "This certainly wouldn't be the first time that someone is found guilty with something less than proof beyond a reasonable doubt, and I admit that such a result would not have bothered me." For the jury to ignore the evidence presented at trial and decide based on what they or someone else thinks the facts might be would violate the rule of law. I don't want to further normalize juries ignoring the rule of law to find defendants guilty when the jurors think it best(based on what? what they heard in the media, which is often false? their own prejudices or biases? overt or subconscious racism?). On another note, I'd be happy to contribute to the legal fund of Angela Corey's employee-whistleblower.

Posted by: Lyrissa Lidsky | Jul 19, 2013 2:24:15 PM

Dan: What if you completely discount the veracity of GZ's story? Remember that he has the most compelling motive to lie: self-protection. Remember also, just because there was evidence introduced by one of the parties of something (who struck the first blow, who screamed, who told what story, whose story is believable) or a specific argument advanced by one of the parties (that the police did a thorough initial interview of GZ, that "concrete" is a weapon, that Trayvon was on top of GZ, that the memory of the neighbor eye-witness is reliable, that Jeantel's story was unreliable), doesn't mean that you, as a member of the jury, have to accept it as credible.

So, you could conclude that the scream belonged to Trayvon, which is why it stopped after the gunshot; that either GZ was on top of Trayvon or it doesn't matter who was on top because GZ had a gun and Trayvon only had his fists; and that the "injuries" of GZ were the result of Trayvon trying to defend himself, either after being physically/verbally threatened by GZ (remember, you don't believe GZ's story) or after seeing that GZ had a gun and not knowing who he was or why he was following him (GZ never identified himself as a neighborhood watchman).

The reason it is so disheartening that the state did a lousy job is that they could potentially have introduced additional testimony/evidence that would have made it easier for the jury to arrive at these conclusions and thereby reject the self-defense claim, but they did not. Still, facts in evidence don't make them "true" or "believable."

Thanks for commenting,


Posted by: Tamar Birckhead | Jul 19, 2013 1:32:15 PM

Out lawyered? No, out facted. The prosecution had only lies and supposition. The facts were all on the side of the defense. Rachel Jeantel has now admitted that Trayvon made it back home. Therefore he returned to attack Zimmerman, which Jeantel has also admitted that Trayvon threw the first punch.

Posted by: Federale | Jul 19, 2013 1:05:19 PM


How can the evidence be reasonably interpreted to be consistent with a lack of valid self defense? This is the part that confuses me; I spent quite a bit of time attempting to construct such a narrative and failed.

Posted by: Dan | Jul 19, 2013 12:56:23 PM


Posted by: Jay Shizle | Jul 19, 2013 12:36:56 PM


Posted by: Jay Shizle | Jul 19, 2013 12:35:23 PM

I had just made this point to my wife a couple days ago. The martin family was hoodwinked by this evil witch. She has a history of going hard on locking up black people but treated this case as an afterthought. She had a year to get it together. Her Charlie Chaplin looking lawyer looked suspect from jump and the prosecution presented a very lazy case. Never once said anything GOOD about trayvon to offset all the nasty things being said on the other side. had not ONE of trayvons peers or friends outside of Rachel testify yet all of gz friends and family came and lied for him. Her smile is annoying and Im gonna do all im my power to get her OUT. Starting with petition to have Governer remove her from her position so she will no longer assist inthe biased judicial system that once aqcuited white man after white man for admittedly killing "niggers" in court only to be released. Lets not forget that was less than 60 years ago and this is the same sytem. Angela Corey will have us believe that NO court cases are handled according to race after 30 year in?!?! Ok, your day is coming Angela.

Posted by: Jay Shizle | Jul 19, 2013 12:33:09 PM

Hi, folks: Thanks to Geoff for his support and to others for their continuing contributions to the conversation.

John: This progressive-minded person (I can't speak for anyone else) is not at all clamoring for new laws to convict the "usual suspects/victims," but I would like to see SYG laws removed from the books, because they are often -- from my perspective at least -- not interpreted by police/prosecutors/judges or applied by juries in an even-handed way. I know that SYG was not implicated in this matter, that the defense was purely based on a self-defense claim, but in terms of the law reform work done in reaction to the verdict, this is at the top of many priority lists.

