Trayvon Martin's Killer Was Looking for Trouble—and Found It

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Examining the details and unanswered questions that will come to light when the case goes to court next month.  

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The neighborhood where 17-year-old Trayvon Martin was shot to death. Reuters

Update 5:20 p.m. We've just learned from the Sanford Police that there is evidently a typo on the first page of the neighborhood watch calls report they provided. The date range of Zimmerman's calls, they say, evidently is 2001-2012, not 2011-2012, which means his 46 calls came over a 10- to 11-year period -- roughly four calls per year -- and not four calls per month as the initial police statistics revealed. That certainly changes my early analysis on that issue -- but only slightly. The defense would say that 4 calls a year to dispatch is reasonable. Prosecutors would say that 46 calls is still an awful lot and that making all those calls year in and year out might have heightened Zimmerman's frustration/obsession with people he deemed "suspicious."


My colleagues James Fallows and Ta-Nehisi Coates have written extensively about the senseless killing of Trayvon Martin, an unarmed black 17-year-old, who was shot to death last month in a Florida neighborhood by its "watch captain." Martin, who weighed 100 pounds less than the older man who killed him, was walking home alone in the rain from a convenience store with a bag of Skittles and an iced tea. Please keep reading Jim and Ta-Nehisi for their insights into this story. Here's my first take on some of the legal issues involved:

When a Seminole County grand jury (of at least 15 members) convenes next month to determine whether state charges should be laid against George Zimmerman, the man who shot and killed Trayvon Martin on the night of February 26, the jurors will likely focus upon the 911 tapes. They are the best evidence of Zimmerman's state of mind in the months -- and minutes -- leading up to his tragic confrontation with Martin. Zimmerman's mental state, in turn, is a crucial element in determining whether he may rely upon Florida's dubious "Stand Your Ground" statute to keep himself out of prison.

From January 2011 until the night of the shooting, a period of roughly 13 months, Zimmerman called 911 for one reason or another an astounding 46 times. This official record alone, a sharp prosecutor might suggest to Seminole County grand jurors, indicates a pattern of unreasonable assertiveness (and perhaps even paranoia) on the part of the 28-year-old neighborhood watch captain. At a minimum, the calls reveal that Zimmerman took his job as a local busybody more seriously than most of us ever would or could. On January 29, 2012, for example, he called the cops on a group of kids just "playing in the street."

On Tuesday, Florida officials released audio and transcripts from six more of the Zimmerman tapes. Together, they portray a man on the lookout for "suspicious characters" -- a man out looking for trouble, an earnest prosecutor might say to grand jurors. On October 1, 2011, for example, Zimmerman called 911 to report that two black men were "just hanging out" at the gate of his neighborhood. "I have no idea what they're doing," Zimmerman told the dispatcher, as if this fact alone justified the intervention of the police. Neighbors say Zimmerman had a false sense of authority over his volunteer role -- and you can almost hear that in the tapes.

THE 911 CALL

But it is Zimmerman's chilling 911 call on the night of the killing, at a time when he was again patrolling the streets looking for trouble, which has both transformed this story into international news and weakened his "justifiable homicide" defense. The controversial Florida law protects from prosecution someone who uses deadly force if that person "reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony." I have italicized the many words in that clause that grand jurors will have to confront head-on to resolve this case.

That's why there are so many "justifiable homicides" in Florida--dead men don't testify

On the night of Martin's death, Zimmerman called 911 to report Martin as "a real suspicious guy. This guy looks like he's up to no good or he's on drugs or something." A good prosecutor might stop here briefly and ask the Seminole County grand jury whether it was reasonable for Zimmerman to come to these conclusions. But then, in the 911 narrative, Martin runs away from Zimmerman, and Zimmerman starts to chase him despite a plea from the 911 dispatcher not to do so. If Zimmerman had shot Martin at this point, chasing him down, is there any reasonable grand juror who would conclude that Zimmerman is immune from prosecution?

