# Why hasn't the Neighborhood Watch shooter been arrested? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [March 12, 2012, 12:53am UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504 "2012-03-12T00:53:26Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 13, 2012, 6:28pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/121 "2012-03-13T18:28:05Z")
> [@Kimmy\_Gibbler](#): > > Reasonable doubt is _reasonable_ doubt. It must accord with the ordinary experience of prudent people. The law also allows cases to be made by direct evidence, circumstantial evidence, or a combination of both. A fact can be proven up beyond a reasonable doubt by circumstantial evidence alone. It is also the province of a jury to assess the credibility of witnesses. The credibility assessment is _ **not** _ one that must be certain beyond a reasonable doubt. > > A jury could very well find Zimmerman not to be a credible reporter of events and reject the testimony that Martin started the fight. They could then also find that he was the aggressor on the basis of his initial pursuit of Martin and the overhearing of Martin calling for help. This would be a legally adequate (that is, not below the reasonable doubt standard) disposition by the jury. I think you’re stretching immensely here. A jury could easily find Zimmerman’s account to lack credibility, but the second part, in which you believe a manslaughter or unnecessary homicide conviction could be obtained based _solely_ on the fact Zimmerman approached Martin is highly unlikely. Maybe with an extremely hostile jury and an inept defense counsel, maybe. Until we know what Zimmerman actually claimed happened and how it lines up with the physical evidence I don’t see anything that would make me vote to convict (and we’re all speculating here on very incomplete information.) From what I’m reading it seems Zimmerman would be able to call the local police chief as a defense witness, since Chief Lee has categorically said “I don’t think he went out to shoot anybody that night.” I don’t disagree that it’s possible a jury could convict, but given how the police have responded to Zimmerman I think it’s extremely unlikely. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [March 13, 2012, 6:29pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/122 "2012-03-13T18:29:42Z")
> [@Martin\_Hyde](#): > > Check the thread again, the police have actually made the call that _they_ were not going to arrest. They listed as their reason “they lacked probable cause for an arrest.” Chief Lee then said that they have sent or are sending the case file for the State’s Attorney for the county in which this event happened. The State’s Attorney has made no charging decision, but the police have. So he might still be charged, but at least at this point the police investigation appears to be concluded sufficiently that they’ve passed it on to the State’s Attorney. I’m not doubting this is the case, but I can’t find the reference upthread. The story in the OP did not say, only that the police declined to comment. > [@](#): > > Local police declined to comment on the case at this time although they did provide ABC News with a copy of the police report. The 911 tapes, say police, will be released next week. The story linked (subsequent to my post) states as follows: > [@](#): > > “Until we can establish probable cause to dispute that, we don’t have the grounds to arrest him,” Lee said. [Emphasis added] Which is not inconsistent with waiting for forensics etc. However, the larger point is this: assuming that the police have made this call and are not waiting, the decision appears odd on its face. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 13, 2012, 6:38pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/123 "2012-03-13T18:38:54Z")
I can see where it was easy to miss, **enomaj** linked to it in post #72 but the post doesn’t actually mention that part of the article so it would be easy to miss. Here is the link: [link](http://www.huffingtonpost.com/2012/03/12/george-zimmerman-trayvon-martin_n_1340358.html?ref=mostpopular) Key passage: > [@](#): > > Protestors jeered Lee during the news conference when he said he does not believe his investigators have enough evidence to charge Zimmerman in the killing, according to local news accounts. I don’t want to reproduce too much of it here, but in that same article it is mentioned that the police expect they will be turning their case over to the State’s Attorney sometime on Tuesday (that’s today, now.) ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 13, 2012, 6:44pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/124 "2012-03-13T18:44:57Z")