John, Dan, Joe: The bottom line for me -- and I may not have articulated this well above -- is that I do not find GZ to be a credible witness or a reliable reporter. I don't believe his story, whether conveyed once, twice, or on repeated occasions, and I am convinced that the evidence can be interpreted in a way that's consistent with a conclusion that he committed acts that meet the elements of manslaughter. Yes, the evidence can also be interpreted in a way that is consistent with the conclusion that the state failed to meet its burden. This is why we have juries, as seen by the fact that the initial "vote" of the GZ jury was split, with three voting for conviction and three for acquittal. They all heard the same evidence, but they weighed the credibility of the witnesses differently and applied the law to the facts differently. Upon deliberation, they -- like most juries -- eventually reached consensus.

Yes, I am upset that Angela Corey et al. did not handle the prosecution well, whether from indifference, incompetence, or overconfidence. Wendy, this may make me an arm-chair quarterback, hindsight is 20-20, etc., but I don't think this takes away from the value we can gain from a post-verdict analysis of the trial.

When I said that it wouldn't have bothered me if GZ had been convicted with less than proof BRD, I meant that I believe the case *could have* been prosecuted in a way that established such proof (at least to lesser charges than 2d degree murder), and given this belief (with which reasonable people may differ), I would not have felt that an injustice had been done if the trial had resolved itself in that way. No, this is not how I'd necessarily want jurors to execute their obligation, but I was not a juror in this case (thank goodness). I am just an observer, offering my candid views -- you, of course, are free to judge/disregard/concur as you deem appropriate.

Again, thanks to all who have followed this thread and to those who have contributed. It has enhanced my understanding of the issues and has helped me clarify my own perspective. I hope it has done the same for you.

Enjoy the weekend,


Posted by: Tamar Birckhead | Jul 19, 2013 12:19:33 PM

I by no means endorse the behavior of Angela Corey, but with regard to the management of the case I have one question-Arm chair quarterbacks always have the winning strategies don't they?

Posted by: Wendy Grimm | Jul 19, 2013 10:04:44 AM

Based on what I have read about Zimmerman’s behaviour before the killing, after the killing and his defence, I would say ‘guilty’. This jury didn’t think so. The prosecution must have surely wanted Zimmerman on the stand, but it seems to me from what the statement-issuing juror said, that having him exposed there couldn’t have changed very much. That is a big problem, and one allowing ingress into the equation of all the societal concerns that have been so badly served by this trial.

if common sense is merely the sum of prejudices held at the age of eighteen (was that Einstein’s quote?), then how on earth does it aid the maintenance of a credible rule of law to have a half-size jury in any murder trial …… very odd

Thanks are due to the prof here for doing what she can to stimulate a meaningful discussion on what is an important real-life illustration re normative input into rule of law, and whether that matters (it does). Ad hominem commenting to the effect that the prof is teaching to students here on prawfs, is unpleasant, but no doubt bravely borne & worth it. Not nice though

Posted by: Geoff | Jul 19, 2013 9:36:56 AM

Tamar - You really wouldn't have been bothered by someone being convicted upon something less than proof beyond a reasonable doubt? I just find this statement to be completely incredible, especially coming from an academic, attorney, and former public defender.

Posted by: Joe | Jul 19, 2013 8:54:26 AM

I meant--I was not the one who first brought up the idea of a recording...

Posted by: AGR | Jul 19, 2013 6:18:44 AM

I wasn't the one who mentioned a recording. And yes--that alleged pronouncement was just a little too perfect. I think they did have a case of manslaughter, but the verdict was what I expected. That is immaterial. The question of what message this resolution sends, which is what I commented on, remains vital.

Posted by: AGR | Jul 19, 2013 6:12:33 AM


the prosecution doesn't need a recording, but it needs. . . something. I agree that that line sounds too perfect to be true, but the prosecution never offered anything else, and me rely shouting that George lied, and flashing a bag of Skittles, comes nowhere close to proving beyond a reasonable doubt that Georga failed to act in self defense

Posted by: some | Jul 19, 2013 4:59:59 AM

One does not have to have a recording to weigh the credibility of a self-serving, uncross-examined statement. We do not have a recording that proves he said it.

Posted by: AGR | Jul 19, 2013 3:58:24 AM

AGR, since you apparently have a recording of what actually went on between Martin and Zimmerman that night, why didn't you turn that over to the police? The result of the trial might have been very different.

Posted by: ThirteenthLetter | Jul 19, 2013 3:26:00 AM

"You're gonna die now" or "you're gonna die tonight". It's a wonder GZ didn't have Martin saying after that, "You jive turkey!"....

