South Florida Criminal Lawyers Blog

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.

Now that prosecutors have brought charges against George Zimmerman, you probably think that a jury is going to hear the facts and decide the case. Think again. Under Florida's "Stand Your Ground" law, if George Zimmerman can convince a judge that he acted justifiably, he is entitled to immunity from prosecution. That means no jury; no conviction; no jail. Think of it as a big "Get Out of Jail Free" card. It is worth repeating: Florida's "Stand Your Ground" law does not just provide an affirmative defense; it provides immunity. The distinction is extremely significant.

For instance, just last month, a Florida judge dismissed Second Degree Murder charges in the killing of Pedro Roteta, an unarmed 26 year old man. The defendant, Greyston Garcia, allegedly saw Roteta steal a radio from Garcia's truck. Unlike George Zimmerman, Greyston Garcia didn't call the police before running after Pedro Roteta. Instead, Garcia grabbed a large knife and chased Roteta for at least a block. Upon catching up with Roteta, Garcia proceeded to stab Roteta to death. After the brutal killing, Garcia took Roteta's bag of stolen radios and allegedly pawned two of them; he also hid the knife and never called 911 to report the incident. Nevertheless, thanks to Florida's "Stand Your Ground" immunity clause, Greyston Garcia never faced a jury. Instead, Garcia filed a Motion to Dismiss and testified that Roteta swung a bag of stolen radios at his head. Fearing for his life, Garcia claims that he stood his ground--and stabbed Roteta to death.

That's right: Garcia ran down and stabbed an unarmed man to death; pawned the items taken from the dead man; and hid the knife from police. Yet, Garcia never stood trial or faced a jury. How is that possible? Florida's "Stand Your Ground" immunity clause.

Under F.S. 776.032, a person is "immune from criminal prosecution and civil action," if a person justifiably uses deadly force. This is an extraordinarily important aspect of the law, because immunity provides a greater level of protection than an affirmative defense. In the case of an affirmative defense, the accused must go to trial and convince a jury that he acted justifiably. With immunity, the case will never get to a jury in the first place. In order to win immunity, the accused need only convince a judge, by a preponderance of the evidence, that the killing was justified.

In order to show that the killing was justified, the accused must prove that: 1) the defendant was not otherwise engaged in unlawful activity; 2) the defendant was at a place where he had a right to be; 3) the defendant was attacked; and 4) the defendant reasonably believed that he was about to suffer death or great bodily injury. However, if the prosecution can show that the defendant "provoked" the incident, the Defendant loses his right to claim justifiable use of force. From what is publicly known about the evidence in the case, George Zimmerman has a real chance of winning a dismissal. Here's why:

First, George Zimmerman need only convince the judge by a preponderance of the evidence. The preponderance of the evidence standard is the lowest burden in criminal law. Zimmerman need only convince the judge that it is more likely than not that he acted justifiably. When compared with the State's burden at trial, which is to convince six individual jurors that Zimmerman committed the crime beyond and to the exclusion of every reasonable doubt, it becomes obvious that Zimmerman's burden is significantly lower than that of the prosecution.

Second, the lack of eye-witnesses to the incident provides the State with very little evidence to contradict Zimmerman's claims. From what is publicly known about the evidence, the State does not have an eye-witness that can testify that Zimmerman attacked Martin; the State does not have an eye-witness that can testify that Zimmerman didn't walk back to his car; the State doesn't have an eye-witness that can testify that Zimmerman shot Martin while Martin was helpless; the State simply doesn't have an eye-witness to the shooting itself.

Admittedly, the contents of the Medical Examiner's report have not yet been made public. If the Medical Examiner's report indicates that Trayvon Martin was shot from a distance, or shot in the back, then Zimmerman's chances of winning a dismissal decrease exponentially. However, considering the State's woefully inadequate Probable Cause Affidavit, in which the State made no indication that the Medical Examiner's report contradicts Zimmerman's claims, it is unlikely that the Medical Examiner's report will do much to aid the prosecution.

Zimmerman, however, has evidence to corroborate his claims. At least one witness has stated publicly that Martin was "beating up" Zimmerman. The same witness claims that Zimmerman was calling for help. Zimmerman received care from EMT's at the scene, who treated Zimmerman for a bloody nose and for an injury to the back of his head. Video surveillance from the night in question confirms that Zimmerman suffered injuries to the back of his head. In light of Zimmerman's low burden of proof, these corroborating pieces of evidence can prove essential in winning dismissal.

Thus, when looking at the elements that Zimmerman must establish to prove he acted justifiably, it seems reasonably certain that Zimmerman can prove by a preponderance of the evidence that: 1) he was not otherwise engaged in unlawful activity; 2) he was at a place where he had a right to be; 3) he was attacked; and 4) he reasonably feared he would lose his life or suffer great bodily injury. The State has never alleged--nor could they--that Zimmerman's following of Trayvon Martin was an unlawful activity; or that it placed Zimmerman at a location where Zimmerman had no right to be. Similarly, as already stated, the State does not seem to have an eye-witness to the initial physical confrontation between Zimmerman and Martin. Therefore, it will be extremely difficult for the State to contradict Zimmerman's claim that Martin attacked him and bashed his head into the concrete, creating for Zimmerman a well-founded fear of great bodily injury.