"These assholes. They always get away," Zimmerman told the dispatcher just before he killed Martin. By establishing evidence of an aggressive state of mind, by creating a vigilante-type motive on the part of Zimmerman, this statement arguably vitiates the language of the statute that permits the use of deadly force only when a person "reasonably believes it is necessary to do so to prevent death or great bodily harm." In other words, a prosecutor might tell Seminole County grand jurors, the "Stand Your Ground" provision is designed only to protect innocent bystanders left with no choice but to shoot.

Since the shooting, Zimmerman has said that he was attacked from behind by Martin. The Miami Herald reported that "Zimmerman said he had stepped out of his truck to check the name of the street he was on when Trayvon attacked him from behind as he walked back to his truck, police said. He said he feared for his life and fired the semiautomatic handgun he was licensed to carry because he feared for his life." If this story is true, if Martin attacked him from behind, Zimmerman likely would be shielded by the Florida law -- no matter how overzealous he had been before in chasing down a fleeing Martin.

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Left: Reuters; Right: AP

THE CONFLICTS

But even if Zimmerman's story is true, it doesn't mean that grand jurors would be excused from evaluating whether his fear of Martin was reasonable at the time of the alleged "attack." The statute's test is an objective one, not a subjective one. So why did Zimmerman fear for his life from the smaller man? And what role did Zimmerman himself play in placing himself in a situation where he would feel that fear? Grand jurors certainly will be able to put themselves in Zimmerman's shoes and decide for themselves if they would have chased a fleeing Martin after being told not to by a police dispatcher. I know I wouldn't have done it. How about you?

If it were merely a matter of Zimmerman's word against Martin's word it's clear the former would prevail. That's why there are so many "justifiable homicides" in Florida -- dead men don't testify. But now we've learned that Martin evidently was speaking on a cellphone with his girlfriend at the time of the attack. This witness told ABC News that Martin was spooked by Zimmerman and tried to run away from him. So now there is a conflict between two living people -- Zimmerman and Martin's girlfriend. On the one hand, you have a young man carrying candy and ice tea, prosecutors might tell grand jurors, on the other hand, you have a vigilante with a weapon in his belt and a chip on his shoulder.

USA Today reported Tuesday some of the alleged details of Martin's last phone call -- based upon the comments of a lawyer representing the young woman whose testimony contradicts that of Zimmerman:

The lawyer, who took an affidavit from the girl, quotes the girl on the cellphone as saying that Trayvon was walking home from the store and had temporarily taken refuge from the rain. He then began walking again, when he tells her, according to Crump, "I think this dude is following me." "She tells him, 'Baby, be careful, just run home,' " Crump said. According to the girl, Trayvon says, "I think I lost him" then moments later says, "He is right behind me again. I'm not going to run, I'm going to walk fast." Crump said "she hears another voice, 'What are you doing around here?' Trayvon says, 'Why are you following me?' " At that point, according to the girl, Travyon is pushed and his voice changes.

This is the essence of this case. If grand jurors believe this story, there is no reason not to indict Zimmerman. And if trial jurors believe this story, it is likely that Zimmerman would be convicted of a crime. You can't "reasonably" be trying to avoid serious injury or death, you can't be doing something absolutely necessary to spare your own life, if you are at the same time chasing down the very person you claim to be deathly fearful of. Even under Florida's addled self-defense law, even under its most strident interpretation from its worst judge, such an explanation makes no sense.

Florida law permits scared residents to defend themselves with lethal force. But it does not permit residents to go looking for trouble.

We know from the 911 tapes what Zimmerman's motive might have been in going after Martin the way he did. But what would Martin's motive have been to attack Zimmerman, who was 11 years older and 100 pounds heavier than him? That's a question grand jurors will have to answer if and when they are confronted by the evident conflict between Zimmerman's story and the version offered by Martin's girlfriend. And it is here where the failings of the police investigation will likely deprive grand jurors of all the pertinent evidence and information they might have had, and should have had, in looking into this tragedy.