Posted by: AGR | Jul 18, 2013 11:56:03 PM


I'm assuming from your comments that you, like me, watched essentially the entire trial. I also take it from your comments that you do not believe that what actually happened was that, without provocation, or moral or legal justification, Martin attacked and attempted to seriously injure or kill Zimmerman. Could you please explain how you reached this conclusion if it is indeed your conclusion? If it is not, could you explain how it would be appropriate to jail a man who killed someone who was attempting to seriously injure or kill him?

Even if it seems snarky, I would genuinely like to understand your perspective. I have watched the commentary about this trial in horror. You are clearly smart and appear intellectually honest; if I can't understand how you could reach your conclusion, then I'm never going to understand how anyone could reach the conclusions that have induced my horror. If that's the case, I'm going to go sit on a beach in Thailand until my liver gives up, or something.

Posted by: Dan | Jul 18, 2013 11:30:50 PM

Tamar, thanks.

I’m amazed to see my lefty friends, my friends concerned about racist prosecutors, and even my PD friends —— even the PDs! —— clamoring post-Zimmerman to enact laws that will make it easier for state prosecutors to convict the usual suspects/victims. To me, that’s a classic “stumbling block” reaction. A person is so offended by something that he/she end up recapitulating the offensive act.

As for using punishment to “send a message,” I have no problem so long as the trial conviction is correct on the technical merits and isn’t justified simply by its expressive content. The idea of incarcerating or executing someone to express our feelings when the conviction isn't justified on its own legal merits earns more than my disdain; it’s immoral. And imho people who push for that cannot properly be considered lawyers.

Yes, it’s a natural human reaction. Gustave LeBon said that electorates, legislatures and juries are special purpose mobs. But that’s the very reason we have labored so hard to create procedures, to insist upon prosecutorial discretion, and to mandate standards of proof.

I appreciate the quote from Prof Nesson. But I’ve long worried that unreflective endorsements of expressive punishment end up fostering a pathology inherent in expressive punishment. From one my two articles on this topic:


The idea that the sacred may be a source of expressive punishment has been suggested by Kathryn Preyer. In analyzing the function of shaming punishments, she notes that they allowed for the “release of communal aggression, revenge, or tension,” and that the “entertainment aspect” of such punishments “was perhaps beneficial to community needs in deeply psychological ways well beyond shame and deterrence of the individual.” She offers her “fanciful” speculation that perhaps those punishments “suggest milder parallels with ritual sacrifice or even torture in other societies.” Similarly, when Feinberg wanted to conjure up a vision of denunciatory punishment that might not require hard treatment to be effective, he indulged in what he felt was “perhaps [an] idle fantasy” and invoked the notion of “an elaborate public ritual, exploiting the most trust-worthy devices of religion and mystery, music and drama, to express in the most solemn way the community’s condemnation.” H.L.A. Hart drew a less tentative and more disturbing conclusion. He declared the infliction of punishment on human beings for denunciatory purposes —— “the infliction of punishment as a symbol or expression of moral condemnation” —— to be a principle that “belong[s] to the pre-history of morality and to be quite hostile to its general spirit,” and he warned that “[t]he idea that we may punish offenders against a moral code, not to prevent harm or suffering or even the repetition of the offense but simply as a means of venting or emphatically expressing moral conndemnation, is uncomfortably close to human sacrifice as an expression of religious worship.”


I did not want to see Zimmerman get convicted against law and evidence simply to send a message. I opposed even the charges, given that they weren’t justified on the merits. I abhor the comment I recently saw on cable news, to the effect of, "well the acquittal was obviously correct but I'm glad we had a trial to foster to discussion." It saddens me to see the race progressives, public defenders, and other people on the side of humanity missing the point and stumbling into the error they spend so much of their lives fighting.

Sorry if this is over the top.

Posted by: John Steele | Jul 18, 2013 9:45:47 PM

Window: Please -- if you read the essay carefully and with an open mind, you will see that it is not meant literally and does not "assume facts not in evidence" during the trial. It's written by a historian who is drawing parallels with another era.

In fact, Rogers states quite clearly, "But as a historian of slavery, I thought more deeply about the historical context surrounding and preceding this case, and I came to realize that people of African and European descent have engaged in Trayvon Martin/George Zimmerman-esque encounters since the colonial period, with similar outcomes."

Nuance is the key here.

