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Go Home “I Did Not Know If He Was Armed Or Not”

TIMOTHY NOAH APRIL 20, 2012

“I Did Not Know If He Was Armed Or Not”

BY TIMOTHY NOAH

There's a lot we still don't know about what happened between George Zimmerman and Trayvon Martin. But today we know a little bit more, thanks to Zimmerman's televised bail hearing (see below) We know:

1.) Zimmerman is "sorry for the loss of your son" (he addressed this to Martin's family). This "mistakes were made" formulation is a little weird, but I suppose it would be awkward for Zimmerman to say, "I am sorry I killed your son."

2.) Zimmerman "did not know how old he was. I thought he was a little bit younger than I am." This would appear to suggest that Zimmerman wouldn't have fired the gun had he known Martin was 17. He fired the gun believing Martin was perhaps 25 or 26 (Zimmerman is 28.). The assumption, I guess, is that a 25 year-old is stronger or likelier to be carrying a gun or in some other way more potentially dangerous than a 17 year-old. There's no reason I'm aware of to believe that should be so. Zimmerman thereby confirms that he's a guy who leaps to conclusions.

3.) Zimmerman "did not know if he was armed or not." That's a damaging admission for Zimmerman to make unprompted. Zimmerman didn't say, "I thought he was armed." He said he didn't know. (Or rather: "did not" know. The absence of contractions throughout is, I guess, meant to convey the gravity of the situation.) Yet not knowing, Zimmerman fired the gun anyway. Even under Florida's stupid "stand your ground" law, I can't imagine citizens have license to shoot people merely on the off chance that they might possibly have guns.

An attorney for the Martin family is reportedly "outraged" that Zimmerman was permitted to make these "self-serving" comments. But though Zimmerman's comments were clearly intended to be self-serving, it seems to me that they were more helpful to the prosecution.

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102 comments

Now the NRA will need to introduce a new law. One that makes it legal shoot someone whether or not you suspect they might be armed. Call it the "Suspicious Trouser Bulge Law.

- DP1024

April 20, 2012 at 2:32pm

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What an excellent post, Timothy. The killing of Trayvon Martin has of course gone viral as an issue in our nation, and much nonsense has been written and uttered about it, particularly on the right, naturally, but not only there. On a higher plane - though not by much - a lot of unoriginal and mediocre comments have been made on this killing. Along with Julian Sanchez's three posts (three as of the last time I went checked) on the killing of Martin, your post is the best thing I have seen written on this matter.

- liberalref

April 20, 2012 at 2:49pm

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"Even under Florida's stupid "stand your ground" law, I can't imagine citizens have license to shoot people merely on the off chance that they might possibly have guns." Isn't that the overriding issue about that stupid law?

- Nusholtz

April 20, 2012 at 4:10pm

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Sorry to disagree with a lot of the above. I think Noah is way over reading and over interpreting Zimmerman's apology and I get the feeling that Noah has a real hunger for Zimmerman's conviction and is fitting Zimmerman's brief testimony into a Procrustean bed. I watched a few minutes of the cross examination which followed the apology I also watched. My feeling was that Zimmerman came off pretty well both in chief and in cross. Should he ever testify-should the prosecution get past the immunity hearing-my hunch is that if the case gets to trial Zimmerman will testify-he will make a compelling witness who appears smart enough to stand up to cross examination. Granted today's cross that I listened to ranged from the mediocre to the inept. I listened on one show to a gaggle of lawyers whose consensus was that putting Zimmerman in the box worked-one lawyer opined it worked "brilliantly"-and the prosecution was flummoxed, perhaps out of surprise. I find Zimmerman's lawyer quite impressive. Zimmerman seems well represented. LR I don't know what you've been reading but if this bit of overwrought "analysis" by Noah, who I suspect has had no legal training orvexperience, is the best thing you've read on this case, you must be reading some godawful truck.

- basman

April 20, 2012 at 11:09pm

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Leaving the event of this case aside for the moment, certainty that your attacker is armed is by no means a requirement for justification of self defense. It is not hard to imagine circumstances when one might be fairly certain that an attacker was unarmed when use of deadly force in self defense could still be justified. A single blow from a closed fist can cause serious injury and, as we've seen with several cases here in Melbourne including one involving a famous ex-cricketer, they can sometimes even kill. To prove that self defense was justified, Zimmerman does not have to prove that he had reason to believe that Martin was armed or even that he did, in fact, think Martin was armed. Basically all he needs to prove is that Martin assaulted him.

- AaronW

April 21, 2012 at 9:49am

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The florida statute asks whether the defendant reasonably believed the force used was necessary to prevent imminent death or great bodily harm to himself, or to prevent the imminent commission of a forcible felony. "Reasonably" generally signals a negligence standard: what would a reasonable person believe under the circumstances (I don't know how much Florida subjectivizes the concept). Whether or not Zimmerman knew Martin had a gun is not dispositive. Depending on florida's interpretation of "forcible felony," Zimmerman might be justified in using deadly force to prevent commission of an assault, which requires no weapon. As to the statement about "might possibly have guns," it's really an open question. If a reasonable person would think there was a high probability martin had a gun, given the factual background Zimmerman had at the time he shot, that would support his contention that he reasonably believed deadly force was necessary. The important legal question for the prosecution is whether Zimmerman provoked the encounter, because that seriously undermines the self defense claim. ah the joys of being a law student at exam time. I came on here to procrastinate not study! I swear!

- rusty

April 21, 2012 at 10:19am

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Fuether to my criticism of Noah's torturing of Zimmerman's apology, I just learned that his statements about Trayvon's age and whether he knew Trayvon was unarmed were in direct answer to questions that Trayvon's mother said on national television that she wanted Zimmerman to answer. Noah ought to be feeling a tad sheepish about his post, methinks.

- basman

April 21, 2012 at 10:44am

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Aaron W as one who nearly every day heroically fights off armed and unarmed attackers--they're everywhere--I can confirm that your point is correct and well taken.

- basman

April 21, 2012 at 10:47am

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In spite of a dad being a lawyer and judge, Zimmerman has spoken with the police for hours and hours without a lawyer present. He went back to the crime scene and re-enacted the crime without a lawyer present. I don't think him taking the stand helped the prosecution. Probably didn't help or hurt Zimmerman In fact, the prosecution killed it's case here: -- Mr. O’Mara then asked Mr. Gilbreath if the state had any evidence to contradict Mr. Zimmerman’s statement to the police that he had been making his way back to his car when he was punched by Mr. Martin. Mr. Zimmerman told investigators he shot Mr. Martin in self-defense after Mr. Martin banged his head on concrete, covered his nose and mouth and reached for his gun. Mr. Gilbreath responded, “No.” -- If the prosecution cannot refute that Zimmerman was attacked, then the case doesn't seem to have much substance unless they can convince everyone that Zimmerman's story isn't believable. Part of the way they will attack this is to get Zimmerman all tripped up whenever he's on the stand. HOwever, Zimmerman responded reasonably for the brief moment he was getting questioned last week. He might be a hard guy to trip up.

- seattleeng

April 21, 2012 at 11:58am

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In the top section of my post, I meant to add the reason I think Zimmerman did all this without counsel and why he went on the stand is because he genuinely feels bad over what happened, and he believes that in talking to the police his story was strong enough that he didn't need a lawyer. if I shot someone that broke into my house at 3 AM, I would freely speak to the police without a lawyer present. If I came home and surprised my wife and her lover, and somehow the lover ended up dead with his head cracked open at the bottom of the stairs, I think I'd not say a work until I had a lawyer standing next to me. I think both of these actions by zimmerman speak volumes about his core beliefs about his actions. And based on the original response from the police, I think think it influenced the police too (in a positive fashion) if this guy gets off due to lack of evidence, that zimmerman was charged with second in an attempt to get him to plea it down is criminal in and of itself.

- seattleeng

April 21, 2012 at 12:09pm

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You make a very good point, seattle, but again I have to ask: why wasn't Martin in that case the guy in his house at 3 a.m. confronted by a burglar. Isn't Martin's response to a perceived threat -- he's on his way home from the store and a guy chases after him and confronts him -- a textbook example of standing one's ground? I'm baffled by this apparent assumption that Zimmerman was the only one entitled under Florida law to deploy the principle embedded in "Stand Your Ground." Anyone with actual legal training out there (basman, rusty etc) able to clarify that?

- ironyroad

April 21, 2012 at 12:25pm

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Stand your ground isn't at issue here. The issue here is that M & Z were at one point face to face, and, according to Z, M decided to punch him, climb on top and start beating his head on the pavement. If that is true, then Z has every right to use whatever force he can muster to make the beating stop. Right? T That is Z's story anyway. If it's true, then not much to see here. If it's false, well, then, let's learn the truth. But the problem is that the prosecutor doesn't have anyone that can refute Z. And the prosecutor admitted this at trial.

