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June 7, 2012


Time to Pull the Plug on the Zimmerman Prosecution

The Florida prosecutor in the Zimmerman case apparently needs to go back to law school. It’s time to pull the plug on someone who is this clueless about her obligations as a prosecutor, and who cannot stand the slightest criticism of her ignorance. Reports Alan Dershowitz (who has been around so long, he was my professor of criminal procedure at Harvard!):

State Attorney Angela Corey, the prosecutor in the George Zimmerman case, recently called the Dean of Harvard Law School to complain about my criticism of some of her actions.

She was transferred to the Office of Communications and proceeded to engage in a 40-minute rant, during which she threatened to sue Harvard Law School, to try to get me disciplined by the Bar Association and to file charges against me for libel and slander.

She said that because I work for Harvard and am identified as a professor she had the right to sue Harvard.

When the communications official explained to her that I have a right to express my opinion as “a matter of academic freedom,” and that Harvard has no control over what I say, she did not seem to understand.

She persisted in her nonstop whining, claiming that she is prohibited from responding to my attacks by the rules of professional responsibility — without mentioning that she has repeatedly held her own press conferences and made public statements throughout her career.

Her beef was that I criticized her for filing a misleading affidavit that willfully omitted all information about the injuries Zimmerman had sustained during the “struggle” it described. She denied that she had any obligation to include in the affidavit truthful material that was favorable to the defense.

She insisted that she is entitled to submit what, in effect, were half truths in an affidavit of probable cause, so long as she subsequently provides the defense with exculpatory evidence.

She should go back to law school, where she will learn that it is never appropriate to submit an affidavit that contains a half truth, because a half truth is regarded by the law as a lie, and anyone who submits an affidavit swears to tell the truth, the whole truth and nothing but the truth.

Before she submitted the probable cause affidavit, Corey was fully aware that Zimmerman had sustained serious injuries to the front and back of his head. The affidavit said that her investigators “reviewed” reports, statements and “photographs” that purportedly “detail[ed] the following.”

It then went on to describe “the struggle,” but it deliberately omitted all references to Zimmerman’s injuries which were clearly visible in the photographs she and her investigators reviewed.

That is Hamlet without the Prince!

What particularly was improper about the prosecutor’s affidavit? Simply this: she was trying to game the criminal justice system. She kept the judge hearing the case, and who would decide on the sufficiency of the indictment for second-degree murder, ignorant of all the exculpatory facts until after the judge had ruled the indictment was sufficient! Meanwhile, she acknowledges her duty to tell the defense about all the exculpatory evidence, but claims she has no similar duty to tell the judge!! Isn’t that amazing?  Prof. Dershowitz continues:

The judge deciding whether there is probable cause to charge the defendant with second degree murder should not have been kept in the dark about physical evidence that is so critical to determining whether a homicide occurred, and if so, a homicide of what degree. By omitting this crucial evidence, Corey deliberately misled the court.

Corey seems to believe that our criminal justice system is like a poker game in which the prosecution is entitled to show its cards only after the judge has decided to charge the defendant with second degree murder.

That’s not the way the system is supposed to work and that’s not the way prosecutors are supposed to act. That a prosecutor would hide behind the claim that she did not have an obligation to tell the whole truth until after the judge ruled on probable cause displays a kind of gamesmanship in which prosecutors should not engage.

Exactly. And now, look at how she applies a double standard:

Ironically, Corey has now succeeded in putting Zimmerman back in prison for a comparably misleading omission in his testimony. His failure to disclose money received from a PayPal account requesting donations for his legal defense made his testimony misleadingly incomplete.

In her motion to revoke his bail, Corey argued that Zimmerman “intentionally deceived the court” by making “false representations.” The same can be said about prosecutor Corey. She too misled and deceived the court by submitting an affidavit that relied on a review of photographs and other reports that showed injuries to Zimmerman, without disclosing the existence of these highly relevant injuries.

The acme of Corey’s arrogant ignorance, however, has to be her utter disregard for the First Amendment as she throws around her threats of lawsuits against Prof. Dershowitz, and against his employer, Harvard Law School, for failing to curb his intemperate criticisms of her:

Even if Angela Corey’s actions were debatable, which I believe they were not, I certainly have the right, as a professor who has taught and practiced criminal law nearly 50 years, to express a contrary view. The idea that a prosecutor would threaten to sue someone who disagrees with her for libel and slander, to sue the university for which he works, and to try to get him disbarred, is the epitome of unprofessionalism.

Fortunately, truth is a defense to such charges.

I will continue to criticize prosecutors when their actions warrant criticism, to praise them when their actions deserve praise, and to comment on ongoing cases in the court of public opinion.