> [@Malthus](#): > > Which is not inconsistent with waiting for forensics etc. > > However, the larger point is this: assuming that the police have made this call and are not waiting, the decision appears odd on its face. I agree if the police have decided to pass the case up to the State’s Attorney before they have collected and processed all the evidence that would be strange. I’m not sure how much evidence there is going to be in a case such as this. I’m assuming it’s basically the gun, the autopsy, any forensic evidence at the site of the crime, the statement from Zimmerman, and any statements from people who may have overheard the incident, the 911 tape. I don’t know the time frame on things like forensics, does it seem reasonable they would have all of that wrapped up by now? The shooting happened on 2/26, so about two weeks ago now. That seems fast to me based on the few times I’ve had involvement in criminal matters (not as a suspect!), but it seems at least somewhat likely if the Chief of Police is saying he’s sending his case to the State’s Attorney today that they couldn’t find anything that contradicted Zimmerman’s statement, and that they must have some level of belief in whatever Zimmerman said. I quoted [this](http://www.huffingtonpost.com/2012/03/08/family-of-trayvon-martin-_n_1332756.html) article earlier, which has a bit more information than most articles I’ve seen on this so far. That makes it sound like to me Chief Lee or his men essentially found Zimmerman’s story credible on its face…I don’t know if that also means they’ve already compared it to any physical evidence. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [March 13, 2012, 7:00pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/125 "2012-03-13T19:00:15Z")
I also want to reiterate that I do not believe that Zimmerman has made a prima facie claim of deadly force self-defense, which requires (1) a actual, subjective belief that one is in danger of imminent grievous bodily harm, and (2) an objectively reasonable belief that one is in danger of grievous bodily harm (_i.e._, would an ordinary reasonable person in the circumstances feel so imperilled). Moreover, self-defense is not available to initial aggressors (unless the victim escalated, and not merely parried with proportionate self-defensive force, the aggression). As yet, all we have is that Zimmerman felt he needed to use deadly force in self-defense. We have not been informed of what circumstances existed that occasioned an actual and reasonable belief that grievous bodily harm was imminent. It would be extraordinary for the police to refrain from arresting a confessed shooter on nothing more than his say-so that he was acting in self-defense. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [March 13, 2012, 7:04pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/126 "2012-03-13T19:04:25Z")
> [@Martin\_Hyde](#): > > I can see where it was easy to miss, **enomaj** linked to it in post #72 but the post doesn’t actually mention that part of the article so it would be easy to miss. > > Here is the link: [link](http://www.huffingtonpost.com/2012/03/12/george-zimmerman-trayvon-martin_n_1340358.html?ref=mostpopular) > > Key passage: > > I don’t want to reproduce too much of it here, but in that same article it is mentioned that the police expect they will be turning their case over to the State’s Attorney sometime on Tuesday (that’s today, now.) Thanks! I did indeed overlook the link, assuming it was to pictures. The relevant quote from the police is this: > [@](#): > > “In this case Mr. Zimmerman has made the statement of self defense," Lee said. "Until we can establish probable cause to dispute that, we don’t have the grounds to arrest him.” Which is correct as far as it goes - the cops need probable cause to arrest. What is creating the concern, here in this thread and I assume elsewhere, is that the surrounding circumstances appear, on their face, to create a circumstantial case for probable cause. Consider if the shooter was found over the corpse of a guy who had broken into his home - there, the circumstances plus the guy’s statement (plus whatever other evidence) would be pretty decisive, weighing in favour of self-defence. Here, you have a kid gunned down by a large, armed guy allegedly with a history of authority issues who appears to have gone after the kid (against the 911 dispatcher’s advice) while he was on “patrol” while the kid was on the way back from buying skittles. The natural assumption (which admittedly could be wrong) is that the shooter picked a fight with the kid and then shot him dead, which doesn’t look like any normal definition of self-defence. Under those circumstances it simply seems unreasonable to state that, the fellow having claimed self-defence, the cops simply cannot charge him. Yes it is correct that they need probable cause. Here the circumstances appear on their face to amount to probable cause. That being said, there may be a whole wack of evidence showing why it was reasonable not to charge. We just haven’t seen it yet. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 13, 2012, 7:07pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/127 "2012-03-13T19:07:57Z")