- seattleeng

April 21, 2012 at 1:41pm

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Seattleeng, let's not get too carried away here. There hasn't been "a trial." What we saw was an awkward, pre-trial skirmish. We don't know yet what will come out during a trial, what evidence will be admitted, who will testify, how they will hold up under cross, how they will come across to the jury, and so on. I reserve judgment about whether Zimmerman helped himself or not. I suspect not. Generally speaking, a defense counsel prefers that his client zip his lips. Don't give the prosecutor rope, so to speak. (By the way, you cannot start a fight then shoot the person who defends himself by beating you up. Not even the Florida law permits that.) Regardless of the outcome, justice will have been served, which is more than one can say about the initial handling of the case. Dan

- dbuck1

April 21, 2012 at 2:02pm

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". . . Zimmerman has spoken with the police for hours and hours without a lawyer present. He went back to the crime scene and re-enacted the crime without a lawyer present. " ============ Talking to the police for hours speaks more to naivete than innocence. There are three kinds of people who need a lawyer: the guilty, the innocent, and those who don't know which of the first two categories they fall in. Even if Zimmerman thought he was innocent he should shut up and retain counsel, because he may very well not be blameless. He doesn't really know. (Nor do I. but I can yack all I want because I'm not the defendant.) The jury will decide that. Keep in mind that the fact that Zimmerman shot and killed someone is not a point in his favor, it's the elephant in the jury room. Dan

- dbuck1

April 21, 2012 at 2:21pm

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....You make a very good point, seattle, but again I have to ask: why wasn't Martin in that case the guy in his house at 3 a.m. confronted by a burglar. Isn't Martin's response to a perceived threat -- he's on his way home from the store and a guy chases after him and confronts him -- a textbook example of standing one's ground?... This isn't a matter of legal training but what from what is publicly known grounds the proposition that Z chased after Martin and confronted him? All I'm aware of is that it seems at one point Z was following M and then called 911 and was told to stop following him and answered "Ok."From then to the fight and shooting we don't know much for sure except M was on top of Z, Z suffered bloody lacerations to the back of his head, a broken or at least bloodied nose, and had grass stains and dampness on the back of his shirt or whatever he was wearing. All that in between is up for grabs. If, as per Z, he was simply going back to his car and M came up to him and punched him out and down, then, on that theory of the events, I can't see any argument that Z was in any way an aggressor. Similarly, if we step it up a notch, and assume Z simply asked M "What are you doing here?" or told him, another notch up, to "Get out of here" but without a threatening gesture or his gun being visible, I can't see any argument for Z bring the aggressor within the terms of Florida law as I understand it, not so well. There are any number of ways this could all have gone down, and each will generate its applicable legal conclusions given the Florida law.

- basman

April 21, 2012 at 3:00pm

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I find Seattle's posts pretty good here.

- basman

April 21, 2012 at 3:01pm

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Yes -- I'm not a lawyer but in my time in a JAG office we did our best to stop clients talking to the military police or the prosecutor's office down the hallway in order to "explain" things -- they often didn't get it that they could accidentally go on record with something that would strengthen a potential charge. Seattle, it looks somewhat unconvincing if one maintains that the SYG law is essentially Zimmerman's first line of defense (otherwise why wasn't he arrested at the outset? -- he was the one with the gun, after all, and the unarmed guy was dead) and simultaneously argues that SYG isn't at issue. If Martin felt threatened by Zimmerman -- which isn't so unlikely -- and thought he saw a gun, then putting the armed attacker on his back seems like a reasonable, even courageous, reaction. Anyway, we don't know what we don't know yet (although I'd still bet on an acquittal).

- ironyroad

April 21, 2012 at 3:07pm

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I just want to say too that if Z is acquitted or gets, better for him, immunity from prosecution, a lot of people should be embarrassed from their rush to judgment and presuming Z guilty, including me initially. And in fact and on a bit more reflection they and I should be embarrassed even if he's found guilty. For we have still committed those same and serious social errors. And some folks at MSNBC, O'Donnell, Matthews, Sharpton, Bashir, Schultz, are the specific ones I've seen, should be aghast at their proselytizing and sensationalizing of Z's guilt. That's disgusting and reprehensible, a sacrificing of Z on the altar of their insufferable and maddening ideological self righteousness. They enrage me for doing that. O'Donnell may be the worst.

- basman

April 21, 2012 at 3:13pm

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But let's not bs each other here, whatever about TV: if the roles had been reversed, and Martin had had the weapon and Zimmerman was dead, then he would have been arrested on the spot and I doubt very much that we would have long anguished national debates about who witnessed what and standing one's ground and convoluted explanations about how you can feel threatened even if you're armed and chase after someone.

- ironyroad

April 21, 2012 at 3:33pm

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ironyroad, here is that case, http://www.salon.com/2012/04/11/when_stand_your_ground_fails/ John McNeil is doing life for shooting a man he thought was about to assault him on his on property. Dan

- dbuck1

April 21, 2012 at 3:42pm

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What's the bs here? Whatever counterfactual you hypothesize is impertinent. If MSNBC is guilty as I have charged, then what relevance other imagined wrongs in non existent scenarios? So, again, what's the bs here?

- basman

April 21, 2012 at 3:43pm

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Thanks, dbuck. basman, the bs is pretending that race doesn't have anything to do with how law enforcement and the justice system proceeds (on various levels, local and state). And history is not normally what is meant by the term "counterfactual." And as we're not in court here, but on a public discussion thread (the one on which we've just found MSNBC "guilty"), what is or isn't pertinent in a strictly legal sense seems more "impertinent" than anything.

- ironyroad

April 21, 2012 at 3:54pm

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To Zimmerman's defenders, do you believe that Zimmerman was blameless in this case? That is, do you quibble specifically with the fact that Zimmerman was charged with 2nd degree murder, or that he was charged at all? If the former, then what was the appropriate charge?

- bunthorne

April 21, 2012 at 4:03pm

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What does race have to do with the hysterical proselytizing and hyping up of Z's guilt? What does it have to do with O'Donnell shrieking, yes shrieking, as a typical example, repeatedly that Z "executed" M? I say race is irrelevant to how wrong that is and offers itself in fact, opposite to what you say, as a false ground for all the whipped up, hysterical self righteousness. I understand we're not in court and I use the words guilty and impertinent in a common sense non judicial way to say MSNBC should be marked very lousy and that race is irrelevant to its broadcasters' sins of commission and so is impertiment in the non legal sense of, drum roll, not pertinent.

- basman

April 21, 2012 at 4:07pm

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I'm not Z's defender, if that comment is addressed to me. I take no position on the appropriateness of the charge. I'll take a position on that once the evidence is in and the case decided, not that my assessment necessarily follows from the verdict or the decision if Z gets immunity from prosecution, a judge's decision on motion.

- basman

April 21, 2012 at 4:11pm

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bunthorne: "To Zimmerman's defenders, do you believe that Zimmerman was blameless in this case?" No, he's not. But if Z's story is true, then Z didn't do anything illegal. If his story is true, then the first illegal action was Martin taking a swing at him and knocking him to the ground. The problem for the prosecution is there isn't anyone that can really say Z is lying. Remember, too, that after walking by Z's truck (with Z inside), M had plenty of time to make it home at a walking speed. What is strange here is that M appears to have lingered to see exactly what Z was up to. Of course, this isn't illegal either. If in fact M had time to walk home but instead opted to double back or linger and then engaged and then punched Z, then Z's case is that much stronger. At that point, depending on the severity of the beating that he thinks he's getting Z has every right to shoot him. And I suspect if one isn't punched routinely for a living, a solid punch in the face will seem like the end is near. But if Z approached Martin with his gun drawn, then the entire thing flips. At that point, M has every right to fight Z and Z should go to jail. dbuck1 writes: "Talking to the police for hours speaks more to naivete than innocence" Agree. But Z's dad is a judge. And you can bet he's been coached on this before. However, the less guilty a person is, the more inclined people are to talk to the police. It's human nature. Add to this massive remorse and the feeling that it was completely justified and I can see him doing what he did in spite of the legal coaching that inevitably came from dad over his lifetime. If you shot an intruder at 3 AM that had broken and come in a window and stabbed a family member would immediately clam up and say "I'm not saying a goddam word. I want my lawyer present." Nobody would. You'd immediately start trying ot help the police understand what happened. Because you feel you are 100% in the right and because you were 100% certain you weren't going to get in trouble and because you feel awful for what has just happened. dbuck1 writes: "By the way, you cannot start a fight then shoot the person who defends himself by beating you up. Not even the Florida law permits that." and "Regardless of the outcome, justice will have been served, which is more than one can say about the initial handling of the case" Yes, agree to both. However, many legal luminaries are saying there was not enough here to bring him up on 2nd degree. If this overreach is an attempt to get him to plea to less to appease the masses, then this is duke lacrosse all over again.

- seattleeng

April 21, 2012 at 5:22pm

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irony writes: "if the roles had been reversed, and Martin had had the weapon and Zimmerman was dead, then he would have been arrested on the spot " Not true. Roderick Scott was a black guy that heard a ruckus outside his house at 3 AM, called 911, and went outside and encountered a white teen that he thought was burglarizing a neighbors car. There had been a history of robbery in the neighborhood. Scott confronted the unarmed teen in the street. A struggle ensued, and the white teen was killed by Scott's licensed handgun. He was charged with murder, a grand jury knocked it down to manslaughter. He was acquitted by a jury. Kind of shoots a hole in your theory. What is different here is the absence of Sharpton and all the other muckrakers. Nobody put a bounty on Scott's head. Nobody made his family go into hiding.