Posted by: Tamar Birckhead | Jul 18, 2013 7:16:24 PM

Andy: First of all, thanks for the kind words. I appreciate them. As for my various roles as a law professor, criminal defense lawyer, mother, and citizen (there are, of course, others), I prefer not to separate them out in this forum. I am all of these things, and they each inform how I perceive the world and try to make sense of it. I have confidence that critical thinkers (like my students) who are reading this thread can draw distinctions. I am confident that they can make sense of the fact (without deeming it shocking or troubling) that I can say on the one hand that it wouldn't have bothered me to see Zimmerman convicted despite the argument that the State of Florida may have failed to meet its burden, but on the other that I can ethically practice law and teach my students (who are not children -- it is professional school after all) to practice ethically.

With that said, it may very well be unusual to approach this blogging gig in this way, but that's my prerogative, right? I'm here for another week or so and then I fade back into (relative) obscurity. Part of my objective is to connect with others in a meaningful way; for me, that requires that I not stick with some cardboard cutout visage of the law professor while doing so.

I'll think more about your other points and may check back in, but at this point I will close, as it's long past time I left my office.

Best, Tamar

Posted by: Tamar Birckhead | Jul 18, 2013 7:09:33 PM

Regarding the Rogers piece, what evidence provided by the prosecution showed that Zimmerman hunted Martin down? Zimmerman stated that he was attacked by Martin, and only Zimmerman suffered physical injuries prior to the gunshot. The defense alleged that Zimmerman lied about this and discounted the broken nose/head injuries, but offered no actual evidence that Zimmerman hunted Martin.

It's hard to give weight to the Rogers piece when it assumes facts that were neither proven nor presented. It's easy to get outraged when we just assume that Zimmerman attacked Martin, but not so easy when one limits inferences to those drawn from the actual evidence.

Posted by: window | Jul 18, 2013 7:05:41 PM

AGR: Thanks so much for your comment and your cite to the essay by Stephanie Jones-Rogers, an assistant professor of U.S. women's history at the University of Iowa. Professor Jones-Rogers makes a powerful analogy. For those who are interested, here are the first few paragraphs of the piece:

"Not guilty. George Zimmerman saw a young black man in his neighborhood, declared him in violation of traversing space where he did not belong, hunted him down, and shot him dead. On Saturday, a Florida jury found George Zimmerman not guilty of second-degree murder. We do not know all of the particulars of that night, but we do know those few things. And when many of us learned about the verdict on the evening of July 13, 2013 or the morning after, we were devastated by the outcome. How could this be?

The simplest answer to this question is that George Zimmerman was brought before a jury of his peers and they found him not guilty. But as a historian of slavery, I thought more deeply about the historical context surrounding and preceding this case, and I came to realize that people of African and European descent have engaged in Trayvon Martin/George Zimmerman-esque encounters since the colonial period, with similar outcomes. Before there was a Sanford, Florida or a Retreat View Circle, there were many Trayvon Martins and George Zimmermans.

In the latter decades of the seventeenth century, British settlers decided to implement a system of racial slavery in North America, and they very quickly developed bodies of laws which restricted and criminalized black mobility and autonomy. Through these laws, blackness became synonymous with enslavement, and the movement and activities of black people were severely curtailed; everything from the right to bear arms to property ownership were limited and outright banned. This fledgling legal system also relied upon all white colonists to police and survey black bodies. They were the eyes and ears of the law, and the courts gave them great latitude in assessing where black people’s bodies could and could not be at any given time.

As the legal system became more sophisticated, the courts required people of African descent to carry documents which validated their rights to be in certain spaces -- and their ability to traverse them, too. Enslaved people carried pieces of paper called slave passes, documents written by their owners, which indicated their destination, time of departure, arrival and return, and sometimes the purpose of their journey. The legal system also required free people of African descent to carry “freedom papers” at all times, documents issued by the court to validate their free status and hence delineate the spaces and places where they could rightfully be and go. Any white person, regardless of their legal authority, could demand to see these documents and interrogate a person of African descent at any time, without any justifiable cause. And if the black person in question could not produce such documents, they could be arrested, beaten, maimed or even murdered. Even if they could, white citizens could assault them with virtual impunity. Enslaved people who were able to secure their freedom were often banished from the states of their birth, forced to leave all that they knew and loved behind."

The rest may be read here: http://hnn.us/articles/if-only-trayvon-had-freedom-papers

Posted by: Tamar Birckhead | Jul 18, 2013 6:52:16 PM

Tamar -- in case my remarks come across as hostile, let me assure you that I admire your candid discussion of these issues and your willingness to intelligently engage with others. Your posts and comments are undoubtedly a valuable contribution to a debate filled mostly with nonsensical and useless remarks, and I applaud you for sharing your analysis of the important issues.