THE POLICE AND PROSECUTORS 

Did the police fail to test Zimmerman for drugs and alcohol on the night of the 26th? If so, why? Did the police otherwise fail to treat him as a suspect? Why? Did they treat him, in other words, as they would have treated Martin, if it had been Martin who had shot Zimmerman that night? What about the allegation that a police officer may have coerced a witness into incriminating Martin, and not Zimmerman? Will prosecutors call that police officer before the grand jury to testify? And will there be a mini-trial during the grand jury proceedings over any conflicts between the witness's testimony and the testimony of the police officer?

There is something about this story, even this early on, that reminds me of the JonBenet Ramsey case. She was the little Colorado girl, the beauty pageant queen, who was killed in her home in December 1996. Early police errors in that case, some of them atrocious, have resolutely precluded any successful prosecution of any of the suspects ever identified. Will an otherwise game Seminole County grand jury reluctantly refuse to indict Zimmerman because of a lack of physical evidence compiled by the police? In 1999, it happened in the Ramsey case. And it's certainly possible that it could happen here.

All prosecutors have an ethical obligation to pass on a case they do not reasonably believe they can win. But all prosecutors also have a duty to push up against legal precedent when they believe that to do so would further the interests of justice. A reasonable prosecutor here could convince grand jurors to indict Zimmerman -- the idea being that there is a reasonable probability that his conduct on the night of Martin's death does not fall under Florida's self-defense law. But then the prosecutor would have the burden at trial, if the case got that far, of establishing beyond a reasonable doubt that Zimmerman had not acted in self-defense.

Here's how one Florida appellate judge, in a 2006 ruling, interpreted the low legal threshold necessary to move the burden of proof on self-defense from people like Zimmerman to prosecutors:

To repeat, the law did not require defendant to prove his justification of self-defense to any standard measuring an assurance of truth. He did not have to prove the exigency of self-defense to a near certainty (reasonable doubt) or even to a mere probability (greater weight). His only burden was to offer additional facts from which it could be true, that his resort to such force could have been reasonable (emphasis in original).

Like it or not, Florida law permits scared residents to defend themselves with lethal force. It permits residents to "stand their ground" rather than try to avoid trouble when trouble comes toward them. But it does not permit residents to go looking for trouble. It does not permit residents to hunt down other residents, to corner them, to kill them, and then to allege that they killed in self defense. George Zimmerman no doubt thought he was doing the right thing on those dozens of occasions when he dialed 911. Could he ever have imagined that one day those calls might be used against him with his life on the line?

POSTSCRIPTS

The prosecutor. It is State Attorney Norm Wolfinger who will be handling the investigation -- and the grand jury probe. On his official website, there is this irony:

Gun violence represents one of the greatest threats to the safety of our community and gun-wielding criminals need to be removed from our streets. To address this threat, in 2002 we formed Operation Cease-Fire, a partnership between my office, the United States Attorney's Office, and local, state, and federal law enforcement where criminal cases involving illegal gun use are identified for federal prosecution. The goal of Operation Cease-Fire is simple: to create safer neighborhoods by reducing gun violence and by removing armed predators from our streets.

The Seminole County grand jury. In the handbook that outlines the grand jury rules in play here, there are these admonitions:

Listen to the opinions of your fellow jurors, but maintain your own independent viewpoint. Be independent, but not obstinate. Be absolutely fair. You are acting as a judge. You therefore must be guided by your own good conscience and sense of justice. All jurors have an equal voice in determining whether an indictment shall be returned. Each of you has a right to state your reasons. Do not remain silent when the case is under discussion and then, after a decision has been made, criticize the acts of the grand jury. A reckless grand jury is as bad as a weak grand jury.

The federal investigation. So many questions for the Justice Department to answer! Here are a few off the top of my head: What did the police think about Zimmerman before the deadly incident? Did the dispatchers put together the fact that they were getting so many calls from one person? Did it influence their decisions -- the speed of police intervention, the way they treated Zimmerman on the scene -- on the night of Martin's death? At any point, did a police officer sit Zimmerman down and tell him to chill out? What about the allegations of disparate treatment for minorities in Sanford? So many questions. So few answers.


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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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