- seattleeng

April 21, 2012 at 5:32pm

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To me it seems that ironyroad, who urged such restraint and caution when we discussed Nidal Malik Hasan's mass murdering spree at Fort Hood, always insisting that we are not fully aware of the facts and the motivations and should reserve judgment, is doing the very opposite of that in this case. How so? Maybe race does play a major role in the way people apportion guilt. If the perpetrator is of a darker skin, he should be given every consideration for presumption of innocence. If the victim is of a darker skin, then the perpetrator should be presumed racist and guilty. Because we live in a racist society and race always plays a role in such cases. I agree. Justice, however, is colour blind and the rich white boys who live in mansions are no less entitled to it than poor black boys who live in slums. White men are no less entitled to justice than black youths. But in America, the mobs are baying for blood. O'donnell as described above has forfeited any claim for moral credibility by his choice of words. He is not far for being a mob-inciter.

- noga1

April 21, 2012 at 5:50pm

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seattle: "Kind of shoots a hole in your theory." No, it supports it -- by your own account he was arrested and charged with murder. Also, read dbuck's link to the article on the McNeill case, which neither supports nor shoots a hole, but suggests that prosecutors do indeed bow to pressure. basman -- I'm not defending all the commentary and any rushes to judgement, but I am saying that looking disingenuous and acting as if race was the just about last thing one would think of in a case where an unarmed black 17-year old is shot dead while walking home from the store at 7 p.m. is somewhat unconvincing. But let's drop it. I don't want to get into a pointless argument where we are talking about two different things.

- ironyroad

April 21, 2012 at 6:00pm

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I can't remember everything I posted about the Hasan case, Noga, but I do recall that I never suggested he should not be charged with all the murders that he committed. And for the record, neither do I support, in any way whatsoever, deploying racial, class, or other considerations that would distort the fair and non-discriminatory application of the law. In fact, I tend to be a bit idealistic (some might call it fanatic) about that.

- ironyroad

April 21, 2012 at 6:07pm

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Truth is very difficult to determine. The right thing to do is difficult to do in a hurry. Law enforcement is a difficult job to do well. That is why law enforcement officers go through a lot of training, and even so, often make mistakes and commit wrong actions. Any of us might have to use violence to defend ourselves or others. To go out looking for law enforcement situations without training (which is what I think Zimmerman was doing) is asking for trouble. We have a very well-trained and competent police department near where I live. I went for a "ride-along" not long ago. The police department has an auxiliary unit who patrol and notify officers of alarming situations. The officer I was riding with told me that they are concerned about auxiliary unit members who insert themselves into situations that may be "over their head." I think this describes what Zimmerman did. He was told to back off by emergency operators, was he not? We are all still trying to get to the bottom of this, and perhaps we never will.

- skahn

April 21, 2012 at 6:43pm

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Minor point, Seattleeng, but George Zimmerman's father was not a judge, he was a magistrate. And in Virginia, not Florida. Regardless, if his father advised his son to talk to the police for hours without benefit of legal counsel he's an idiot. His son had just killed someone. It doesn't matter if he thought his son was innocent or not -- and keep in mind there's no way the father could have known all the circumstances of the shooting, regardless of what his son might have told him. His son faced an array of possible criminal and civil liabilities. Anyone with a modicum of experience in law enforcement or the legal system is well aware that you never know what you don't know. Assume nothing. As it turns out, his son is now charged with second degree murder, and he's still talking. (Maybe we can add headstrong to naive. The 911 operator cautioned him twice to stay in his car, as I recall. He did not.) I make no prediction about how this will turn out. Zimmerman might be acquitted; he might be convicted on any of a number of charges, from second degree murder to assault. He might accept a plea. He also faces possible civil liabilities. Dan

- dbuck1

April 21, 2012 at 6:50pm

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Incidentally, my father was a police officer for over 35 years. I know a bit about the difficulties of law enforcement too -- less than others do, certainly, but possibly more than some.

- ironyroad

April 21, 2012 at 7:10pm

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I hope you weren't grouping me with "Zimmerman's defenders", bunthorne. I don't defend him at all. Were I on the jury, I'd be inclined to convict him for the reason that, as seems obvious, he pursued Martin and pursuers can't claim self-defense. I just wanted to point out that the self defense defense does not hinge on whether the dead man was armed or could reasonably be presumed to be armed.

- AaronW

April 21, 2012 at 7:45pm

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ironyroad: You kept insisting that we do not know enough to establish a motive. I agreed with you. I didn't think the profile as emerged from the preliminary reports fitted a jihadist. But you seem here to insist that you are pretty sure of the motive. It is racist. You presume to know, whereas if you were consistent, you should be declaring scepticism.

- noga1

April 21, 2012 at 8:11pm

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dbuck writes: "Regardless, if his father advised his son to talk to the police for hours without benefit of legal counsel he's an idiot." There's no indication his father advised this. There's every indication that Z acted just like most homeowner that shot someone and spoke to the cops based on the belief he did nothing wrong and that the truth will always prevail. Perhaps not the same way you and I might react. Aaron writes: "Were I on the jury, I'd be inclined to convict him for the reason that, as seems obvious, he pursued Martin and pursuers can't claim self-defense." Following someone isn't at all a crime. You are also ignoring that Martin had ample time to make it home if he felt Zimmerman was a risk. And Martin didn't. He appears to have lingered... If someone is following you, do you have the right to hide in the bushes and cold cock him when the follower gets close?

- seattleeng

April 21, 2012 at 9:05pm

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Ok, "defenders" turned out to be a bit strong. But, ignoring the highly charged racial component, and putting aside the self-defense question, how do we address what happened before the confrontation? The focus will understandably be on the act of murder. But, should Zimmerman escape that charge, should he not be charged for taking upon himself the role as neighborhood enforcer? It was, after all, his actions that led to the confrontation. I would hate to have the state of Florida place its imprimatur on untrained, undeputized self-appointed vigilantes. If he escapes the murder charge, and any other charge, I am afraid that is just what will happen.

- bunthorne

April 21, 2012 at 9:17pm

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says seattle, now a lawyer: "If the prosecution cannot refute that Zimmerman was attacked, then the case doesn't seem to have much substance unless they can convince everyone that Zimmerman's story isn't believable." Getting out of his car to pursue Martin, having been instructed by the police not to do so, while armed with a pistol and then either stalking Martin or confronting him ought be sufficient to convict him of manslaughter which, in my opinion, is the likely outcome if the prosecution allows the jury to be instructed that it can convict on the lesser included offense.

- roidubouloi

April 21, 2012 at 9:26pm

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I believe that one of the requirements of the community watch was to be unarmed. Thus, Zimmerman was violating another duty. If criminal negligence exists in Florida, that would also apply.

- roidubouloi

April 21, 2012 at 9:30pm

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I believe that one of the requirements of the community watch was to be unarmed. Thus, Zimmerman was violating another duty. If criminal negligence exists in Florida, that would also apply.

- roidubouloi

April 21, 2012 at 9:34pm

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"But you seem here to insist that you are pretty sure of the motive. It is racist." Noga, that's not true. I don't know Zimmerman's motive and I don't think I ever posted anything that suggested I did, or suggested that Zimmerman is a racist. Indeed, there is some evidence that he isn't, in as much as one can judge these things. What I have said, and what I stand by, is that there is a whole documented history of the racial prejudices of police, prosecutors, and the judiciary, especially but not only in the South. Florida has its own sub-genre of this. I don't in fact think that racism per se is at root of the crime here, but rather something more on the lines of what skahn and others have suggested. A not very bright guy with a gun getting involving himself in/creating an incident which involves a somewhat controversial legal defense. I am more inclined to see a kind of diffuse racism in the initial actions of the authorities here -- which I don't blame Z. for -- that gave the impression that as long as the unarmed dead teenager was black and the guy who killed him had some explanation along the Stand Your Ground lines then everything was hunky dory. That is what provoked the nationwide response eventually.

- ironyroad

April 21, 2012 at 9:41pm

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ironyroad: Here is what you said: "...if the roles had been reversed, and Martin had had the weapon and Zimmerman was dead, then he would have been arrested on the spot and I doubt very much that we would have long anguished national debates about who witnessed what and standing one's ground and convoluted explanations about how you can feel threatened even if you're armed and chase after someone." When you use phrases like "convoluted explanations about how you can feel threatened even if you're armed and chase after someone." you are implying that you don't believe Zimmerman's version. And why not? You spell it out quite explicitly: "if the roles had been reversed, and Martin [the black youth]had had the weapon and Zimmerman [the white guy] was dead,..." It's all about racism, then.