Posted by: andy | Jul 18, 2013 5:56:47 PM


Writing on a professor's blog, and introducing yourself to the readership as a UNC professor (and in this post as a criminal defense lawyer), gives one the strong impression that you are speaking as a professional capacity and not as a concerned mother.

It may or may not be possible for a professor to separate her remarks about the legal system from her professional position, but if one is going to try, a professor's blog is a strange place to do it. I'd be curious if students who read this blog view it as personal musings of professors, or as extensions of scholarly and professional voices.

Posted by: andy | Jul 18, 2013 5:52:10 PM

"Society attempts, through the judgments of its courts, to project a behavioral message that will influence individuals' conduct."

One would certainly hope that a just court system will project a behavioral or political message to others. That much cannot be disagreed with.

It's a different thing to say, however, that the prosecution/judge/jury should take into account that message in deciding whether to convict someone, rather than focusing on BARD. I certainly hope that judges and juries decide cases on the merits, rather than send an innocent person to jail (or a guilty person to the streets), based on some extraneous messaging intent.

A court system is just, and sends the appropriate message, when it does NOT take into account its behavioral messages. It's *because* the trials do not take into account behavioral or political messages (or, at least, aren't supposed to) that we infer things from them. Ironically, if the court system starts to take into account those messages, the strength of its messages will become weaker. (Perhaps that's already happened with regard to black defendants.)

Put differently, if the contours of the strike zone were not well defined, and an umpire called balls and strikes based on a very wide strike zone because he believes MLB should widen the strike zone, his calls will not receive much weight in trying to determine the correct contours of the strike zone.

Posted by: andy | Jul 18, 2013 5:46:14 PM

Those who believe that Zimmerman should have been acquitted (as he was) should not be charged with also believing that there no racial injustice in the system, nor should a prosecution's failure to offer a theory of the case be taken as proof that blacks are worth less than hispanics.

The trial sends a "black is worth less than a hispanic in America" message only if one already holds that belief and chooses to view the trial through that lens. The parents of Trayvon Martin said this wasn't about race, the defense said this wasn't about race, Ms. Corey said this wasn't about race, and the only jurors to have spoken have said this wasn't about race.

And I can't see how a conviction would be warranted, regardless of the colors of the combatants. If the defendant presents a story (that he acted in self-defense) and the prosecution offers no story of what happened, but just bloviates about the defendant being a liar, the prosecution has failed to meet its burden.

That being said, there is tons of empirical evidence showing the mistreatment of blacks and others in our criminal justice system. This case, however, did not implicate those issues, because the prosecution presented nothing to rebut the defendant's story and physical evidence. Thus, we never had to think about whether GZ got off on account of TM's race, because there was a clear separate reason for his acquittal -- the failure to come anywhere close to establishing BARD that he committed manslaughter or 2nd degree.

Posted by: andy | Jul 18, 2013 5:32:06 PM

I think the trial (and how it came about) sent the message that black lives are worth less than white lives-- a message that is a legacy of slavery and decades of the white supremacy based racial policies that continued for decades in its aftermath. I think this piece on the History News Network nails it.


Posted by: AGR | Jul 18, 2013 5:06:35 PM

"I still believe that huge portions of the public saw the trial as a way to vindicate their anxieties about larger issues of racism and to forge social solidarity rather than to see if there was sufficient evidence to support the charges."

John: You say this with (what I imagine is) distain, although I see it as part of human nature and, therefore, as inevitable.

My former prof, Charles Nesson (who also cited Durkheim), has written:

"Through trials, society seeks not only to discover the truth about a past event, but also to forge a link between crime and punishment, between wrong and liability. Society attempts, through the judgments of its courts, to project a behavioral message that will influence individuals' conduct."

"A trial is ostensibly structured as a truth-seeking process concerned
with justice for the parties. Yet it is also a drama that the public
attends and from which it assimilates behavioral messages. The
court's message to the public at large is: 'If you do what the defendant
did, you will be doing wrong and you should feel guilty; if you commit
such an action, we will judge you guilty and punish you.' The threat
of punishment strengthens the moral assertion. Thus, the judicial
process inculcates and reinforces standards by which each person
should judge himself; the statement about how persons will be judged
and punished is a means to that end."