If Angela Corey doesn’t like the way freedom of expression operates in the United States, there are plenty of countries where truthful criticism of prosecutors and other government officials result in disbarment, defamation suits and even criminal charges.

We do not want to become such a country.

Thank you, Prof. Dershowitz, for this morning’s basic lesson in civics.

UPDATE: Prof. Jacobson (Legal Insurrection) calls for Corey to resign, as with this accusation she has injected a personal interest into the prosecution.


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29 comments

I’d heard of some appalling conduct from rogue prosecutors in recent years, but . . . wow.

[1] Posted by Newbie Anglican on 6-7-2012 at 11:09 AM · [top]

Mr. Haley and Mr. Dershowitz are correct.  I read the affidavit and it deliberately leaves out facts concerning Zimmerman that were known by the Prosecution at the time.

I do hope after this is over there will be an investigation up to the office of the Governor for prosecutor misconduct and political pressure.  The defenses job is to defend the accused within the confines of the law, but the prosecuter has a higher standard and that is to truth and justice.

[2] Posted by Br. Michael on 6-7-2012 at 11:22 AM · [top]

The coordination of MSM, activists and even elements of the criminal justice system to create a murder case is frightening.  Our legal protections are under attack.

The Founders proscribed Bills of Attainder, binding the government’s power to hound unpoplular individuals.  The Bill of Rights places the burden of proof on the state, and gives each of us formidable tools for our own legal defense.  The individual has God-given rights; the state must function under rule of law. 

The Zimmerman prosecution is a collusion of private and public entities to ignore the rule of law in favor of political ideology.  It is an effort to make an individual into a sacrifice to the god of group-think.

Look, when O.J. Simpson was on trial, lots of us knew he was guilty - but the state did not meet its burden of proof.  The case against him was made sloppily, and the prosecution’s summation of “a mountain of evidence” was mainly circumstantial stuff about him being a lout. 

The “not guilty” outcome was necessary, because our Constitution is written to refute any assertion that any one of us is “guilty” because “public opionion says you are.”  Zimmerman is being charged with murder because “everybody says so.”  That is not the system we are intended to have and not one under which any of us should desire to live.

[3] Posted by Timothy Fountain on 6-7-2012 at 11:43 AM · [top]

This looks like a political prosecution.  Originally the police decided not to press charges because the visible evidence and witness testimony supported Zimmerman’s assertion that he had fired in self-defense.  Then a political uproar arose and he was charged, not with manslaughter but with second-degree murder.  We shouldn’t want anyone of any race railroaded for political reasons.

This prosecutor, who held a nationally-televised news conference to announce the charge, should know that she’s a public figure and criticism of her professional conduct is a matter of free speech.

[4] Posted by Katherine on 6-7-2012 at 11:53 AM · [top]

Her threats against Dershowitz and Harvard are complete bluster. I majored in Journalism so my only legal training is in media law, but I remember very distinctly that: 1) it’s not libel if its true (and the burden of proof is on the plaintiff) and 2) it is virtually impossible for a public official to win a libel or slander suit.

[5] Posted by Ecclesiastes 1:18 on 6-7-2012 at 12:00 PM · [top]

This is quickly shaping up to be Duke Lacross II.  Zimmerman shouldn’t even have been charged, much less jailed, for fending off a violent attack.  I feel sorry for Martin’s parents to some degree…I think they are finding out a lot of things about their son that are shocking to them, and will continue to do so as this process unfolds.

[6] Posted by Jeffersonian on 6-7-2012 at 12:52 PM · [top]

What I want to know, though, is why the press is so silent on the subject of whether George Zimmerman’s father is white.

If his father is white, then he is obviously guilty of racism, and the matter can be settled very simply and quickly. The press must have dug this information up by now, so why haven’t they revealed it? His pronounced Nordic features and surname obviously lead one to suspect that he is probably some member of the American Nazi Party or the Aryan Brotherhood. I think the MSM should be sued: they are obviously in the pockets of white racists and covering up information relevant to the guilt of this crypto-skinhead, Herr Zimmermann.