- noga1

April 21, 2012 at 9:50pm

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...Getting out of his car to pursue Martin, having been instructed by the police not to do so, while armed with a pistol and then either stalking Martin or confronting him ought be sufficient to convict him of manslaughter which, in my opinion, is the likely outcome if the prosecution allows the jury to be instructed that it can convict on the lesser included offense... No evidence that I'm aware of that after being told not to follow M, Z did. If I'm missing that evidence, what is it? Same question as to your assertion of "stalking"? And ditto "confronting"?

- basman

April 21, 2012 at 10:04pm

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I'm no defender of Z. I just say let the evidence come out. This is a nutshell of Z's position: ...He was on his way to the store to do some errands when he saw M walking through his neighborhood. He followed M but lost track of him. He was returning to his SUV when M approached him from the left rear and confronted him. M asked him, "Do you have a problem?" He replied "No", and M said, "Well, you do now" or something similar, while Z reached for his cell phone. Mmthen punched him in the face, knocking him down, and began beating his head against the ground. Z called out for help, while being beaten, before shooting M once in the chest at close range, in self-defense...

- basman

April 21, 2012 at 10:28pm

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The "Court of The New Republic" is now in session. Who is the presiding Judge? Who is in charge of the prosecution? Who is in charge of the defense?

- skahn

April 21, 2012 at 10:45pm

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So let me refine my own question: what's the evidence that Z was following M at their point of contact? I overlooked that Z had followed M for a while but as noted he claims to have lost him and was returning to his car when they met up with each other as Z describes. That's a more accurate way of framing the factual question.

- basman

April 21, 2012 at 11:02pm

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Roid writes: "Getting out of his car to pursue Martin, having been instructed by the police not to do so, while armed with a pistol and then either stalking Martin or confronting him ought be sufficient to convict him of manslaughter which, in my opinion, is the likely outcome if the prosecution allows the jury to be instructed that it can convict on the lesser included offense." He was not "instructed" to do anything. He was told "you don't need to do that". He said "OK" and then stopped a few seconds later, and began answering 911 dispatcher questions about his name, number and where the cops could meet him. He continued to do that for the next few minutes. Note Martin passed by Z's truck (with Z sitting inside talking to 911) at 1:20 in the transcript. At that point M had a straight shot home. A 30 second jog would have gotten him home. He could have taken one of 2 streets OR a path to get home. Nobody was blocking his route. M lingered a bit longer, and then started running and ran past his sidewalk home. At that point, Z got out of his car to follow. He was told to stop following, and complied. This was at 2:25. The 911 operator and Z then had almost 2 minutes of chitchat about name, phone number, where to meet the cops, etc. During this time, it appears Z walked the direction he though M went. The call ended at the 4:07 mark. A minute or so later, M would be dead. As Z was walking back to his car, he alleges he was accosted by M who said "what's your problem, holmes?" to which Z replied "I don't have a problem" and then the the fight starts. Tell me, roid, at which point was a law first broken?

- seattleeng

April 21, 2012 at 11:24pm

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Noga, I don't understand your quoting me because my quotes seem to me to support what I said earlier but you quote them at me as if you think the opposite. Let me state as clearly as I can what my position is -- a two-part statement, if I may: Part 1 (the individual context): I don't know, and don't claim to know, whether Zimmerman is a racist or not or what his motives (if indeed motive is relevant in this incident) were. I am inclined to give Z. the benefit of the doubt in this, and it's very possible that race had nothing much to do with this tragedy. Part 2 (the institutional and social context): I do know, and claim to be able to support the assertion, that there is a history of unfair and discriminatory practices in the U.S. when it comes to law enforcement and the judicial system, and these practices were/are connected with race. If you want to characterize that as "it's all about race," go ahead. I would strongly dispute the word "all." It seems to me, however, that if you read the article on the McNeil case in Georgia that dbuck linked to earlier, then it's difficult at the very least to argue that it's never about race. I don't say that you're saying that -- maybe I'm not entirely sure what you're saying -- but you appear to have a rather narrow focus that excludes all the messy stuff.

- ironyroad

April 21, 2012 at 11:58pm

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Irony, I just spent 5 mins reading about the the McNeil case referenced in Slate. This adds a wrinkle because because Epps, who was white and was killed, had not yet done ANY physical harm to McNeil, who was black. The claim here was that Epps was coming at McNeil in a menacing manner and that is why he was shot. Additionally, note the cops did not arrest Epps on the spot. It was a DA bowing to pressure much later that caused it to be re-examined by a grand jury. Same as Zimmerman case. Your stance is very inconsistent in this. You seem to hold fault in Zimmerman's reaction to getting his head bashed, but you are sympathetic to McNeil who hadn't even been touched yet. Additionally, the cops in both cases acted the same: They let the shooter go. Case closed as far as they were concerned. And in both cases, the DA re-opened in the case due to race pressure from the public. I think both Zimmerman and McNeil acted reasonably. But man, it sure underscores that carrying a gun is not something you do causally. If a gun is involved, what would have been a beating of person B by person A becomes the death of A because he was shot by B. Of course, we never know if it would have been a mild or severe beating of B. Maybe that is the direction society is headed, and there will be more deaths by would-be attackers before civility sets in.

- seattleeng

April 22, 2012 at 1:18am

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"but you are sympathetic to McNeil who hadn't even been touched yet." No. I suggested that the case is maybe revealing about some things, but I also said that it neither supported nor shot holes in my argument. From the limited details in Slate I see McNeil as a bit more of a genuine SYG case as his family had felt that this Epps guy was weird and wanted him out of their hair and he had threatened McNeil's son directly (I mean, in a sense this is exactly what the SYG supporters would paint as the model situation to justify the law), but again -- as in Zimmerman/Martin -- having the gun seems to lead to a tendency to use it with lethal force as a first resort. But this is obviously a very different set of circumstances too, including of course no grand jury for Z.

- ironyroad

April 22, 2012 at 2:28am

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"Martin's girlfriend, who was on the phone with him in his final moments, told ABC News in an exclusive interview that she has not been interviewed by police, despite Martin telling her he was being followed. The 16-year-old girl, who is only being identified as DeeDee, recounted the final moments of her conversation with Martin before the line went dead. "When he saw the man behind him again he said this man is going to do something to him. And then he said this man is still behind him and I said run," she said. Phone records obtained by ABC News show that the girl called Martin at 7:12 p.m., five minutes before police arrived, and remained on the phone with Martin until moments before he was shot. DeeDee said Martin turned around and asked Zimmerman why he was following him. "The man said what are you doing around here?" DeeDee recalled Zimmerman saying." _______________________ The moment Zimmerman got out of his car, armed, contrary to the instructions of the police that he was not to do that and they would respond -- the full limit of what he was entitled to do -- and followed Martin, Zimmerman became responsible for what ensued. He had no privilege to be either armed, according to the rules of neighborhood watch, or out of his car, and certainly not to be behaving in a manner that a reasonable person might interpret as threatening. If Zimmerman were himself going about his proper business, let's say walking to his own house, and Martin interpreted this as menacing, a confrontation ensued, and Martin were shot, it would be a different matter. Not knowing how the confrontation unfolded, who was the aggressor, we would be unable to hold Zimmerman responsible. But Zimmerman had no proper business following Martin. Hence, he is the aggressor regardless of how the confrontation unfolded. Zimmerman himself, without justification, created the confrontation in which Martin was shot and killed. That is enough to convict him.

- roidubouloi

April 22, 2012 at 4:37am

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"I think both Zimmerman and McNeil acted reasonably. But man, it sure underscores that carrying a gun is not something you do causally. If a gun is involved, what would have been a beating of person B by person A becomes the death of A because he was shot by B. Of course, we never know if it would have been a mild or severe beating of B." Bizarre. If you are carrying a gun and go in pursuit of someone without any privilege to do so, you are responsible for what ensues. And, needless to say, we have no reason at all to believe that Martin was administering a beating to Zimmerman. But, even if he were, the confrontation was necessarily provoked by Zimmerman. Hence, if anyone had a privilege to stand their ground, it was Martin. That is sufficient for manslaughter.

- roidubouloi

April 22, 2012 at 5:39am

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Stand your ground cannot possibly mean that you have first the right to create a confrontation and then use lethal force in the confrontation that ensues. That is even assuming Zimmerman's story is credible, which it is not.

- roidubouloi

April 22, 2012 at 5:41am

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I don't agree with the above three formulations. If Z had indeed stopped following Martin and was simply retreating back to his car and M decided to confront him, angered, for having been followed, and thereupon took it upon himself to fight with Z and Z in answering M when M came up to him said "I've got no problem," and then M swung on Z, Z is no aggressor. And Z's self defence defence is made out. I.E. if Z is believed, he either gets immunity from prosecution or he gets acquitted.