98 Harv. L. Rev. 1984-85

Did the Zimmerman trial and verdict serve this function? If so, what message did it send?

Posted by: Tamar Birckhead | Jul 18, 2013 3:58:45 PM

Joe, I'm glad to hear that, and if the coverage I saw was not indicative of MSNBC's overall coverage, all the better. Once the trial was heading to the jury I did see a few people who had clamored for a trial acknowledge how weak the case was.

I still believe that huge portions of the public saw the trial as a way to vindicate their anxieties about larger issues of racism and to forge social solidarity rather than to see if there was sufficient evidence to support the charges.

Posted by: John Steele | Jul 18, 2013 3:19:36 PM

John: Yes, I agree with your penultimate paragraph -- that is why we are still talking about this case and why it has resonated with so much of the public (one way or another). I agree that the evidence wasn't presented effectively and that as a result, an acquittal makes "sense," but the nagging feeling that what "should have" happened did not happen still remains. Is it because Trayvon and Zimmerman have become proxies for all young men of color and their pursuers? I'm sure that's part of it, at least for me given the work that I do, but I think I'd feel better if I were convinced that this particular prosecution didn't do such a lousy job. Thanks for engaging!

BTW, I haven't watched MSNBC or any other media outlet's coverage of the case -- only videotaped testimony via YouTube, some written commentary, and any of the court filings that I could find.

Posted by: Tamar Birckhead | Jul 18, 2013 3:19:23 PM

John Steele, I can't say I was as fascinated about the case as MSNBC was, but the few times I turned that channel on, I repeatedly saw people sympathetic to the defense or at least critical to the prosecution, citing "nuts and bolts" reasons why.

Posted by: Joe | Jul 18, 2013 3:15:47 PM

Thinking a lower standard of proof might be acceptable is controversial, but it is not the same question as there not being "any evidence" & if true, the judge should have not allowed it to come to trial in the first place. Many think there was not evidence BRD but "any evidence" is something of a minority viewpoint.

I'm not sure of the OP's opinion as to a federal prosecution, including one based on 'racism.' Also, I'm not really sure if they "yielded no evidence," unless that is a debatable conclusion of what the evidence suggests. I have heard some argue otherwise.

Posted by: Joe | Jul 18, 2013 3:08:56 PM

Tamar, thanks.

You say, "I think what is still troubling me is the sense that the criminal justice system failed yet again. Not merely because Zimmerman wasn't convicted, but because the observers of the trial, including at least a vocal portion of the public, felt that it wasn't a fair fight."

How did the "system fail" if the prosecutors really didn't have the evidence to back the charges and if the defense really did have the evidence to refute the charges? The law delights in an acquittal no less than in a conviction, if that's what the evidence supports, as it did here. The one "failure of the system," under that set of facts, was Corey's decision to charge what couldn't be proven.

And I apologize for repeating myself, but if the reason it "wasn't a fair fight" was because the prosecutors couldn't prove the charges and the defense could readily refute them, then it shouldn't be a fair fight.

There is another possibility. Without citing chapter and verse from Durkheim, Rene Girard, and others, is it possible that huge portions of the audience thought of the trial as a way to vindicate larger frustrations they have with social conditions (e.g., undeniable racism) and various injustices (e.g., the unfair daily treatment of so many black teens)? That they saw the trial as a way to experience solidarity with people who think like them about those disturbing issues? (Imho, MSNBC's coverage was devoted nearly 100% about forging solidarity with like-minded people and nearly 0% to the nuts and bolts of the case. For a lefty who was clear-eyed about the trial, visit the Talk Left blog.)

Personally, I think there was a lot of that going on, and so long as the trial was focused on the law and evidence of this particular matter, those people were bound to view the trial as a failure, as unfair, as unsatisfying, etc.

Posted by: John Steele | Jul 18, 2013 3:05:26 PM

Andy: I would hope that my comments as a blogger who also happens to be a regular citizen (and mother of a teenager) sharing my observations of a highly publicized and emotionally-charged prosecution can be viewed separately from my role as a teacher of students in a law school clinical setting. I was candidly sharing my gut level, conflicted reaction to the jury verdict and attempting to explain the nuances of those feelings. There is absolutely no relationship between this visceral response and any advice -- ethical or otherwise -- that I would offer to a student, colleague, or fellow practitioner who was making decisions in the context of legal practice. I am sorry that this was not clear.

