Put yourself in special prosecutor Angela Corey's shoes for just a moment. On the one hand, she has an ethical obligation not to prosecute a case she doesn't believe she can win. On the other hand she has an obligation to zealously prosecute people whom she believes may have committed murder. The first obligation reins in the vast discretion prosecutors typically have to bring criminal charges. The second, conversely, prods prosecutors to indict even when they know they don't have a slam-dunk case. And whatever else the newly-minted People of the State of Florida v. Zimmerman is, it is not, from a legal standpoint anyway, a slam-dunk case.
Given the choice between the two options, to do something or to do nothing, it is perhaps inevitable that Corey would have exercised her discretion to charge George Zimmerman with the murder of Trayvon Martin. By doing so, Corey pushes into the court system, first to a judge and then perhaps to a jury, most of the legal questions so many of us have been asking about since Zimmerman shot the unarmed 17-year-old in in Sanford, Florida on February 26th. Corey isn't so much passing the buck to the courts as she is toting it, along with all of the racial baggage of the case, to the courthouse for trial. Prosecutors prosecute. Judges judge.
So long as Corey and her team present a professional case against Zimmerman, so long as they are aggressive but honest in handling the evidence and the witnesses against him, they are now in a no-lose situation. That's what Wednesday's charges mean. Sure, Corey and company will be second-guessed by every so-called "expert" within shouting distance of a camera or a microphone. But it will be the Florida courts which ultimately will determine the depth and breadth and applicability of the state's "Stand Your Ground" law-- the judges here, and the law itself, are on trial almost as much as Zimmerman himself.
Corey? If she loses because the language of the Florida statute is so broad, or because of shoddy police work, she will be able to say to the world: "Don't blame us if you don't like the result. Blame the legislators who enacted the statute. Blame the judges who enforce it the way they do. Blame the cops for treating Zimmerman the way they did that night." I'm not predicting that prosecutors will lose or that Corey would say something like that even if they do. But we all should acknowledge going into this new phase of the story that Zimmerman has a lot of things going for him under the law of this case.
A talk show host asked me, on the air, to put myself in Zimmerman's shoes today. I cannot. I am not a "neighborhood watch" captain and I did not shoot an unarmed teenager to death. I do not have tens of millions of Americans, maybe more, labeling me a racist. Zimmerman today indeed stands alone-- with his new attorney already on board. Last month, following the release of the 911 tapes, I wrote about how Zimmerman seemed to be looking for trouble on the night he killed Martin. Now that trouble is here, in the form of a second-degree murder charge that could put him in prison for decades, if not the rest of his natural life.
He is alone but he isn't the first despised criminal defendant and he surely won't be the last. While the public debate about him rolls on, Zimmerman now, finally, may rely upon the rights and protections afforded to all criminal defendants under federal and state law. Now that there is a pending case, the presumption of innocence formally attaches. So do disclosure rules designed to ensure that defendants get a fair trial. So does the prosecutor's burden of proving the case against Zimmerman beyond a reasonable doubt. He is alone. But, paradoxically, in some ways, he is more protected today as a defendant than he was yesterday as a subject.
Soon, Zimmerman and his lawyers will ask a Florida trial judge to dismiss the charges against him on the grounds that he has "immunity" from prosecution under the state's notoriously broad "justifiable homicide" law. At that time, we will essentially have a "mini-trial" in this case on the issue of whether Zimmerman's actions that night, and Martin's actions too, cause this tragedy to fall under the statute. A judge will make that determination, not a jury, and it is only if the judge decrees that the statute does not apply will Zimmerman have to proceed toward trial. Here again is the pertinent language from the statute:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
If Zimmerman wins this fight, and is granted immunity from prosecution for a "justifiable" homicide, prosecutors will have a hard time convincing Florida's appellate courts to reverse what the trial judge decides. Appellate judges traditionally afford trial court judges great deference on decisions that are based upon evidentiary hearings, which is what will happen here. On the other hand, if Zimmerman loses his immunity battle, he'll still be able to argue at trial before a jury that he had no evil intent at the time of the shooting. Prosecutors have to win every battle to get their conviction. Zimmerman only has to win one.
THE TRIAL JUDGE
There is an old saying in the law that the vast majority of criminal cases can be handled by the vast majority of trial judges. But every once in a while a case comes up which requires a special type of judge. This is one of those cases. It is imperative-- for Zimmerman, for prosecutors, for Martin's friends and family, for the hundreds of millions of people who care about this case, and for the perception of fair justice in America itself-- for this case to be assigned to a courageous, tough, fair trial judge who will be able both to control the courtroom and manage the media circus outside.
This case simply cannot be assigned to a judge like Lance Ito, who made a mess of the O.J. Simpson murder trial. It cannot be assigned to a media dandy or a fop. It must instead be assigned to a stern judge like Richard Matsch, the venerable federal judge who presided over the Oklahoma City bombing trials. There are many good trial judges in Florida. There are also many awful ones. The Seminole County judicial officials in charge of the process, whoever they are, have to ensure that this tinderbox case gets assigned to a judge who can protect it-- like a mother hen even-- from the passions and prejudices this story has evoked.
To ensure that Zimmerman gets a fair trial, to discourage some of the media silliness which has pervaded this story, to ensure that people all over the world who have nothing to do with the case can respect the result it generates, the trial judge here should immediately issue a media gag order on the lawyers involved in the case-- and then enforce it if the judge feels there is too much grandstanding on the steps of the courthouse. To her credit, prosecutor Corey did an excellent job Wednesday afternoon of refusing to spin the case in her direction. All she did was ask people to pray, which I guess is how they do it in Florida.
Travyon Martin's grieving mother expressed thanks Wednesday evening that the man who killed her son had finally, after 44 days, been arrested. But when Corey was asked about the "delay" in bringing Zimmerman in she seemed shocked at the perception that this homicide investigation had taken so long. We are so used to instant gratification today that we cannot even seem to wait a reasonable time for justice to run its course. You may think this story has been around forever but, really, it's still far closer to the beginning than it is to the end. It will be three to six months, at least, before Stand Your Ground faces its day in court here.