[7] Posted by SpongJohn SquarePantheist on 6-7-2012 at 01:23 PM · [top]

uh, [/sarcasm]

[8] Posted by SpongJohn SquarePantheist on 6-7-2012 at 01:24 PM · [top]

As a former prosecutor in Florida, I want to correct what may be a misunderstanding as to how the charges were actually brought.  In Florida it is not necessary to indict unless it is a capital offense, and the charge was second degree murder, non-capital.  She therefore did not indict but filed an Information and on that basis a capias for the arrest was issued. When the Information is filed the prosecutor signs an affadavit that states that the charges are based on evidence sworn to before that prosecutor and IF true would constitute the elements of the offense charged.  The judge issues the capias on this affadavit.  Exculpatory evidence is considered and weighed in the balance of if the evidence would still likely allow a jury to consider the merits of the evidence supporting the charges and can it convict even in the face of potential defenses. It is only speculative that a Circuit Judge would over rule a State Attorney’s ( a constitutional elected officer) decision to charge, even if the injuries received in a struggle would have been specified in the information.  The judge that issued the capias would have obviously known about the potential defense provided by the controversial Stand Your Ground law, and reference to a struggle only amplifies that there may be a valid defense.  But the existence of a potential defense does not per se mean there is no probable cause to charge.  It is not a mini trial here.
IMO, however, it would have been far better to present the facts to a grand Jury for indictment, which option existed, but was likely not pursued due to the public situation surrounding the matter which called for a quick resolution.  I do not personally like what happened here, but feel the prosecutor was within her rights to fiole and charge as she did.  I do not believe her public conduct as otherwise outlined in the article is professional or acceptable for an elected officer with as much powerful discretion as she has.

[9] Posted by aacswfl1 on 6-7-2012 at 02:01 PM · [top]

#6, I was thinking the same thing. I wonder what Mike Nifong is doing these days.

Even though she was under no-doubt-unbearable pressure to do something, politics and prosecutors don’t mix well.

And, for her to threaten Harvard and Prof. Dershowitz in this way is baffling.

I agree she should exit the case immediately, and get some stress management sessions. Maybe spiritual direction, too.

[10] Posted by Ralph on 6-7-2012 at 02:25 PM · [top]

I want to amplify here the decision to charge is the prosecutor’s, and the capias is issued on that affirmation of the prosecutor mentioned above.  Now if the judge believes the capias is based on the misconduct of the prosecutor or false information supplied by the prosecutor, the judge has ethical and professional responsibilities directed toward that prosecutor under the Canons of Professional Resposnsibiltiy and the Code of Judicial Conduct.  So far nothing in that regard has occurred. Dershowitz’ criticism, if directed to this process itself, is correct in that it points to a weakness in that process.

[11] Posted by aacswfl1 on 6-7-2012 at 02:37 PM · [top]

11, the affidavit makes no mention of Zimmerman’s injuries and states as fact a detective’s opinion that Zimmerman was racially profiling.  That’s no affidavit I would sign.

[12] Posted by Br. Michael on 6-7-2012 at 02:49 PM · [top]

I am not saying she did not conflate facts, just pointing out the process and trying to correct a perception that somehow a judge would have rejected the capias request.  Once an elected State Attorney signs it, the capias will issue and a person will go to jail. If prosecutoral misconduct has occurred here she could well yet answer for that.  If the affadavit does state that Racial Profiling was a fact it must have presented some version of facts that would, if true constitute that offense too again on her own signature as a duly elected constitutional state officer.  If she conflated facts to get the capias she could face disciplinary charges if brought.  It is rare but state attorneys have been disclipliined for misconduct. 
I think it is obvious that this prosecutor was caught up in the public hype and you cannot underestimate the role the public media attention and the threats of public violence played in how all this went down.  It seriously influenced and tainted the process. I was dumbfounded by the presser she held.  It is interesting that a state attorney from outside the district wherein these events occurred had to be brought in to take on the prosecutoral responsibiity. I have said enough.

[13] Posted by aacswfl1 on 6-7-2012 at 03:36 PM · [top]

Since the Zimmerman case is about justice [hopefully] and laws that may have been broken, it has seemed curious that no one in State of Florida legal system, up to and including the Governor of the state has said one word or taken any action against the New Black Panther Party for publicly putting a bounty out on Zimmerman; dead or alive.  Unless that constitutes lawful action in Florida.

[14] Posted by Capt. Father Warren on 6-7-2012 at 03:44 PM · [top]

13, I read the affidavit.  The allegation of racial profiling is pure conclusion.  There are no facts, just the statement that Zimmerman was racial profiling.

[15] Posted by Br. Michael on 6-7-2012 at 03:56 PM · [top]

Can an individual citizen engage in “racial profiling”?  I don’t think so.  They can act with racial bias, but they can’t “profile” someone because profiling implies that someone is using a set of criteria to perform an official action. 

I feel sorry for all involved.