> [@Kimmy\_Gibbler](#): > > I also want to reiterate that I do not believe that Zimmerman has made a prima facie claim of deadly force self-defense, which requires (1) a actual, subjective belief that one is in danger of imminent grievous bodily harm, and (2) an objectively reasonable belief that one is in danger of grievous bodily harm (_i.e._, would an ordinary reasonable person in the circumstances feel so imperilled). Moreover, self-defense is not available to initial aggressors (unless the victim escalated, and not merely parried with proportionate self-defensive force, the aggression). > > As yet, all we have is that Zimmerman felt he needed to use deadly force in self-defense. We have not been informed of what circumstances existed that occasioned an actual and reasonable belief that grievous bodily harm was imminent. It would be extraordinary for the police to refrain from arresting a confessed shooter on nothing more than his say-so that he was acting in self-defense. I think that’s a point that many of us made early on. We don’t actually know what Zimmerman has said to police or what evidence they had. By the way, I’m totally open to the idea the police are racist and predisposed to put more trust in Zimmerman and assume that Trayvon Martin was a violent criminal. That’s not impossible, in general I’m very pro-police officer, but sure, some departments might have a lot of bad eggs in them, that’s entirely possible. It’s entirely possible the police are acting improperly. However, taking the police “at their word” I’m _assuming_ they must have been compelled by Zimmerman’s story and at the very least it must not have contradicted the physical evidence. The police didn’t just say “we lack evidence necessary under murder/manslaughter/unnecessary homicide statutes”, Chief Lee actually went further than that in the article I linked to and even comes off sounding outright supportive of Zimmerman. I sure **hope** that is for some good reason based on his knowledge of the case and of things we do not know about. I don’t want it to sound like I don’t think there is any possibility the police are acting improperly. But it remains worthwhile to mention that if the State has a situation with murky evidence and no strong case to demonstrate Zimmerman was committing an _unjustified_ killing I can see where they may not pursue charges due to their belief they couldn’t sustain a conviction. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [March 13, 2012, 7:12pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/128 "2012-03-13T19:12:33Z")
> [@Malthus](#): > > The relevant quote from the police is this: > > > [@](#): > > > > “In this case Mr. Zimmerman has made the statement of self defense," Lee said. "Until we can establish probable cause to dispute that, we don’t have the grounds to arrest him.” > > Which is correct as far as it goes - the cops need probable cause to arrest. What is creating the concern, here in this thread and I assume elsewhere, is that the surrounding circumstances appear, on their face, to create a circumstantial case for probable cause. The police chief’s statement is very incorrect and is one reason to refrain from being too certain of this department’s competence in handling this case. What must exist is probable cause to believe that the accused has comitted a crime. That does not mean that the police must be able to refute any defenses raised by the accused—that, after all, is what court is for. Moreover, I am quite certain that the Sanford PD has happily arrested other suspects who proclaimed their innocence all without bothering to “establish probable cause to dispute [those claims of innocence.]” One imagines that they even said, “Tell it to the judge.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 13, 2012, 7:52pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/129 "2012-03-13T19:52:13Z")