- basman

April 22, 2012 at 9:47am

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Tim Noah's post began, "There's a lot we still don't know about what happened between George Zimmerman and Trayvon Martin." Still true. No amount of if it happened this way, if it happened that way, or if A is to be believed, if B is to be believed will change that. We can construct our realities for the case, realities that determine a certain outcome, but at this point, the realities that might play out in the courtroom and, ultimately, in the jury room, are not known. What evidence will be admitted; what witnesses will say; how witnesses will comport themselves & holdup under cross; how skilled the prosecutor and defense counsel will be; what kind of jury will be assembled. Ultimately, how said jury will judge the drama that is a trial. All remains to be determined. Dan

- dbuck1

April 22, 2012 at 10:22am

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Even if that version were proved, basman, and were I on the jury, it wouldn't deter me from voting to convict on manslaughter if not murder. Whether or not M approached Z after the latter aborted his mission, while armed, Z knowingly created a conflict that a reasonable person would recognize could escalate to violence. If in fact Martin did assault Zimmerman, it was an assault that Zimmerman provoked. Self defense does not and should not apply. Imagine this scenario: I prepare myself for a Saturdy night on the town by strapping on my Smith & Wesson. Feeling tougher than usual--metal will do that for a fella--I start mouthing off to every half-drunk muscle head I meet at the bar, the meaner-looking the better. I taunt them relentlessly, saying things like, "You wouldn't dare fight me. You're too much of a pussy." Then when eventually one of these guys does take a swing at me--maybe I even let him land a couple just to make it clear that he is assaulting me and the other way around--I pull out my shooter and drill him. Should I be able to claim self defense? Of course not. You might say that the Z/M situation was different, and I would agree--different in that the Z/M situation was even more egregious. Insulting people in bars is not a crime, while menacing people on dark streets is. Committing such a crime while armed is a further crime, and in any event the crime initiated by Z eliminates any claim to self defense. Z may have thought better of his actions before M turned on him--if M turned on him. So what? By that time it was too late. Through his own reckless actions he had already set the deadly wheels in motion.

- AaronW

April 22, 2012 at 10:43am

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The other thing is that self defense is an affirmative defense; the burden of proof shifts to the defendant who must provide clear and convincing evidence that he had reason to feel threatened. If Zimmerman's defense is that Martin assaulted him and if there is no evidence for that version of events other than his own word, I'd say he has a big problem. Given his interest in an acquittal, Zimmerman's word wouldn't be very convincing to me were I on that jury. This too is as it should be. Otherwise anytime one person shot and killed another in the absence of eyewitnesses, the shooter could claim that the other assaulted him and get off.

- AaronW

April 22, 2012 at 11:09am

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But Aaron W what you say makes no sense to me. A guy is following me. I don't like it. It scares me and enrages me. He stops following me and walks away. I have the equal option of gong home, one way, or go the opposite way and confront him. I decide on the latter and after he answers me that he's got no problem with me I punch him out and down and then sitting on top of him pound his head into the ground while no heeds his calls for help and while I show no intent to stop. He then manages to get his hand on his gun and hevshoots me in an effort to defend himself. (I write this note from the grave.) Second degree murder on these facts assuredly not. Manslaughter on these facts assuredly not. The temporary following while socially ugly is no crime. His retreat to his car--stops followng me and walking away from me--breaks any arguable chain of his arguable causation. And voila, Z's defense, which if believed, I stress that of course, if believed, means he walks away, by judge's order on immunity motion, or by a jury acquitting him.

- basman

April 22, 2012 at 11:34am

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P.S. From the Florida law: "The justification described in the preceding sections of this chapter is not available to a person who: (2) Initially provokes the use of force against himself or herself, unless: (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force." This generously to your position takes it for granted that Z initially provoked the use of force. The initial temporary following and then clear retreating, if Z is believed, doesn't to my mind amount to him initially provoking the use of force. But I assumed for the sake of argument that he did.

- basman

April 22, 2012 at 11:57am

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Aaron writes: " I taunt them relentlessly, saying things like, "You wouldn't dare fight me. You're too much of a pussy." These are "fighting words" and the courts do not allow you to use fighting words and then shoot the guy. Aaron, assume for a moment that Zimmerman did NOT have a gun and was beaten by Martin and left bleeding on the sidewalk? You are saying Martin's beating was justified? Because it was self defense? In spite of Martin's lingering and having an easy way home? There are probably two positions you can take here in this hypothetical (Z has no gun, M beats him severely) Case #1: M's actions were reasonable. In other words, if someone sketchy is following you, in spite of having an easy path home, it is OK to lay in wait and beat the crap out of them. Case #2: M's actions were unreasonable. it is not appropriate to beat a person if they are acting weird and following you if you have an easy escape route. I don't think you can make the case that Z was acting threatening. From M's perspective, weird, yes. Case #3??? Which is it Aaron? And Roid and Irony? If you claim that M's actions were unreasonable, then the shooting becomes reasonable. dbuck1 writes: "Still true. No amount of if it happened this way, if it happened that way, or if A is to be believed, if B is to be believed will change that." Yes, but we know what Zimmerman said, and we know the prosecutor doesn't have a witness to refute Zimmerman. So, the challenge here is to refute Zimmerman. Unfortunately, I think most here don't know what Z has actually claimed. I don't think most here actually understand that M had an easy path home, but appears to have waited or doubled back specifically to confront Z. Irony writes: "his family had felt that this Epps guy was weird " And in the 911 transcript, Zimmerman felt Martin was weird. Irony writes: "But this is obviously a very different set of circumstances too, including of course no grand jury for Z." I think the grand jury is used if a prosecutor doesn't feel there's anything there. But in this case, the prosecutor DID feel there was something there, the grand jury wasn't needed. I think too that a grand jury is used by a weak prosecutor who wants to kick a difficult decision to someone else. Take comfort in the fact that the police acted identically in both cases. Where justice failed was the bleating citizen mobs, and prosecutors bowing to pressure. In both cases.

- seattleeng

April 22, 2012 at 12:30pm

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Seattleeng you are erroneous from the other side. We don't know all the in between evidence, the forensic evidence, etc. You can speculate all you want but the prosecution thinks it has a case. No one is in any position to gainsay that, not until its evidence becomes public and not until the defense case is tested in cross examination, by the countering evidence and the legal analysis of that evidence as manifest both in the jury addresses and the jury charge. Vociferous prejudgments of Zimmerman's acquittal/innocence are as wrongheaded as those of his conviction/guilt.

- basman

April 22, 2012 at 1:10pm

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basman writes: "You can speculate all you want but the prosecution thinks it has a case" There's a very good read here from a criminal defense attorney at the link below. There were two important clues surfaced by the defense attorney at the hearing. In short, he asked the investigator (Gilbreath) what evidence he had to justify the word "profiled" and and "confront" in the affidavit. Read the link. In short, the investigator could not clearly state there was evidence to justify the use of those words. The investigator was asked "You have nothing to support the confrontation suggestion, do you?" to which the investigator replied "I believe I have answered it" (and yet his non-answer was weak). There you have the lead investigator in the case effectively stating he has no idea why they started fighting, nor does he know who started it. Zimmerman is the only guy that knows. It's very unlikely anything else will come out on this key point. I suppose ballastics might show that M had no powder burns, which would tank Z's case. Or that M was shot in the back. Or that Z was coked up and paranoid. But if the basics of Z's story hold up, then this is very, very tough for the prosecution. www.talkleft.com/story/2012/4/21/22713/4445 Read the link. It's very good. PS. The link also gives the writers take on the state strategy: --- "De La Rionda's strategy and questioning today leads me to believe even more strongly that they won't dispute that Martin was the physical aggressor -- the one who first resorted to violence. Instead, they may tell a story that has Martin being followed for no good reason, and that Zimmerman's verbal demand to know what he was doing in the neighborhood, based on his unjust perception that Martin was a criminal, somehow provoked Martin into hitting him. They will add that Martin was scared, acted impulsively, and didn't hit Zimmerman hard enough to warrant a reasonable fear by Zimmerman of serious bodily injury or death. Trying to cast Zimmerman as a de facto aggressor because Martin shouldn't have been followed in the first place, will not work. For one thing, Zimmerman wasn't breaking the law in following Trayon or even in demanding he account for his presence, if that's what happened. Was it morally objectionable? Yes, but that's why citizens' watch groups and programs encouraging people to report suspicious behavior are a bad idea. "Suspicious" is far too subjective a term. Also, the state doesn't dispute that Zimmerman was on a personal errand that night and not acting in his capacity as watch person. Nor is Zimmerman law enforcement officer or agent of the state, whose actions are subject to the 4th Amendment. No one is entitled to respond to being followed or verbally confronted with physical force. No matter how much of a saint Martin was before that, if he threw that first punch, I think Zimmerman's only burden is to show some evidence, not a lot, that as a result of the force used against him, he was reasonably in fear of serious bodily injury or death. Even if he is saddled with the extra burden of showing he couldn't get away (which in my view he shouldn't be), his medical records showing a broken nose (which O'Mara offered to produce today) and the photographic evidence of his head injuries taken three minutes after the shooting, should easily suffice to meet it." ---

