Why hasn't the Neighborhood Watch shooter been arrested?

In My Humble Opinion
381

I don’t think based on what we know now there is enough to “overcome” the claim of self-defense beyond a reasonable doubt. I think there is certainly enough to charge (although my reading of the Florida statute seemed to suggest premeditation and willful malice were parts of the murder statute so I do think manslaughter would be much more likely an appropriate charge, I’ll reread the Florida statute at some point), and I think there is enough if the prosecutor lays it out the jury will be left with a hard decision. I wouldn’t want to bet on the outcome though, I think it’d be a close call.

If I was his defense attorney my explanation for the actions of Zimmerman would basically be that he was simply following Trayvon Martin because he did not want him to get away. That Trayvon observed Zimmerman following him and became agitated at being followed and that Trayvon initiated a fight, beat Zimmerman to the ground, and Zimmerman (after yelling for help and receiving none) used his gun in self defense.

I think the fact that Zimmerman could have stayed in his car will help the prosecution. I think the fact that you can’t prove any motive for Trayvon attacking Zimmerman will help the prosecution.

I think a lot of things will help the prosecution, really. But I do think the defense could put together a decent narrative as well. I said earlier it’d be a hard decision, but the more I think about it I just don’t think I could really decide. It’s too important a matter to decide based on “what we know right now”, I’d want the full facts that the police have. If Zimmerman fired at Trayvon from a prone position, and the bullet wound shows evidence it came into Trayvon’s chest from below, that would help Zimmerman’s narrative. If we know the precise nature of Zimmerman’s injuries that could help Zimmerman. If we have forensic evidence on Trayvon’s body showing abrasions on his knuckles consistent with punching someone, that would help Zimmerman.

I do think we know that the conflict never would have happened if not for Zimmerman, but that isn’t the same as saying Zimmerman is guilty of manslaughter. If I was Zimmerman and I started following someone to basically monitor their activities, that might piss them off. Probably justifiably (who likes neighborhood watch busy bodies, I certainly don’t), and some people might be prone to getting confrontational over it. If I’m doing something legal (following someone to monitor their activities) I do not think that meets the legal requirement of “provocation”, so if I was Zimmerman and just doing that, and Martin beat me up and I didn’t shoot him and Martin just fled the scene–I think Martin would be charged with assault and convicted. Just because Zimmerman put himself in a stupid situation doesn’t in itself prove provocation, nor does it necessarily remove the credibility of a self-defense claim.

Anyway, again, just speculating. We’re speculating now on what’s available through the news, the news is inherently bad at reporting on the important particulars in criminal cases. That is something I’ve learned through years of reading the news and following criminal cases. Reporters don’t always understand what is important and will emphasize things that are not or fail to report on minor details that aren’t material to them but which might show an import legal element of the case. Just based on the “news clippings” I’d say I’m 60% sure Zimmerman is at wrong and I think it’d be appropriate for him to go away for manslaughter. Which means I feel it more likely than not that is what should happen. But that’s just my feeling based on “news clippings”, and I’ll never tie myself to a real opinion on a criminal case when we don’t have all the facts to go on. It might be fun to discuss but it’s essentially masturbatory speculation.

382

Yeah, but a small town police chief probably doesn’t have any PR staff working for him. I definitely think the police have bungled this from a PR perspective.

If I was in their shoes with this inflammatory case, and the investigator genuinely wasn’t sure if he should charge, and I wasn’t sure if we should charge, I would pass it on to the State’s Attorney and like you said just say in a press conference that the case is awaiting a final determination by the State’s Attorney.

I wouldn’t come out so definitively in support of the suspect, even if I was in support of the suspect and even if I felt his self defense claim was credible and he had demonstrated it was credible. I’d keep my opinion on how credible the suspect’s explanation was to myself, and would pass it on to the State’s Attorney with my opinions included, but that would be for his eyes not the press.

As to why I hadn’t made an arrest, I’d simply explain we were still conducting our investigation and working with the State’s Attorney to come to a final determination. Sometimes under pressure you feel the urge to say “anything” to stop people that are complaining, I think non-commital answers, while not doing anything to allay the concerns of many parties in this case, would at least keep the department out of the potential political shit storm they could get hit with if this thing ends up going to a criminal trial. (At that point your department now publicly looks incompetent because the State’s Attorney is publicly overruling your initial decision.)

383

Both I and Kimmy_Gibler have stated that self-defense claims do not shift the burden of proof. A self defense claim does create a burden of production on the defense that is not present in a regular defense in which the defense simply tries to assert the State lacks sufficient evidence that the defendant committed the crime. Typically the “burden of production” is that you can establish a claim beyond a preponderance of the evidence. The problem with your “concern” that all you have to do is say “self-defense” and you get off, is that’s only true if there is no physical evidence, no circumstantial evidence, no testimony from people who may have heard the incident or who arrived on the scene of the incident and etc.