> [@Kimmy\_Gibbler](#): > > Quite to the contrary, **Bricker** , I find that the article faithfully reproduced all relevant information. Certainly you had to do no further outside research to find out about the expungement. It was right there in the very sentence. It seems, rather, that you’d have preferred less candor, that is, no mention of the expunged offense whatsoever. Accordingly, I think you are more upset that your position is a bit weakened, and I do not accept your characterization that the article is engaging in innuendo. Here are two paragraphs. Both are factually accurate. But I contend one casts doubt on the credibility of Zimmerman, and one does not: Para 1: Lee publicly admitted that officers accepted Zimmerman’s word at the scene that he had no police record. Yet public records showed that Zimmerman was charged with battery against an officer and resisting arrest in 2005, a charge that was later expunged. Para 2: Lee said that officers accepted Zimmerman’s word at the scene that he had no police record. Public records confirmed that although Zimmerman was charged with battery against an officer and resisting arrest in 2005, that charge was later expunged. Do you agree? ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [March 13, 2012, 8:04pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/130 "2012-03-13T20:04:09Z")
> [@Bricker](#): > > Here are two paragraphs. Both are factually accurate. But I contend one casts doubt on the credibility of Zimmerman, and one does not: > > Para 1: > Lee publicly admitted that officers accepted Zimmerman’s word at the scene that he had no police record. Yet public records showed that Zimmerman was charged with battery against an officer and resisting arrest in 2005, a charge that was later expunged. > > Para 2: > Lee said that officers accepted Zimmerman’s word at the scene that he had no police record. Public records confirmed that although Zimmerman was charged with battery against an officer and resisting arrest in 2005, that charge was later expunged. > > Do you agree? This is, of course, not for your benefit or my benefit but for that of those still on the fence. I don’t think the difference between paragraph 1 (the actual paragraph) and paragraph 2 (your desired paragraph) is so striking as to lead to your proposed conclusion of finding the article hopelessly tendentious and therefore disregarding the more relevant and more discomfiting (for Zimmerman’s defense) facts it also reports. But you’re entitled to make your case to our undecided readers as you see fit. Hopefully it involves a bit more than stating you would have written an ABC News article a bit differently. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 13, 2012, 8:17pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/131 "2012-03-13T20:17:56Z")
> [@Kimmy\_Gibbler](#): > > This is, of course, not for your benefit or my benefit but for that of those still on the fence. I don’t think the difference between paragraph 1 (the actual paragraph) and paragraph 2 (your desired paragraph) is so striking as to lead to your proposed conclusion of finding the article hopelessly tendentious and therefore disregarding the more relevant and more discomfiting (for Zimmerman’s defense) facts it also reports. > > But you’re entitled to make your case to our undecided readers as you see fit. Hopefully it involves a bit more than stating you would have written an ABC News article a bit differently. As you say, folks can read and decide on their own. From my perspective, the actual paragraph quite plainly suggests – without actually saying – that Zimmerman was dishonest about his record. The use of the word “admits” to describe Lee’s statement, and the word “yet” to set off the disclosure about the expunged arrest both suggest that there is a difference between what Zimmerman said and the truth. But I’m perfectly happy to simply await developments. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [March 13, 2012, 8:39pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/132 "2012-03-13T20:39:53Z")
> [@Bricker](#): > > Were there wounds from a physical fight on the victim? > > If not, then there is another inference that can be drawn: that the fight was, prior to the gunshot, somewhat one-sided. Really? The absence of wounds on the victim would make you infer a one-sided fight, despite the size differential between them and the fact that Zimmerman was armed? Would you draw the same conclusion if Zimmerman had gone against a 140lb unarmed woman? Be honest. > [@](#): > > It certainly would be evidence. “Compelling?” No. But evidence sufficient to cross the barrier of “preponderance of the evidence?” Or it could be evidence that Zimmerman overpowered the boy with brute force and therefore didn’t need to wound him just to subdue him. If a man grabbed me while I walking down the street, I would claw him to the best of my abilities and his face would be bloody. Amazingly, though, my body would be relatively unscathed; a guy could restrain me with very little effort because he’s so much stronger than me. It is just as reasonable to infer from Zimmerman’s wounds that the kid was afraid for his life and was fighting desperately. If the kid lacks wounds (sans the fatal bullet wounds…just a minor detail, though…yup) that tells me that Zimmerman used the gun as a first resort rather than other less drastic means of defenses. So I still need convincing that we’ve established a “preponderance” here. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [March 13, 2012, 8:43pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/133 "2012-03-13T20:43:41Z")