- seattleeng

April 22, 2012 at 1:50pm

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Basman, 1:10 pm -- agree. Much has been made here about what X said (I use X as a stand in for whomever). But what X might have said or will say if he takes the stand, is subject to so many cross currents, e.g., other testimony, physical evidence, witness demeanor on the stand, unexpected answers under cross. I was on one jury where almost the entire case collapsed with the reckless remark of a key prosecution witness, and where the defendant was convicted (on one count) based on an inadvertent admission by a defense witness. The remarks came as a surprise, I am sure, to both the prosecutor and defense counsel. In another case, a murder trial, a defense witness gave a furtive wink to the defendant while leaving the stand; several jurors saw it & we discounted his testimony. The victim's mother, testifying for the prosecution, said that the defendant had threatened to kill her daughter. We did not find her credible (for other reasons), and thus discounted her testimony. Two people had told the police that the defendant had admitted to them that he had shot the victim, but said it was an accident. On the stand, both witnesses recanted, saying they had been coerced. We believed their initial story (his admission that he shot the victim, not that it was an accident) and, together with other evidence, e.g., he shot the victim twice and left her mortally wounded in her apartment, resulted in a first degree conviction. Trials are dramas, except that they don't always follow a script. Dan

- dbuck1

April 22, 2012 at 1:57pm

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Come on seattle, there's a universe of difference between McNeil's family thinking Epps was weird and intimidating over several weeks of a business relationship on their own property and Zimmerman thinking Martin was weird with a half-minute of observation and no interaction whatsoever. I agree with you to some extent that one can see both cases as morphing from a "police making right call" situation to "DAs bow to illicit pressure and prosecute," but it's also very striking in the McNeil case that the Georgia jury did not acquit in such a model "Stand Your Ground" case (exactly the kind of acquittal than many are predicting here for Z.). [Just parenthetically, with respect to the SYG provisions, I'm wondering whether any of these laws makes any distinction between appropriate and inappropriate use of a weapon -- e.g. whether shooting to kill is a legitimate response when the gun could have been used to cause the attacker to stop or retreat?]

- ironyroad

April 22, 2012 at 2:25pm

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Basman, the difference between your guy-following-me scenario and the reality is Zimmerman's weapon. The gun was the only factor that introduced a risk of deadly violence, and since Z brought the gun, there was a special burden on him not to provoke an altercation in which he might be forced to us it. If we're going to permit civilians to carry concealed weapons--a supremely bad idea IMO--then we must ensure that they don't go out and provoke their fellow citizens. Z was in the wrong the moment he started following Martin while he, Zimmerman, was carrying a firearm. Any hypothetical that leaves the gun out misses the point entirely.

- AaronW

April 22, 2012 at 6:19pm

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Irony, fair point in there being a big difference in weirdness. Do you think McNeil deserved jail time? Read about the McNeil case at the link below. There are a few key facts not often reported: 1) McNeil reported to the cops to he was going to "whip his ass" in the 911 call, and he told them to thus hurry. That was a big mistake it seems. 2) McNeil had time to uncase and load his gun before he argued with Epps. That was a big mistake it seems. 3) McNeil lied to police and said Epps pulled a knife on him. In fact, Epps knife was found still in his pocket. That was a massive mistake. In the jury instructions, if the jury thought McNeil was lying and thus unreliable, then they were allowed to reject his argument of self defense. So, it sounds like the jury opted to believe NOTHING said by McNeil. Imagine if Z had told 911 he was going to "find this guy and whip his ass" and then loaded his gun and then left the car...at that point Z's case gets a lot closer to McNeil's case. But absent something like that, I still think Z is much less guilty than McNeil. After learning this new data, I'm a bit more conflicted on McNeil (previously I noted I thought he should not have seen any jail time). caselaw.findlaw.com/ga-supreme-court/1418360.html

- seattleeng

April 22, 2012 at 6:34pm

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Aaron writes: "Basman, the difference between your guy-following-me scenario and the reality is Zimmerman's weapon. The gun was the only factor that introduced a risk of deadly violence, and since Z brought the gun, there was a special burden on him not to provoke an altercation in which he might be forced to us it." There is no special burden put on a person that is carrying a gun or a knife or a shovel or a fist backed by some training. What you just stated is purely a made up fantasy in your head. Who broke the first law in this long string of events?

- seattleeng

April 22, 2012 at 6:36pm

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AaronW, I don't think so. (Trayvon of course wouldn't have known about the gun.) Once Zimmerman ceased following him and was going back to his car, on his version and if believed, all menace, actual or possible, ended. It was not for Martin at that point, after the menace ended, to take matters into his own hands and go out of his way and assault Zimmerman. That action introduced a new and separable transaction that has to be separately assessed. On your theory the mere act of carrying a gun imposes an intolerable burden of tip toe conduct on anyone legally carrying, a duty not to raise any hackles in any circumstances, even when one's actions are clearly lawful: no flipping anyone the bird, no ogling a hot girl with her boy friend around or even otherwise, no losing patience with your waiter, no vociferously complaining to your dry cleaner, no sarcastic remarks, no hoggish driving, no arguments about politics or religion, no infinity of actions that could, no matter how attenuated the nexus, lead to giving offence and then to a spiraling out of control situation. Plus, Zimmerman's lawyer is no fool. He will not be asserting an affirmative defence that entails the possibility of a manslaughter conviction despite its carrying the judicial day. Moreover, at least in principle, you as a juryman couldn't vote out manslaughter because the judge's instruction or jury charge will not allow you too.

- basman

April 22, 2012 at 6:47pm

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It's the civilian analogue to police entrapment. If the assault that occasioned the use of deadly force would not have occured were it not for the actions of the assault's "victim" then the victim should forfeit his right to self defense. Otherwise we have a situation where thrill seekers can arm themselves and then go out and behave like threatening jerks and kill anyone who unwittingly rises to their bait.

- AaronW

April 22, 2012 at 6:57pm

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Basman, now I will disagree. Juries will often surprise. A defendant might give what seems to some compelling testimony and the jury might decide, in its wisdom, he's not credible. Sorry, pal, we don't believe you. A jury might decide that the matter at hand is so tragic that a way must by found to give justice. Or not. Count nothing out. Dan

- dbuck1

April 22, 2012 at 6:59pm

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Dan we're not really disagreeing. I totally understand juries will stray from the charge to them. That's why I was careful to say to AaronW, "...at least in principle..." Cheers,

- basman

April 22, 2012 at 7:15pm

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AaronW Your point is belied for one example by the snatch of Florida law I cited above: the justification goes out the window if the the original provocauteur withdraws from his provocation but the original victim of the provocation continues his assaultative counter action regardless.

- basman

April 22, 2012 at 7:20pm

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AaronW, and it's disanalogous to entrapment. In entrapment one is in effect invited manipulatively to participate in illegality, and it's a on the policy ground that the state shouldn't be enticing its citizens into crime only to arrest them (like creating commerce inorder to regulate it--I kid, I kid.) But in the case of broken menace there is no, for one thing, direct flow from the menace to counter action. The very cessation of menace operates for the benefit of the original provoker, the way nothing in the smooth uniinterrupted flow from invitation to criminal participation does in entrapment.

- basman

April 22, 2012 at 7:28pm

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"Once Zimmerman ceased following him and was going back to his car, on his version and if believed, all menace, actual or possible, ended. It was not for Martin at that point, after the menace ended, to take matters into his own hands and go out of his way and assault Zimmerman. That action introduced a new and separable transaction that has to be separately assessed. On your theory the mere act of carrying a gun imposes an intolerable burden of tip toe conduct on anyone legally carrying, a duty not to raise any hackles in any circumstances, even when one's actions are clearly lawful." ___________________ Nope, not at all. The critical fact is that Zimmerman had no legitimate reason to get out of his car and follow Martin. None. He was instructed not to by the police. And certainly not while armed given the obvious risk that a violent clash would result. That is why neighborhood watch are prohibited being armed, so that they do not seek to escalate and perform police duties for which they have not authority. It is not simply the fact that Zimmerman was armed. He provoked the confrontation with his illicit behavior. The notion that the confrontation had "broken off" is purely rhetorical. If Zimmerman were going about his own business, not in fact stalking Martin, just himself walking around, it could be a different matter. But he menaced Martin, who, according to the account of the girlfriend on the phone, plainly understood that he was being followed. That is enough for manslaughter.

- roidubouloi

April 22, 2012 at 7:47pm

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"Do you think McNeil deserved jail time?" I don't know. It's a difficult one to call -- purely subjectively, of course -- as I disagree with the SYG laws, but probably I'd tend to see it pretty much the way the dissenting judge did.

- ironyroad

April 22, 2012 at 8:23pm

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Respectfully, the police preference that Z stop following imposed no legal obligation as such on Zimmerman to stop and even more so, on his account, he stopped following in any event and went his own way. After that Martin went out of his way to come to Zimmerman with the intention of beating him senseless, according to Zimmerman. The cessation or breaking of the menace isn't rhetorical, it's reality. Reality is, that is to say, is that Zimmerman absolutely went his own way. So no way can his account, in its terms, ground manslaughter. Plus as I noted, this is the theory Zimmerman's defence is going forward on. Can you conceive of any competent criminal defence lawyer asserting an affirmative defence that opens his client to, and invites, a manslaughter conviction. Obviously not!