This leaves the State with one "ace in the hole:" the claim that Zimmerman "provoked" the incident. However, the "provocation" theory is shaky, at best. F.S. 776.041 provides that the "Stand Your Ground" law is not available to a person who: "Initially provokes the use of force against himself or herself." However, there are two exceptions, both of which favor George Zimmerman.

First, even if Zimmerman "provoked" the incident, he may still justifiably use deadly force, if: "Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant." According to Zimmerman and at least one witness, Trayvon Martin was on top of Zimmerman. What is more, Zimmerman claims that Martin bashed his head on the concrete, which caused Zimmerman to fear death or great bodily harm. If the State cannot contradict this version of events, Zimmerman likely can establish that he "exhausted every reasonable means to escape," (he claims he was pinned to the ground), and he reasonably feared Martin's use of force would "likely cause death or great bodily harm."

Second, it is far from clear that following Trayvon Martin while speaking with the police constitutes "provocation." The second exception to "provocation" states that if the provocateur "In good faith...withdraws from physical contact" and communicates his desire to "withdraw from physical contact," but the other party "continues or resumes the use of force," then the provocateur may rely on the "Stand Your Ground" law. What is important to note, is that F.S. 776.041(2)(b) presumes that the "provocation" includes "physical contact." However, based on the evidence that is public thus far, there is no evidence that Zimmerman initiated "physical contact." What is more, there is no precedent in Florida law indicating that conduct short of "physical contact" provides justification for the use of force, or amounts to "provocation."

Make no mistake: George Zimmerman has a real chance of avoiding a jury. All he has to do is convince a judge, by a preponderance of the evidence, that he acted in justifiable self-defense.

Paul Merhige pled guilty as charged in the Thanksgiving Day Massacre case, receiving seven consecutive life sentences and avoiding the possibility of execution. While some of the family members of Paul Merhige's victims supported the plea deal, James Sitton, the father of six-year-old Makayla Sitton, the youngest of the victims, expressed outrage over the plea.

There is little doubt that prosecutors involved in the case thoroughly debated, contemplated, and struggled with the prospect of entering into a plea deal with Paul Merhige. Indeed, I have worked beside the prosecutors handling this case, and know first-hand of their tireless dedication to secure justice for the victims of Paul Merhige's brutality. From a prosecution perspective, there are times in which pleading a case to a sentence less than the maximum is the most effective course of action toward achieving justice. In a Capital First Degree Murder trial, the prosecution will not only evaluate the likelihood of achieving a guilty verdict, but will also evaluate the likelihood of achieving a death sentence.

Make no mistake, the chance of Paul Merhige winning an acquittal at trial was extremely low. As previously reported, the defense at trial was going to hinge on a theory of insanity. In the State of Florida, a person is legally insane if: (1) the person had a mental infirmity, disease, or defect; and (2) because of the infirmity, disease, or defect, the person (a) did not know what he/she was doing or its consequences, or (b) although the person knew what he/she was doing and its consequences, the person did not know it was wrong. What is more, under Florida law, all persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

According to earlier reports of the case, Paul Merhige has a long history of mental illness and instability. Thus, the defense would likely have had little difficulty establishing the first prong of the insanity defense. However, the second prong would have proven exceptionally difficult. The State would have presented evidence of Paul Merhige's planning, preparation, and deliberation, all of which establish that Paul Merhige knew exactly what he was doing and the consequences of what he was doing. Furthermore, the State would have presented evidence that Paul Merhige, in an attempt to escape capture, fled the jurisdiction and hid out in a motel in the Florida Keys, illustrating that Paul Merhige knew that what he had done was wrong.

However, Capital First Degree Murder trials are a two-part process. Phase One of the Paul Merhige trial, also referred to as the guilt-phase, would likely have taken weeks. If, as is likely, the jury convicted Paul Merhige, the trial would enter Phase Two, also referred to as the sentencing-phase. During Phase Two, the State would attempt to persuade the jury to recommend a death sentence.

Arguments during Phase Two are framed by Florida Statute 921.141, which provides statutory aggravators and mitigators for the jury's consideration. In the case of Paul Merhige, both the State and the defense would have arguments that numerous aggravators and mitigators apply. In aggravation, the jury could find that Merhige was previously convicted of another capital felony or of a felony involving the use of violence; the defendant knowingly created a great risk of death to many persons; the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification; and the victim was less than 12 years of age. In mitigation, the jury could find that the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; and the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.

In the final analysis, a full trial would not have necessarily resulted in a death sentence. Even if the jury were to return a recommendation of death and the judge was willing to impose the recommendation, Paul Merhige would have appealed the sentence, dragging out litigation for years. Due to Paul Merhige's significant mental illness, it is more likely than not that a death sentence would not stand up to judicial review.