Imagine a different scenario where I’m jogging through a very, very remote forest. I know a certain person jogs along a trail here occasionally, I do not know this man personally whatsoever. However, I know that he has a criminal history and has served time for assault and robbery in the past. I’ve decided to murder this man just because. I start jogging some 20 minutes after he does, and eventually I lie in wait for him deep in the forest. When he’s coming back, towards me, I block his path and antagonize him. I call him names, shove him and etc. He eventually attacks me and I take some blows. I then draw a gun and shoot him dead, just as I had planned. I then call the relevant law enforcement and claim self defense. That’s a vastly different scenario than the Zimmerman/Martin case, but in that scenario do you not see that I could just essentially shoot someone (in theory) and claim self defense and get off? How would a prosecutor possibly hope to convict me in my contrived scenario here? (Assume the investigation finds no evidence that I had been previously looking up information about this guy’s history or anything of that nature, and assume nothing in the physical evidence betrays my true intentions.)

Now, the reason this isn’t a “murder loophole” is because my scenario is extremely contrived and fanciful. A lot of stuff could go wrong in the above scenario. I could get beat so viciously I have no ability to draw my weapon. I could pull the gun and the guy takes it from me and kills me. I could shoot him but he is able to run away and report me to police. I could slip up in my story, I could leave a trail somehow that shows I had been planning this etc etc etc.

On top of all that, if I was just some pleasure killer and was able to get someone way out in the woods by themselves it makes a lot more sense to just kill him and leave, versus kill him, admit to the homicide while trying to create a false air tight case of self defense.

384

Right, and I’ve always maintained the police could be acting incompetently or improperly in addition to the other possibilities I’ve talked about. It’s always possible the police are incompetent or misbehaving.

And of course more information about this case has come out as we have discussed the thread. My opinion of the “news evidence” is that it’s become worse for Zimmerman as time has gone on, not better. That definitely affects my “uninformed opinion” on Zimmerman personally. It doesn’t change my opinion on the general principles involved with a decision to charge versus not charge. Nor does it change my overall opinion that without a full finding of fact we really won’t know why Zimmerman wasn’t arrested initially.

385

I almost didn’t want to say anything about her interview because I feel I’m already being described as a “Zimmerman supporter” when I am anything but.

However, random witnesses who report stuff to the press and claim the police didn’t do what they should have done aren’t intrinsically believable to me. It’s possible that Cutcher has decided to change her “recollection” of the events based on things she has learned about the case that have thus caused her to reinterpret things.

Some people are also intrinsically unreliable. Some people may feel the police didn’t think their precious eyewitness account was very important (because it wasn’t) so in a pique of anger they go off to the press to get some more attention by dramatically altering their eyewitness account.

Again, I’m just speculating on possible misbehavior. I’ve also speculated the police may have acted improperly or incompetently as well. I’m open to anyone being improper or incompetent at any time and any place. That’s why I like to avoid jumping on each new juicy piece of news as though it is a case-shifting piece of given truth.

386

What I find curious is that the police keep saying the witness’ TV statement doesn’t fit with her official testimony, but never say a word about what said testimony actually contains. Does it serve some public good to continue to be so vague about what they know?

Unfortunately, in the last sentence of her statement, the witness makes the same mistake many people in this thread are making when she asks why Zimmerman doesn’t have to prove his claim of self defense. However, she’s been living in the neighborhood for three months and claims she doesn’t even know Zimmerman - what incentive would she have to suddenly change her testimony and possibly perjure herself?

387

There was a similar controversial case in Houston some years back, a neighbor saw two burglers leaving his neighbors house and called 911 and confronted them with a gun and had them lay on the ground at gunpoint. At some point they started rising or approaching the man(or so he claimed) and he shot them and killed them.

No charges were filed and he was cleared by the grand jury, some claimed racism to be involved as the shooter was white and both burglers were not.

388

As I recall, we had a thread at the time about Mr Horn, with similar reactions about the law from some posters. At least one declared that Texas law allowing deadly force under those circumstances was simply unconstitutional – apparently synonymous with “I don’t like it,” since I don’t recall any mention of just what part of the constitution was supposedly offended.

389

I am assuming if he was cuffed, he went by show of authority and not voluntarily, therefore, it was an ARREST, that is straight from the United States Supreme Court.
There is no such thing in the United States as taking a person in for questioning/investigative detention absent probable cause, that violates the 4th AM. Of course, again, I am not refering to a voluntary go in.

390

The articles say Martin was found face down. I wonder if he was shot in the front or back.