> [@Kimmy\_Gibbler](#): > > The police chief’s statement is very incorrect and is one reason to refrain from being too certain of this department’s competence in handling this case. > > What must exist is probable cause to believe that the accused has comitted a crime. That does not mean that the police must be able to refute any defenses raised by the accused—that, after all, is what court is for. > > Moreover, I am quite certain that the Sanford PD has happily arrested other suspects who proclaimed their innocence all without bothering to “establish probable cause to dispute [those claims of innocence.]” One imagines that they even said, “Tell it to the judge.” The point is, as I understand it, that shooting someone in self-defence is not a crime. Therefore, if the police must have probable cause, they must have probable cause to believe he did not shoot the kid in self defence. My point is that any reasonable person would assume from the circumstances that they did have such. To take an example - if the kid was found armed and having broken into this guy’s house, and the guy was found bleeding from a gunshot wound while dressed in his PJs, and said “I heard a noise of breaking glass and found the guy in my kitchen - when I yelled at him to get out he shot me and I shot him in self defence”, the cops could be excused for not arresting the guy and charging him with murder because the circumstantial evidence supports his story. They would (unless contradictory evidence turned up) have no probable cause and the police chief’s statement would be exactly appropriate. Because shooting a guy in self-defense isn’t a “crime”. Indeed shooting a guy per se isn’t a “crime”, just a strong indication that a crime has been committed. What you need is the mental element - the guilty concience, ether premeditated to off someone, or losing one’s temper and killing in a rage, or recklessly or negligently even if with no intent to kill. In this case, by contrast, all the circumstantial evidence points the other way, which is exactly why people are freaking out about it - it defies belief that the cops would just take this guy’s word for it, when what appears to be an armed wannabe vigilante kills a random skittles-purchasing kid. Though admittedly skittles are pretty bad. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [March 13, 2012, 9:07pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/134 "2012-03-13T21:07:41Z")
> [@Kimmy\_Gibbler](#): > > Has Zimmerman raised a prima facie self-defense justification? I believe that the uncontradicted narrative is that Zimmerman initiated the contact by leaving his car (against police advice) and pursuing Martin. There is no availability of self-defense when one is the initial aggressor, nor is one entitled to use deadly force in self-defense where there is no danger of grievous bodily harm. Thank you! If Zimmerman is the aggressor then Martin, and only Martin, has a legal right to self defense at that point. Assuming that Zimmerman then discovered that Martin was capable of adequately defending himself, I.E. Zimmerman picked the wrong guy to get into a fist fight with, Zimmerman doesn’t get to escalate to deadly force just to avoid getting beaten up, only a reasonable fear of serious injury or death would allow him to escalate to deadly force. And most importantly here it’s not Zimmerman’s fear of serious injury or death it’s a reasonable person in the same circumstance. IIUC Zimmerman has the burden to prove his actions were reasonable or at least show that he had a honest but unreasonable belief that the actions were necessary to counter the attack (See: [Imperfect Self-defense](http://en.wikipedia.org/wiki/Imperfect_self-defense)). The only burden of proof the state has to overcome is that a reasonable person in the same circumstances would not have been legally entitled to act in the same way, no _beyond a reasonable doubt_ involved. This is because Zimmerman is not claiming innocence of the charge, he’s making an affirmative defense, basically pleading guilty with an explanation, and that puts the burden on Zimmerman. AIUI Even simply brandishing a weapon against an unarmed aggressor can change your status from defender with a legal right to self defense to aggressor without one. Escalation is a really, really, bad idea. CMC fnord! If any of our more legally knowledgeable posters would be willing to grade my post I’d really appreciate it! ---