[16] Posted by Paul B on 6-8-2012 at 07:29 AM · [top]

The unfortunate legacy of this whole matter is that it is Exhibit “A” in the case of the triumph of secularism, expediency and politics over statesmanship and principle.
This is where our focus should be, IMO, and less on ad hominum personal attacks on prosecutor Correy because she is only a captive pawn in that process.  In Florida she is lauded as a strong minded and tough prosecutor, but in reality in the realm of statesmanship and principle, she is weak.  But there was another prosecutor involved in this case who is anonymous.  This is the unsung hero of statesmanship and principle in this matter.
As I have illustrated the process above a bit I will add additional detail, that is not known because it was not reported, but is likely because of how things are done.  The public outcry was that the police won’t arrest…the police are racist, the police are biased.  From the beginning, it is likely that the police and the district prosecutor jointly investigated this case because it is a homicide.  If not, it is likely that the police investigation was presented in detail to the district prosecutor so that appropriate charges could be initiated. As we know, they were not initiated, and one can only surmise that the district prosecutor demurred on charges based on the initial investigation, which as I stated, was most probably a joint investigation between the two agencies. 
This is how it all would have ended, but for the public outcry, and the unbelievable national attention swung onto this matter.  As this escalated, and the threats of violence became more extreme, the Governor of Florida became involved in some way.  We may never know why or how he became involved but the outcome was that the district prosecutor voluntarily recused from the matter and Correy was appointed.  I think it is obvious that the district prosecutor would not charge and her role was to file charges and quench the public unrest.  That was successful in that realm.  In the eyes of the Constitution and Laws of Florida, Correy acted lawfully and consisten with her commission.  Hence her outcry directed toward those who would personally attack her integrity.
I don’t personally know anything about Correy, her faith or her personal life values.  I don’t find the personal criticism constructive because it is focusing on the wrong issue.
For those who are educated, concerned, Christian leaders, our focus, criticism and resulting energy should be spent on assuring that Christians remain in the public square and that leaders are selected at the highest levels who are statesman and willing to stand upon principles when making difficult decisions.  We should be lauding those in this case who did make some obviously tough decisions, that were not popular and were unwilling to bow to expediency, and decrying the triumph of politics and expediency in this unfortunate matter.  It is more a cultural failure than a personal one.

[17] Posted by aacswfl1 on 6-8-2012 at 08:28 AM · [top]

aacswfl1, you’ve got to be kidding me.  Corey “is only a captive pawn”?  Didn’t you even blush one little bit when writing that?  George Zimmerman is LITERALLY captive right this minute, because of this woman’s grandstanding performance as the Champion of the Oppressed before an audience of the ignorant and degenerate dregs of society.  Now that a few tomatoes are being thrown instead of flowers, she huffs and threatens, and YOU pose as the Voice of Reason by insisting that we all just avert our eyes and not comment on the unseemly fracas.  All you’re doing is confirming for me that “lawyers all stick together” no matter what.  Well, all except Allen Dershowitz.

[18] Posted by Dr. Mabuse on 6-8-2012 at 09:27 AM · [top]

aacswfl1, I appreciate very much your input on this thread, as a former prosecutor yourself. The fact that Corey chose to forego capital charges by not seeking an indictment is indeed significant—it means the decision to charge was hers, and hers alone.

That said, I think the essence of Prof. Dershowitz’s complaints about her conduct is not only the manner in which she presented her charges to the judge, but also to the public and the press. By deliberately leaving out all mention of exculpatory evidence (and her omission was deliberate, there can be no doubt—because she admitted she had to turn over all that evidence to the defense), she stage-managed Zimmerman’s arrest so as to achieve maximum prejudice against him in the eyes of the public, and hence of the jury pool. (Did you watch her performance at the press conference? It was all about “this is a bad man, he did a terrible thing to that poor boy and his ‘sweet parents’, and we’re going to charge him with a crime for which he could do life in prison”—said smiling, almost with glee, and wholly absent from any sober solemnity. She also said that her decision to prosecute, after “fourteen days” of investigation, was based “on the facts, and not on public pressure or petition.” Yet she called up Trayvon’s parents just before going public, to tell them to be sure to watch the announcement she was going to make.)

No criminal defense attorney likes it when the prosecutor attempts to poison the jury pool from the outset, and thereby forces the bringing of a motion for change of venue. (But in this case, the charges received widespread publicity throughout the whole State of Florida, so the only possible venue would be possibly the Keys, or the extreme western panhandle.)

We all know defense attorneys who attempt to try the case ahead of time, in the newspapers—but given the State’s burden of proof, that is only the defendant’s right. For a prosecutor to resort to such tactics at the outset demonstrates (to me, at least) that she has little confidence in her case, and that she is counting on the momentum of public outrage she has attempted to kindle to carry the day.

