Probable Cause Affidavit in George Zimmerman Case Woefully Inadequate

April 13, 2012

It's been over a month since George Zimmerman shot and killed Trayvon Martin, an unarmed 17 year old child. State Attorney Angela Corey has been on the case since March 23, 2012, when Governor Rick Scott appointed her to oversee the criminal investigation into the shooting. After weeks of gathering evidence, speaking to witnesses, and evaluating the case, State Attorney Corey decided to charge George Zimmerman with Second Degree Murder. In a case that has captivated a nation and threatened to open the seams of racial animosity, State Attorney Corey filed a Probable Cause Affidavit that is, in a word, a flop.

The standard for Probable Cause is extremely low. Probable Cause for arrest exists where the facts and circumstances known to the arresting officers are sufficient to cause a reasonably cautious person to believe that the suspect was guilty of committing a crime. The standard of weighing the evidence for probable cause is far lower than the standard of weighing evidence required for a conviction beyond a reasonable doubt.

At a minimum, a Probable Cause Affidavit must state facts establishing that a defendant has committed each of the elements of the charged crime. Thus, an affidavit in support of Second Degree Murder must state facts establishing that 1) the victim is dead; 2) the victim's death was caused by the criminal act of the defendant; and 3) the killing was accomplished through an act "imminently dangerous to another and demonstrating a depraved mind." This last element requires an act that: (a) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (b) is done from ill will, hatred, spite, or an evil intent; and (c) is of such a nature that the act itself indicates an indifference to human life.

The Probable Cause Affidavit in the George Zimmerman case doesn't come close to these requirements. Alan Dershowitz, the esteemed law professor from Harvard, probably puts it best:

Let's break down where the Probable Cause Affidavit goes wrong. First, the affidavit makes assertions without providing a basis for the assertions. For instance, the Affidavit states: "Zimmerman confronted Martin and a struggle ensued." However, the affidavit doesn't explain the basis for the conclusion that "Zimmerman confronted Martin." Did a witness say they saw Zimmerman confront Martin? Did Zimmerman admit to confronting Martin? On what basis does the investigating officer swear under oath that he has reason to believe that Zimmerman confronted Martin?

Secondly, the affidavit does not even pretend to state a fact establishing that the shooting was committed with "ill will, hatred, spite, or evil intent." At most, the affidavit claims that Zimmerman said the words "these f------ punks" at some point prior to the shooting. Is the prosecution basing its murder charge on the phrase "f------ punks?"
Without even a single sentence of the affidavit claiming that Zimmerman pulled the trigger with "ill will, hatred, spite, or evil intent," it is hard to imagine how the prosecution, in good faith, can file charges for Second Degree Murder.

Lastly, and perhaps most importantly, the affidavit omits material evidence, as well as misstates a known fact. For instance, the affidavit claims that a police dispatcher "instructed" Zimmerman not to follow Martin. However, in the recorded phone conversation, the police dispatcher merely tells Zimmerman: "we don't need you to do that." While this may seem like a minor discrepancy, it is clearly inaccurate to state that the dispatcher "instructed" Zimmerman not to follow Martin. At a minimum, this misstatement of fact evinces a disregard for accuracy. What's worse, the affidavit never makes mention of the 911 caller, who claimed that (1) Zimmerman yelled for help; and (2) that Martin as on top of Zimmerman, "beating up" on Zimmerman. While the affidavit claims that Zimmerman "admitted [to] shooting Martin," the affidavit omits that Zimmerman claimed to have shot Martin in self-defense.

These omissions potentially render the Probable Cause Affidavit legally insufficient, and entitle Zimmerman to an evidentiary hearing on the sufficiency of probable cause. As the Florida Supreme Court held in Johnson v. State, 660 So. 2d 648 (Fla. 1995), if omitted material is added to an affidavit and thus defeats probable cause; and if the omission resulted from intentional or reckless police conduct with the intent to deceive, then a defendant is entitled to an evidentiary hearing.

The woefully inadequate Probable Cause Affidavit indicates that the prosecution is skating on thin ice. Manslaughter charges would be far more appropriate.