- basman

April 22, 2012 at 8:51pm

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Basman, OK, but keep in mind that the jury has a good deal of authority. It's not, the judge says do this, follow this, whatever, and the jury does it. Juries work their own will on the outcome. (Except for a directed verdict, another matter.) A jury is an organism; it's alive. As I've said several times, there's no way to know at this point how a trial -- if it comes to that -- will play out. In a case like this there are more variables than a pinball machine with the tremors -- or something, sorry, best analogy available this late on a Sunday night. Dan

- dbuck1

April 22, 2012 at 10:23pm

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But there IS a special burden on those carrying firearms (or knives or shovels) not to initiate confrontations that could predictably turn violent. Self-defense does not apply to the aggressor, and your suggestion that Z had backed off and therefore had ceased being the aggressor is purely pedantic. According to their nature, confrontations develop in unpredictable ways. The fact having initiated a confrontation, Z found himself unable to terminate it on his own schedule should be a surprise to no one. Nor should it absolve Z of responsibility for having initiated the confrontation in the first place. Here's another hypothetical: I go in to rob a store, but almost as soon as I pull out my pistol, I have a change of heart. I pocket my weapon and exit the store. I'm halfway down the block when I glance over my shoulder and see the shop-owner outside his door, leveling a shotgun at me. The street is empty. There is nowhere for me to take cover. I turn and shoot the shopkeeper in the chest. Should I be able to claim self defense? Again, of course not. Would the shopkeeper have been in violation of the law had he killed me as I ran away? Possibly so, but that matter is irrelevant to my self-defense claim. Even if the shopkeeper's (or Trayvon Martin's) reaction to the threat posed by me (or George Zimmerman) was excessive and even unlawful, by initiating the confrontation I relinquish any right to self defense.

- AaronW

April 22, 2012 at 11:44pm

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I come to the conversation late, as I often do. Basman, I can’t account for what every MSNBC pundit said, but I think the general thrust of the outrage by MSNBC, Sharpton and others was not the belief that Zimmerman is guilty of murder, but that he was not arrested or charged. There was a sense that SYG and/or racial bias was the reason for that. As to the facts of the case, we are still a long way from knowing what the evidence at trial will be, as dbuck points out. Though you keep making the disclaimer that you are not drawing any factual conclusions, I can’t help getting the sense that you are enamored of Zimmerman’s account. Though you contend to be accepting Zimmerman’s account only for the sake of argument, I find it interesting that you (and Seattle) discount or ignore contradictory indications, such as the account of Martin’s girlfriend, and the opinion of a forensic expert that the cries for help were not Zimmerman’s voice. The trial of Zimmerman will play itself out and will be interesting. But the issues of racial bias among law enforcement institutions and the folly of SYG laws should remain in the forefront. Dhurtado

- NR143296

April 23, 2012 at 1:37am

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Not enamored at all. Just reacting against all rushes to any judgment.

- basman

April 23, 2012 at 9:45am

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Has anyone actually looked at the map of the area that includes where Zimmerman phoned the police from, Martin's home, and where Martin was shot? Given the distance between the phone location and the confrontation location, it seems difficult to imagine that Zimmerman only pursued for a few seconds and then broke off. It's quite a distance and out of the way from where Zimmerman had said he would meet the police.

- miceelf

April 23, 2012 at 10:55am

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NR writes: "Though you contend to be accepting Zimmerman’s account only for the sake of argument, I find it interesting that you (and Seattle) discount or ignore contradictory indications, such as the account of Martin’s girlfriend, and the opinion of a forensic expert that the cries for help were not Zimmerman’s voice." The experts are split on the voice analysis. The girlfriend doesn't refute the key apsects of zimmerman's account. Most I have talked to about this really don't understand how things actually played out. they believe that Martin was begging for his life and was shot. When they learn that actually Martin had time to make it home, and appears to have lingered or doubled back, it tends to make them think a bit more. Aaron writes: "But there IS a special burden on those carrying firearms (or knives or shovels) not to initiate confrontations" Again, this is only in your head. Your rational here says that anyone who has any experience fighting must also exercise this duty because: 1) One punch can kill if properly administered 2) Most of the population is not trained at fighting, and therefore the advantage would most always go to the person with training. Total fantasy. Aaron writes: " I turn and shoot the shopkeeper in the chest. Should I be able to claim self defense? " After committing armed robbery? Seems it'd be a stretch. The shop keeper might also be in serious trouble depending on how far he chased the robber. If he shot within the confines of the store, it's a no brainer. If he shot the robber the next night 3 blocks from the store it's murder. If he chased the robber 2 blocks and then shot him, it's probably also murder. Irony writes: "I don't know. It's a difficult one to call -- purely subjectively, of course -- as I disagree with the SYG laws, but probably I'd tend to see it pretty much the way the dissenting judge did" Yes, for me the McNeil case is a lot tougher. SYG or not, McNeil seems much more the aggressor in this one. But it's strange you'd side with McNeil, and then line up against Zimmerman. I think Zimmerman's case is a lot stronger and grounded in self defense instead of some new law with odd origins. Roid writes: "That is why neighborhood watch are prohibited being armed, so that they do not seek to escalate and perform police duties for which they have not authority." The prosecution has not taken issue with Z's assertion that he was just going to the store. And Z will argue (and the HOA) will argue that Z was not acting as a neighborhood watch capacity. It was just a guy going to the store with a gun in his pocket and a permit to carry. The same thing happens 10's of millions of times per day.

- seattleeng

April 23, 2012 at 11:24am

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Miceelf wrote: "Given the distance between the phone location and the confrontation location, it seems difficult to imagine that Zimmerman only pursued for a few seconds and then broke off." Yes, I've seen the map. I think after running and being instructed not to pursue, Zimmerman switched to a walk and continued in the general direction he saw Martin go. That might be tough for him to explain. And Martin had quite a bit of time to make it home via one of 3 routes. And yet he didn't. He seems to have stuck around, which complicates things for his side of the story. If indeed he did confront/punch Zimmerman after waiting around, then it gets even harder still.

- seattleeng

April 23, 2012 at 11:30am

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"But it's strange you'd side with McNeil, and then line up against Zimmerman." I'm not so much "lining up" as nodding sagely and agreeing with Justice Sears (the dissenter). But some differences strike me as unavoidable: McNeil was coming home because Epps was on his property and wouldn't leave -- Zimmerman was driving around the streets; Epps had threatened McNeil's son -- Martin hadn't had the slightest interaction with Zimmerman (nor had he done anything suspicious apart from, it seems, wear a hoodie); Epps did have a weapon (a knife) on him -- Martin didn't; and one similarity is thought-provoking: And if I read the case record correctly (it was a bit ambiguous) Epps kept coming at McNeil even after McNeil fired a warning shot -- Martin (in Zimmerman's account) followed him after the initial interaction; it's intriguing to note, however, that although the jury seemed to discount that fact in the Epps trial, you think that's a deal-breaker for Z.

- ironyroad

April 23, 2012 at 11:44am

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Irony, yes, I think those facts in isolation would have me side with McNeil, but McNeil taking time to uncase and load the gun, and then telling police they better hurry because he was going to "whip [Epp's] ass" is a massive difference that you have ignored. Those two actions (to me) telegraph a man's plan to kill someone well in advance of the killing. What was he going to whip Epp's ass with? The butt of the gun? Was he going to set the gun down and fight hand to hand? Was he going to put the gun in his wasteband and fight? Or did he want to wave the gun around and take the upper hand against Epps from the gitgo? If McNeil had the loaded gun in his pocket as a matter of routine, and he was surprised by Epps approaching him aggressively with a knife in hand on his property, then I'm a bit more sympathetic to McNeil. But how can you ignore the "whip his ass" comment and the uncasing and loading of the gun?

- seattleeng

April 23, 2012 at 12:10pm

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As far as I understood, seattle, the remark was made during the 911 call when, presumably, he was angry about the Epps guy behaving in a threatening manner (remember, he'd gotten the call from his son) and was planning to "whip his ass" in the normal sense of that term. It generally doesn't mean "kill." I mean, if you are genuinely planning to just shoot someone down, you mostly don't call 911 beforehand and formally announce it by asking the police to hurry. I think you could make the case that the loading of the gun puts McNeil in a worse light than if he had a loaded gun in the car, but one could equally argue that that McNeil wasn't the kind of guy who liked driving around with a loaded gun, but on this occasion was unsure about how violent Epps was going to be. Having a permanently loaded weapon on your belt isn't a virtue, in my view. And again -- your comments make it sound as if it's just me, but that seems to be where the dissenting judge is on it. His comments reflect where I'd probably find myself. I defer to Justice Sears.

- ironyroad

April 23, 2012 at 12:48pm

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But saying you are going to whip ass, and then uncasing and loading a gun...doesn't that mean you intend to whipass with a gun? Yes, he was aware that Epps had pulled (past tense) a knife on his son. Isn't the exact definition of manslaughter? His son was out of immediate danger. He was livid, and he was going to get even. He said so to the police. And then lied to the police. I guess I can see this going bad for McNeil. I cannot get over you don't see any problems with McNeil but you see tons of problems with Zimmerman. Who by all accounts believed he was indeed watching someone that was intent on doing harm to someone in his neighborhood.