Posted by: Tamar Birckhead | Jul 18, 2013 3:04:05 PM

"wouldn't be the first time that someone is found guilty with something less than proof beyond a reasonable doubt, and I admit that such a result would not have bothered me"

The honesty of this remark is refreshing. But the fact that it is made by someone responsible for teaching future lawyers shocks and saddens me. I cringe to think about the ethical advice you provide to students who will go on to work in a prosecutor's office.

Celebrating or pursuing the conviction of a person without any evidence, I would hope, is not an attribute to be desired in a DA or in another person who wields the power of the state. It's of course possible that GZ instigated the altercation with TM, but the state offered zero evidence of that, and the FBI's investigation has yielded no evidence of racism on GZ's part.

Posted by: andy | Jul 18, 2013 2:51:26 PM

ETA: If the community wants to send a true dog of a case to the jury, yes, at some point, no go. But, a judge and/or grand jury has to agree to advance the case to the petit jury. At times, this also is an argument that might warrant rejecting a plea, e.g., in the Boston bombing case to allow a jury to determine guilt and possibly the question of penalty.

Posted by: Joe | Jul 18, 2013 1:54:47 PM

"wouldn't be the first time that someone is found guilty with something less than proof beyond a reasonable doubt, and I admit that such a result would not have bothered me"

That's a somewhat troubling if honest response.

Sometimes, especially if we are not going to let a grand jury act on its own, it seems reasonable to send certain cases to a jury to decide it if there is an apparent desire by the community at large for this to happen. As to the charges, it would seem have been more reasonable, if possible, to from the start give the jury two options. It is sometimes a strategic choice not to do that.

The prosecutor here is cited as trouble. That's very concerning, but we should examine the issues here on a level beyond that though if someone else handled the case, who is to know if anything changed.

Posted by: Joe | Jul 18, 2013 1:49:23 PM

John: Thanks for the analysis and background on the ethical rules -- very helpful. I, too, have seen references to the inability of the Florida bar to discipline a sitting DA but also have been unable to find a source, though yours sounds reliable.

Miriam: Excellent points, though I'm still not convinced that the quality of the testimony of Jeantel and Bao couldn't have been vastly improved with the right preparation (or "coaching," a term that I have no problem using, as it does not necessarily imply that the "truth" is not being told). While, as you say, the evidence offered by these witnesses may have been the same, they would have been much more credible if they had communicated clearly and consistently (which I don't believe means "whiter"). If their credibility had been heightened, perhaps the jury would have discounted the testimony of the neighbor or of the defense forensic pathologist. Yet, because they were indeed "bad witnesses," we will never know. Also, I did not mean to suggest that the line prosecutors did anything unethical; my focus has been on Corey as the constitutional officer ultimately responsible for the office's strategic decisions. Thanks for commenting.

I think what is still troubling me is the sense that the criminal justice system failed yet again. Not merely because Zimmerman wasn't convicted, but because the observers of the trial, including at least a vocal portion of the public, felt that it wasn't a fair fight. Yes, as John says, once they made the foolish charging decision, they were stuck with a Rube Goldberg-like cascading impact on the rest of their case, and of course, they are not the first prosecutors to make bad charging decisions. It's just that I think an acquittal would have been easier for some of us to accept had we felt that the state "did right by Trayvon" by doing a decent job at trial. The errors, mistakes in judgment, sub-par lawyering feels viscerally to me like another shot in Trayvon's heart. Overdramatic? Maybe, but why is it that this kind of thing (in my experience during 20+ years in criminal courts) typically happens to people of color, whether they are defendants or victims...?

Posted by: Tamar Birckhead | Jul 18, 2013 1:48:41 PM

I agree with those who say this was an extremely difficult case and that Corey should never have brought the Second Degree Murder Charge.

That being said, I don't think we should confuse a "bad" witness with a "badly prepared" witness and I further think it is wrong to bring misconduct charges against prosecutors because their witnesses fail to "put on a good show." Rachel Jeantel's testimony conveyed that she was talking to her friend, and that her friend thought someone "creepy" was following him. It also conveyed her immense unhappiness with having to testify, as well as her lack of polish. So what? No amount of prepping would have been able to bridge the timing gap between her conversation and the neighbor's observation of (apparently) Martin on top of Zimmerman. She would not have been able to tell us what conversation transpired between the two, who threw the first punch, who got on top of whom etc. Preparation might have made her appear "nicer" [or sadly, perhaps "whiter"] to some jurors, but presumably we want jurors to convict on the basis of facts and not on how much they identify (or not) with a given witness. Even under the best circumstances, Jeantel's information brought the prosecution only so far.

