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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: April 3, 2012

DOES FLORIDA LAW’S DEFINITION OF PROBABLE CAUSE MANDATE THAT GEORGE ZIMMERMAN CANNOT BE CHARGED FOR THE HOMICIDE OF TRAYVON MARTIN? (Part Two)

Hey…good news! If charged in the shooting death of unarmed Trayvon Martin (“Shot”), George Zimmerman (the “Shooter”) will voluntarily turn himself in! This was announced yesterday by his attorney.

For those of you out there who thought that this was a big step in solving the mind-bending issue of whether or not there was probable cause to arrest the Shooter, it wasn’t. It basically translates to, “Hey, you don’t have to come to get me and embarrass me buy cuffing me and dragging me into court”.

It is basically something I try to do for all of my clients as a Boston criminal lawyer when they are wise enough to retain me before the arrest actually comes. As discussed in the past, it not only helps with the upcoming bail hearing and trial, but it also creates less of a disruption in one’s life than being unexpectedly cuffed at home or at work and dragged into a cruiser.

But I digress.

We left off yesterday wondering whether or not there was probable cause to arrest the Shooter for…anything.

The answer might surprise you!

Attorney Sam’s Take On Probable Cause And What We Know

Yesterday, I discussed how probable cause is treated here in the Commonwealth. Here, it is quite a low standard. Further, “self-defense” is a defense that may be brought by the defendant…at trial. Generally, while the prosecution might be willing to entertain a plea deal for, say, manslaughter in such cases, the fact that this will be the defense seldom prevents actual charges being pressed in the first place.

However, Florida may be alittle different. After all, they do have laws which give greater protection to those who “stand their ground” when attacked as opposed to Massachusetts where one has the duty to try and flee (especially if the incident does not take place in his home). So, let’s check in with some applicable laws from Florida’s statutes…

Chapter 776.032 of Title XLVI in Florida states as follows:

(1) A person who uses force as permitted in … is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
History.—s. 4, ch. 2005-27


Now, remember, this is not proof beyond a reasonable doubt…it is just probable cause. However, Florida clearly gives more protection under that burden on the state than does the Commonwealth, the cradle of liberty. Especially in this case.

So…is there enough reason to believe that the force used was not lawful and that it was not self-defense?

Well, we likely do not know every piece of evidence the local police do. However, we do know a few things.

First of all, there were only two eye witnesses to what took place. That would be the Shooter (alive) and Shot (dead). Of course, this, in itself, is nothing new. This is often the case when law enforcement has a criminal investigation into a homicide.

After all, if somebody is not dead, it is only some kind of assault and battery.

We know that the Shooter claims he fired in self-defense because unarmed Shot attacked him. In the street. Where the Shooter followed him, with a gun, despite the police telling him not to.

There is no question about what was said during the telephone call between the police and the Shooter because it was recorded and has been released.

We know that the Shooter told police that Shot approached him, punched him in the nose and slammed his head against a concrete walkway before he fired in self-defense. The resulting wounds to which the Shooter points, do not seem to be present in the police video taken just after the event. Additionally, the funeral director who was place in charge of Shot’s body says that he saw no signs of a struggle on the teen's body. One would have hoped that a police medical examiner took a gander at the body too…but any result of such a viewing is unknown.

There was at least one “ear witness” who heard the moments prior to through after the shooting. That witness was also on the police, the call was recorded and it was released. That call shows that someone was screaming for help…until there was a gunshot. Then the screaming stopped.

We know that experts who have studied the voice screaming for help have determined that it was not the voice of the Shooter. Further, it is common sense that the voice would likely not have stopped so suddenly after the shot was fired had it been the Shooter.

We also have the testimony of another ear-witness who says she was on the phone with Shot in the minutes preceding the shooting. She tells how Shot was concerned that he was being followed by the Shooter.

Other witnesses indicate that Shot was returning to his father's fiancée’s home at a gated community when the Shooter saw him walking in the rain wearing a hooded sweatshirt and considered him suspicious.

We know that Shot was unarmed.

Gee.

I know that all the facts are not out yet. I know that there could be a viable self-defense argument here which might sway a jury. I even know that this is Florida we are talking about, not Massachusetts.

But not enough probable cause? What do you think?

“Wait a minute, Sam. You forgot a big piece of this. What about the race issue in this case?”

Good question. Many people are claiming that this was a hate crime because Shot was black.

Let’s discuss this…tomorrow.

To view the original stories upon which this blog was based, please go to http://www.huffingtonpost.com/2012/03/31/trayvon-martin-shooting-911-call-screams_n_1394224.html?icid=maing-grid10%7Chtmlws-main-bb%7Cdl7%7Csec1_lnk1%26pLid%3D148255 and http://www.reuters.com/article/2012/04/02/us-usa-florida-shooting-idUSBRE8310UZ20120402