**Author:** ![Hbns](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hbns](https://boards.straightdope.com/u/Hbns)\ **Post date:** [March 13, 2012, 9:10pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/135 "2012-03-13T21:10:55Z")
> [@you\_with\_the\_face](#): > > I can imagine this too, but my definition of “flimsy evidence” would be hearsay or maybe one fingerprint that is a 45% match to the suspect’s or something like that. Something flimsier than an admission of killing plus no evidence of provocation by the kid in addition to the guy having a prior history of violence. But if they say it’s flimsy, I guess it is flimsy. I think the sticky wicket is the evidence of assault to the neighborhood watch guy and the apparent lack injury, other than the gunshot wound, to the victim. Going back to the reasonable actor proof, it would be pretty hard to get a jury to agree unanimously that somebody getting their ass handed to them that lopsidedly should not fear for their life. I suppose they could arrest the neighborhood watch guy and waterboard the “truth” out of him. One thing I do find interesting in cases these days is how the media plays it. I have seen several articles that run the clearly several years old picture of a cherubic Trayvon and the booking photo of Zimmerman. No matter how neutral the article is, those two pictures slant the story pretty hard one way. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [March 13, 2012, 9:24pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/136 "2012-03-13T21:24:11Z")
> [@crowmanyclouds](#): > > This is because Zimmerman is not claiming innocence of the charge, he’s making an affirmative defense, basically pleading guilty with an explanation, and that puts the burden on Zimmerman. As always, **crowmanyclouds** brings some insight. Like I said before, this is no different than if Zimmerman had claimed insanity. Even if he had put forth this claim, it doesn’t mean the state would been forced to contend against it before determining that probable cause for homocide exists. The absurdity of that should be clear to anyone in this thread. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 13, 2012, 9:27pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/137 "2012-03-13T21:27:05Z")
> [@crowmanyclouds](#): > > Thank you! > > If Zimmerman is the aggressor then Martin, and only Martin, has a legal right to self defense at that point. Assuming that Zimmerman then discovered that Martin was capable of adequately defending himself, I.E. Zimmerman picked the wrong guy to get into a fist fight with, Zimmerman doesn’t get to escalate to deadly force just to avoid getting beaten up, only a reasonable fear of serious injury or death would allow him to escalate to deadly force. And most importantly here it’s not Zimmerman’s fear of serious injury or death it’s a reasonable person in the same circumstance. > > IIUC Zimmerman has the burden to prove his actions were reasonable or at least show that he had a honest but unreasonable belief that the actions were necessary to counter the attack (See: [Imperfect Self-defense](http://en.wikipedia.org/wiki/Imperfect_self-defense)). The only burden of proof the state has to overcome is that a reasonable person in the same circumstances would not have been legally entitled to act in the same way, no _beyond a reasonable doubt_ involved. This is because Zimmerman is not claiming innocence of the charge, he’s making an affirmative defense, basically pleading guilty with an explanation, and that puts the burden on Zimmerman. > > AIUI Even simply brandishing a weapon against an unarmed aggressor can change your status from defender with a legal right to self defense to aggressor without one. Escalation is a really, really, bad idea. > > CMC fnord! > If any of our more legally knowledgeable posters would be willing to grade my post I’d really appreciate it! Your interpretation of what an affirmative defense is directly contradicts the conclusions of several SCOTUS rulings I have linked to and cited in this thread. Most directly, we have a SCOTUS justice who says that a defendant only has to demonstrate self-defense _beyond a preponderance of the evidence_ and that once he has done so the prosecution must **disprove it** beyond a reasonable doubt. The SCOTUS justice even says this is a high bar, to require the prosecution to prove a negative, but that it is a _fundamental part of our legal system_. The burden of proof in a criminal prosecution is **never** on the defendant, people often claim that in an affirmative defense the burden of proof is on the defendant, but that is just simply not the case. In a case of self defense the “burden of production” is on the defense, but once that is satisfied, then just like in any other criminal case, the burden of proof rests with the state. The burden of proof can never be on the defendant, and a quirk in Maine law put the burden of proof on defendants who were exercising an affirmative defense in _Mullaney v. Wilbur_ and Maine law was ruled unconstitutional by the SCOTUS. [Here](http://www.fd.org/pdf_lib/Beneman_Affirmative_Defenses_materials.pdf) is an informative PDF on this matter on the Office of Defender Services (Federal) website. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [March 13, 2012, 9:31pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/138 "2012-03-13T21:31:29Z")