- seattleeng

April 23, 2012 at 2:33pm

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Exhibit bazillion, fresh off the AP wires, in support of the idea that when the trial starts, you never know what's going to happen: ====== (AP) GREENSBORO, N.C. -- A judge says a key prosecution witness in the criminal trial of former presidential candidate John Edwards contacted other witnesses in the case to ask about their planned testimony, a possible violation of federal law. U.S. District Court Judge Catherine C. Eagles said Monday that former Edwards aide Andrew Young called the three other witnesses in the last two weeks. Eagles ruled that lawyers for Edwards could mention the improper contact to jurors in opening arguments Monday, but barred using the term "witness tampering" or telling the jury that Young had a one-night stand with one of the other witnesses in 2007. =============== Dan PS. Maybe the threshold for witness-tampering in North Carolina is a two-nite stand.

- dbuck1

April 23, 2012 at 2:39pm

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"I cannot get over you don't see any problems with McNeil but you see tons of problems with Zimmerman." For the third time, one of the judges saw it that way too and his dissent can be read in the link you posted. So it's not just my skewed perspective.

- ironyroad

April 23, 2012 at 3:01pm

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Also, I never said that there were no problems with McNeil. What I said was that that case seemed to my layperson's eyes to be closer (you're on your own property and a guy is coming at you even after you've fired a warning shot) than Zimmerman's to the kind of situation that the drafters of SYG laws might be thinking about as a model, and indeed Judge Sears seemed to be thinking that way too. If you read that as "no problems with McNeil" then we might as well start speaking Mandarin or something as clearly there's a language difficulty here. In the McNeil case, I'd say Epps was the guy who went looking for trouble and found it, to put it bluntly, while in this case it was Zimmerman who went looking for trouble and found it. It's more like a mirror image than a parallel.

- ironyroad

April 23, 2012 at 3:13pm

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I thought the statement, 'I didn't know whether he was armed was damaging" because it differs from the previously floated claim that Zimmerman's head was being bashed and TM had access to MZimmerman's gun and was saying "you're going to die." This is another try at a totally different account. They do not go together. If he doesn't take the stand, maybe he cannot be impeached, but he also cannot put on any version at all claiming he had a reason to kill Trayvon Martin.

- Walpole

April 23, 2012 at 3:16pm

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Irony, I keep asking because citing a judge that agrees with you doesn't reconcile your position wrt Zimmerman. And that is what I'm asking you. Zimmerman was less of an aggressor than McNeil. He was less deliberate. He was less belligerent. He was less angry. He was less of everything. And yet you find Zimmerman at fault and not McNeil. I am fascinated by this inconsistency.

- seattleeng

April 23, 2012 at 3:21pm

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When I was not much older than Martin, I was followed by a suspicious stranger as I walked home from the store -- he was in a car, but creeping very slowly alongside me as I walked along on the sidewalk, staring at me in a manner that was obviously meant to be threatening. I remember clearly feeling I had to evade him without letting him know where I lived. I was afraid going into the house would invite him to follow me into the house or come back at some other time to attack me once we were no longer in the open, and, I was afraid that by going into the house I would be endangering others. To me, it seems obvious that Trayvon, knowing his little brother was waiting for him in the apartment, would have decided to try to defend himself, in the open, from whatever harm Zimmerman's suspicious behavior represented rather than giving him an opportunity to discover where he lived and to perhaps harm others. In other words, I think Martin felt, and in fact, was, cornered by Zimmerman. And although I doubt Zimmerman will be convicted, the fact that he likely will not be held accountable for what was clearly reckless and endangering behavior makes me sick.

- esmense

April 23, 2012 at 5:18pm

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seattle, McNeil wasn't the "aggressor," Epps was. That's the basic distinction that I think was in the dissenting judge's mind. It's also not "a judge," it's a judge on the GA supreme court panel finding in the McNeil case. Whether Zimmerman or Martin was the aggressor not in this case remains -- possibly -- to be proven. I find it equally fascinating that you continually default like a homing pigeon towards the most unconvincing parallels.

- ironyroad

April 23, 2012 at 5:45pm

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Sorry, delete "not" from second para.

- ironyroad

April 23, 2012 at 5:48pm

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On the 911 tapes, when asked how old was Martin, Zimmerman clearly answered "late teens". However, in court, he voluntarily offered a contradicting statement. He claimed that during the confrontation, he thought Martin was only a few years younger than him. Why would he lie about such a minor thing?

- scrubby

April 23, 2012 at 11:51pm

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The 16-year-old girl, who was not identified, said in a phone call recorded by the network that as Trayvon was walking he told her "some man was watching him" so he pulled his hoodie over his head. She told attorneys she then heard the 17-year-old ask "What are you following me for?" Then a man, presumably George Zimmerman, replied: "What are you doing around here?" The girl said Trayvon must have been pushed because his headset fell off and the phone call ended. That account is not consistent with Zimmerman’s claim that he was returning to his vehicle when Martin attacked him. Indeed, it is not plausible that Zimmerman said “what are you doing here,” and then did not wait for an answer but, rather, began returning to his vehicle. I do not claim that evidence to be dispositive, but if you are claiming to be objective, you would not ignore or discount that evidence. I was not aware that there has been more than one analysis of the voice recordings. But even if there were conflicting opinions, why would that justify ignoring the evidence? Dhurtado

- NR143296

April 24, 2012 at 12:50am

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"What is different here is the absence of Sharpton and all the other muckrakers. Nobody put a bounty on Scott's head. Nobody made his family go into hiding." Seattle, there would be no Sharpton if Zimmerman was at least arrested. Against the advice of the lead investigator, Zimmerman was freed, solely on his own word. No tests were done for powder burns or blood splatter. If Martin was your son and Sharpton was the only chance for you to get justice, you would rush to him, too. I know I would. Sharpton should be praised. I think sometimes what he does -- bringing pressure to bear on behalf of the helpless and giving voice to the voiceless, as in this case -- is a great thing. Or would you rather that Martin's death was not investigated? Remember that this case was closed until Sharpton got involved.

- scrubby

April 24, 2012 at 12:53am

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irony writes: "seattle, McNeil wasn't the "aggressor," Epps was" And so your position is that anyone rushing towards you without a weapon in their hand it is OK to shoot, even before they have made any contact? They might have just come to point a finger in your face and yell, or they might have come to punch you. But it doesn't matter to you, shoot first and ask questions later eh? scrubby writes: "On the 911 tapes, when asked how old was Martin, Zimmerman clearly answered "late teens". However, in court, he voluntarily offered a contradicting statement. He claimed that during the confrontation, he thought Martin was only a few years younger than him. If Martin was getting the upper hand, perhaps the fight led him to believe that Martin was older? Lots of guys are in jail right now because they failed to understand an under-18 girl was in fact under 18...And that is when they were up close and personal. I'm not sure a span of a few years here matters. NR writes: "She told attorneys she then heard the 17-year-old ask "What are you following me for?"Then a man, presumably George Zimmerman, replied: "What are you doing around here?"The girl said Trayvon must have been pushed because his headset fell off and the phone call ended.That account is not consistent with Zimmerman’s claim that he was returning to his vehicle when Martin attacked him. Indeed, it is not plausible that Zimmerman said “what are you doing here,” and then did not wait for an answer but, rather, began returning to his vehicle. That M must have been pushed is pure speculation on her part since she wasn't there. But I agree in general, if it can be shown that Z accosted M, then things change a lot. PS. Follow the time line here and explain what you think happened after Martin passed Zimmerman's car until the fight started. This is about the best chronological assessment I've seen. That was a few minutes of time. www.wagist.com/2012/dan-linehan/evidence-that-trayvon-martin-doubled-back Scrubby writes: "No tests were done for powder burns or blood splatter." Powder residue should be on Martin's clothing. If not, then Z is in trouble. If a person has a few layers of clothing on, there might not be any splatter. Scrubby writes: "Sharpton should be praised. I think sometimes what he does" Sharpton is wrong more often that he's right. What happened with Duke Lacrosse and Tawana Brawly was terrible. Add into the mix his racist rants (many of which you can see on youtube) and I'm left with the impression that he's a very nasty person. esmense writes: " I remember clearly feeling I had to evade him without letting him know where I lived. I was afraid going into the house would invite him to follow me into the house or come back at some other time to attack me once we were no longer in the open, and, I was afraid that by going into the house I would be endangering others. " I hear you on this as I've been there too. But there were 2 streets and a path that took Martin home and any number of cut throughs in between. Any of them would have got him there just as quickly. The big question is if he was scared, how come he didn't just run home via one of those 3 paths? See the wagist link to better understand this.

- seattleeng

April 24, 2012 at 2:10am

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"And so your position is . . ." My position is that of Justice Sears, in as much as I can do a layperson's reading of the events.

- ironyroad

April 24, 2012 at 2:21am

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And if Justice Sears' position is that Zimmerman was in the right, you are with Justice Sears on that one too?

- seattleeng

April 24, 2012 at 11:35am

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Let's see about Z. when all the information is in. There may be interesting things yet to be established and, as others here have said, bets are off when the jury gets in on the process.

- ironyroad

April 24, 2012 at 2:06pm

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