391

In Ohio, if a claim of self defense is raised, the burden of proof shifts to the defendant to prove it by a preponderance of the evidence; my source;

Dixon v. United States (2006), 126 S.Ct. 2437 – Jury instructions requiring the defendant to establish an affirmative defense by a preponderance of the evidence do not run afoul of the Due Process Clause of the Fourteenth Amendment. Federal defendant claiming duress was denied an instruction placing a burden to disprove on the government.

http://www.opd.ohio.gov/RC_Casebook/affirmative_defenses_in_general.htm

392

Meant to post this one instead of the above cited;
Martin v. Ohio

(1987), 480 U.S. 228 – It is not a violation of due process for Ohio to place the burden of proving self defense, by a preponderance of the evidence, upon the accused.

393

I think the police are right to not release her testimony. I think the problem the police have is they’ve released anything. I think they should have, all along, not given their opinion on the case but instead said they were working with the State’s Attorney to come to a decision and the SA’s final decision would be released when the State’s Attorney was ready to release it.

394

Same phrasing for what I’ve said.

The burden of proof is always on the prosecutor. What you’re actually calling “burden of proving self defense” is typically called the “burden of production.”

The prosecution has to prove their case, whatever their case may be, beyond a reasonable doubt. If the case is a “whodunit” they have to prove beyond a reasonable doubt that the defendant did it.

If the case is a “he did it but says it was self defense/insanity/crime of passion” then there is a burden of production requirement on the defense in which they have to demonstrate beyond a preponderance of the evidence that the act was self defense.

If that burden is met, the prosecutor will need to disprove it beyond a reasonable doubt. But as an earlier poster said, prosecutors do not have to refute a defense that is not raised, and if the defense raises an affirmative defense that is weak the prosecutor can attack the credibility of the defense to convince jurors it is not credible. However, by defeating the affirmative defense the prosecutor still has to prove the actual case beyond a reasonable doubt. (The reason Maine’s jury instructions got them in trouble, I believe, is because the judge said if the prosecutor could show the self defense claim wasn’t credible then the jury had to presume the defendant was guilty or murder instead of manslaughter, which violated his due process rights because it unconstitutionally shifted the burden of proof onto him.)

395

No, I don’t see it that way. If you read the Martin case I cited, the dissent argues the majority sidesteps the Maine case you cite, so, they are different.

Burden of production is simply an assertion of a defense. In Ohio, if you have an Alibi as a defense, you must assert it in a timely fashion. Although an Alibi is NOT an AD here, one still has to assert it.

Yes, but they do not have to disprove an AD, the defendant is required to prove it, so we differ in our legal interpretations of “burden of production” and “burden of proving self defense”.

396

This lawyer calls the “burden of production” as simply “by a preponderance” or " clear and convincing", or DEGREE of proof as I understand it, and ohio demands a defendant prove self defense by a preponderance.

ii. Burden of Production
The level of evidence required to generate an affirmative defense, often called the
“burden of production” varies with the defense. For some defenses it is by a
“preponderance,” (entrapment, Jacobson v. U.S., 112 S.Ct. 1535 (1992) while other
defenses require “clear and convincing evidence” (normally a statutory

http://www.fd.org/pdf_lib/Beneman_Affirmative_Defenses_materials.pdf

397

I think from this paragraph I understand now what you are trying to say, equating “burden/degree of proof” with “burden of production”, okay I go along with that.

398

There are two concepts being tossed around in this thread: disproving self-defense and proving that a homicide took place.

I can’t wrap my head around how a prosecutor is supposed to disprove self-defense, unless this phrase is being treated interchangeablely with “proving a homicide”. Otherwise, it’s like proving a negative. How do you show prove that someone didn’t commit a certain act?

Simply requiring that the State prove a homicide makes more sense to me. To go back to what the police said:

Is it appropriate for the cops to base probable cause on how easily they are able to disprove self-defense (i.e., prove a negative)? Shouldn’t they first and foremost base probable cause on evidence of a homicide, and then worry about “disproving self-defense” after charges have been brought? I’m not asking this rhetorically.

Another way of asking my question is how much should the prosecutor’s job change just because the defendant claims self-defense? If the State always has to prove homicide beyond a reasonable shadow of a doubt, I don’t see why Zimmerman’s claim changes anything.

399

That was a state-sanctioned execution, but the similarity ends there. There is big difference between walking home (too slowly, apparently) from a trip to the store and two grown men committing felony breaking-and-entering.

400

I remember a concealed weapon case here that went to the 6th circuit.

IIRC, the person was a courier for a bank/jewelry store and the police who had it in for him, I think it was a 1st AM retaliation civil suit, stopped him and arrested him for possession of a conceaeld weapon. An Affirmative defense was, if charged, that the person was carrying it for a legitimate business reason.

The 6th ruled, IIRC, that if the police knew his AD was indeed valid, the PC to arrest vanished?

Along the same lines of reasoning in the FL case I suppose, FL law on PC unknown here, but a Homicide is quite different from a concealed weapon charge.