As to the expert testimony, I agree that the prosecutor's witness was far less convincing than the defense witness. Then again, I have no idea what a "good" expert could have done for the prosecution that would have still been truthful and stayed within the bounds of the law. Yes, you can prep someone, but preparation ought not to veer into outright coaching, and I doubt we want to go down the road where we effectively punish prosecutors for not writing better scripts for their witnesses.

Finally, I too thought the prosecutor's closing argument was less than persuasive. His manner was off-putting and his loud voice was affirmatively irritating. But I have no doubt that he thought he was doing a good job, or at least his best job. I do not for a minute think that he was trying to throw the trial. I just think he thought that if he showed a lot of emotion, he would somehow get the jury on his side. Obviously, he was wrong.

There are many ways lawyers fumble trials, cases or deals. It seems to me that we should be careful to distinguish sub-par lawyering from professional misconduct. The line prosecutors (so far as i can tell) exhibited the former, and even there, reasonable people could disagree. Corey, however, may be guilty of the latter, depending on what additional evidence surfaces.

Posted by: Miriam Baer | Jul 18, 2013 1:20:50 PM

One more thought. Some of the listservs have featured conversations in which it's claimed that the Florida bar believes that it can investigate but not discipline a sitting constitutional officer (like Corey). The bar believes it could defer discipline until the lawyer is no longer in that position. I've seen the claims about the bar's belief from a Florida criminal defense lawyer who also does ethics-related work and while I'm still tracking down an official source or cite on that, I think it's credible enough to share (if only provisionally).

Posted by: John Steele | Jul 18, 2013 11:52:43 AM

It's difficult to make a silk purse out of a sow's ear.
What would have been your strategy for persuading a unanimous jury that Zimmerman was guilty beyond a reasonable doubt?
How do you get around the physical evidence and eyewitness testimony that Trayvon was on top of Zimmerman and striking him repeatedly when the fatal shot was fired?

Posted by: Fred Talman | Jul 18, 2013 11:36:06 AM

If Angela Corey had been in charge of Scott Peterson's prosecution, today Scott Peterson would be cheating on his third wife.

Posted by: Michael Ejercito | Jul 18, 2013 11:14:02 AM

When I see comments around the internet speculating that prosecutors "threw the trial," or used poor trial tactics, I assume that the speaker still hasn’t come to grips with how weak the prosecutor's case was. Once the prosecutors made a foolish charging decision, their tactics were bound to look foolish.

Regarding specific ethics violations, I believe that Corey over-charged, but Florida’s rule 3.8 requires only probable cause, which is a pretty low standard. Absent some shocking revelation from within the trial team, I don’t see as a practical matter how discipline could actually be imposed for the over-charging. If it wasn't an ethics breach, it certainly was a blunder.

We'll have to wait and see if the alleged discovery abuse pans out. It's possible that the un-produced documents will be deemed not material and exculpatory. Colin Miller, at Evidence Prof Blog, posted some thoughts about that. The whistle-blower suit by the fired evidence technician may provide answers.

From the very start of this matter, I've followed Dershowitz's claim that the probable cause affidavit was unethical because it omitted facts favorable to the defense. I just haven’t seen any law on whether the prosecutor can tell her half of the story in those affidavits or if she’s required to comply with the portion of Rule 3.3 (in Florida, 3.3(c)) dealing with ex parte applications (and requiring the lawyer to present all facts material to a reasoned decision). The affidavit was literally false in that it claimed that the NEN operator “instructed” Zimmerman not to follow Martin, but is that really enough of a material variance to warrant discipline?

Corey was quoted, post-trial, calling Zimmerman a “murderer.” That might violate the ABA rule (3.8) against heightening the condemnation of an accused (much like Michael Nifong’s reference to Duke lacrosse players as “hooligans” did). But I can’t find that provision in Florida’s version of the rules. Assuming that the “heightening condemnation” rule did apply, does it still apply post-trial? Does it matter that the DOJ is still investigating a crime?

Finally, although Florida’s version of rule 3.8 is thin, they apparently incorporate the ABA Standards regarding the prosecutorial function -- which was news to me. I don’t know if the Standards themselves can be a basis for discipline in Florida, but the Standards set a pretty high bar for the prosecutors and several of the points discussed above (and perhaps others as well) could be violations of the Standards.

Posted by: John Steele | Jul 18, 2013 11:03:46 AM

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