[QUOTE=Hbns] I think the sticky wicket is the evidence of assault to the neighborhood watch guy and the apparent lack injury, other than the gunshot wound, to the victim. Going back to the reasonable actor proof, it would be pretty hard to get a jury to agree unanimously that somebody getting their ass handed to them that lopsidedly should not fear for their life. [/quote] I’m going to post what I said to **Bricker** earlier, because I strenuously disagree that the presence or absence of wounds on Martin’s body means anything. > [@ywtf](#): > > Or [the absence of wounds on Martin] could be evidence that Zimmerman overpowered the boy with brute force and therefore didn’t need to wound him just to subdue him. If a man grabbed me while I walking down the street, I would claw him to the best of my abilities and his face would be bloody. Amazingly, though, my body would be relatively unscathed; a guy could restrain me with very little effort because he’s so much stronger than me. > > It is just as reasonable to infer from Zimmerman’s wounds that the kid was afraid for his life and was fighting desperately. If the kid lacks wounds (sans the fatal bullet wounds…just a minor detail, though…yup) that tells me that Zimmerman used the gun as a first resort rather than other less drastic means of defenses. So I still need convincing that we’ve established a “preponderance” here. In other words, this is only a “sticky wicket” if you completely overlook the fact the victim was significantly smaller than Zimmer and was not the one who initiated conflict. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [March 13, 2012, 9:32pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/139 "2012-03-13T21:32:07Z")
> [@you\_with\_the\_face](#): > > As always, **crowmanyclouds** brings some insight. > > Like I said before, this is no different than if Zimmerman had claimed insanity. Even if he had put forth this claim, it doesn’t mean the state would been forced to contend against it before determining that probable cause for homocide exists. The absurdity of that should be clear to anyone in this thread. Zimmerman is not actually admitting guilt. Under Florida law an element of the charge of manslaughter is that it is an unjustified killing, an element of the charge of unnecessary homicide is that it is an unnecessary killing. Zimmerman most likely (and we can only presume based on statements by Chief Lee) stated to the police that he acted in self defense. So his explanation to police is that the killing was neither unjustified or unnecessary. Something I’ve noticed both you and **crowmanyclouds** keep doing is saying a bunch of stuff that basically equates to “but it’s _obvious_ Zimmerman was just being a murdering asshole” you seem obtuse to the point that such an argument doesn’t fly in our legal system. **Kimmy\_Gibbbler** I think made some good points about how you could make the _argument_ Zimmerman was the aggressor, but again, that’d require in my opinion a uniformly receptive jury as it is essentially a case of “he-said-she-said” except in this case it’s just “he said-he-says-nothing.” Yes, if Zimmerman is a murdering bastard he is immensely benefiting from the fact that his victim cannot tell his side of the story. You guys act like because of this fact our system is set up so that anytime you kill someone you are “presumed to have committed murder” and it is up to you “prove beyond a reasonable doubt” that your killing was justified. That is just not how it works. _If_ this goes to trial, the prosecution is going to have to address the self-defense argument with various arguments designed to weaken the claim, and Zimmerman is going to make his arguments. If it’s a push, the win doesn’t go to the prosecution. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [March 13, 2012, 9:35pm UTC](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504/140 "2012-03-13T21:35:23Z")
> [@Martin\_Hyde](#): > > Your interpretation of what an affirmative defense is directly contradicts the conclusions of several SCOTUS rulings I have linked to and cited in this thread. If Zimmerman had claimed insanity, do you think the cops would be faced with disproving this before determining probable cause for homocide existed? Just curious. [Previous page](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504.md?page=6) [Next page](https://boards.straightdope.com/t/why-hasnt-the-neighborhood-watch-shooter-been-arrested/615504.md?page=8)