And her own blind rage at Dershowitz’s calling her on the unethical character of her tactics shows that he hit the mark.

All that being said, she has now so vested the charges with her own personal integrity, which she has voluntarily put on the line with her threats to sue Dershowitz and Harvard, that she ought in all conscience to withdraw in favor of another prosecutor.

[19] Posted by A. S. Haley on 6-8-2012 at 09:29 AM · [top]

Folks in NE Fl know a lot about Angela Corey. To avoid being suit threatened, let me quote from a new article:

Shorstein fired Corey in 2006 from the office she had worked in for the previous 25 years. He said the firing stemmed from a complaint from an intern who claimed Corey was unprofessional and profane. He asked Corey to respond to a professor who had brought the complaint to his attention, but Corey instead sent a letter criticizing the professor for communicating the complaint, according to Shorstein.

“I don’t want to sound like an old, tough Marine, but if I’m your boss, and I order you to do something that is appropriate and legal, and you don’t do it, one of us has to go,” Shorstein said.

As the Jacksonville-based State Attorney for three northeast Florida counties, she has been known for filing more charges, bringing more cases to trial and being less likely to use a grand jury than her predecessor. Florida prosecutors are required to use grand juries only in first-degree murder degrees. But many prosecutors send high-profile or controversial cases to grand juries to avoid the political fallout of an unpopular decision.

She won the State Attorney’s Office seat after being fired from her job at the office a few years ago, beating the handpicked successor of the state attorney who fired her.

Corey was appointed the special prosecutor in the case by Gov. Rick Scott after State Attorney Norm Wolfinger, whose district covers Sanford, recused himself.

[20] Posted by Festivus on 6-8-2012 at 09:33 AM · [top]

I should also add:

Corey disputed that account, saying she was fired because she would not agree to drop her run for State Attorney in 2008.

“They cooked up so many things, it was almost unbelievable,” she said.

Her behavior and history is what it is.

[21] Posted by Festivus on 6-8-2012 at 09:50 AM · [top]

Personally, I think poisoning the jury pool via the news media should be prosecutorial misconduct.  But I’m not holding my breath on that.

[22] Posted by Newbie Anglican on 6-8-2012 at 10:07 AM · [top]

Not to mention poisoning the jury pool by the Media’s conduct as well as special powerful interest groups.  Remember, this whole incident took place a couple of months [going on memory here] before the whole media/special interest circus got cranked up.

[23] Posted by Capt. Father Warren on 6-8-2012 at 10:12 AM · [top]

#18 Apparently you don’t read well.  All I am doing is trying to get the focus on the real issue to me which is that this whole debacle is made possible by the cultural climate we are in. This is indded a sad state of affairs.
I am not defending her.  She is indeed a captive pawn, admittedly willing, in a process that allowed politics and expediency to trump reason and right.  She was selected to do what she did, she did it and it is all legal.  She is the product of that culture.  I want you to comment on the “unseemly fracas” of which she is only a part.  That is exactly what you should be upset about.  She should not have become involved in the first place is the whole point.
The other state attorney is who we should be praising.  Our energy should be directed toward changing the environment that allows a Corey to ever become a powerful state officer, which she now indeed is.
#19 Thank you for your comments.  Yes I did see the presser, and, as I stated, I was dumbfounded…it was all about her.  I thought then and still think the case is thin.
As for getting her off the case now, obviously I think she got the job in this case because she was willing to do what the other SA would not do, and probably many others like him as well would not.  Why, pray tell, would she be forced off now?  Will she quit out of principle?  That is the subject of all my comments above…
thanks, out!

[24] Posted by aacswfl1 on 6-8-2012 at 10:44 AM · [top]

For those who are interested here is a link to the actual affidavit:

http://media.trb.com/media/acrobat/2012-04/69353440.pdf

Here is the profiling statement:  “Martin then walked back and entered the gated community and was on his way back to the townhouse where he was living when he was profiled by George Zimmerman.  Martin was unarmed and was not committing a crime.”

When “he was profiled by Martin”.  How do we know this?  Where are the facts on which the affiants base this conclusion?  Not in the affidavit that’s for sure.

Then there is this account:

Martin attempted to run home but was followed by Zimmerman who didn’t want the person he falsely assumed was going to commit a crime to get away before the police arrived.  Zimmerman got out of his vehicle and followed Martin.  When the police dispatcher realized Zimmerman was pursuing Martin, he instructed him not to do that and that the responding officer would meet him.  Zimmerman disregarded the police dispatcher and continued to follow Martin who was trying to return to his home.

Zimmerman confronted Martin and a struggle ensued.  Witnesses heard people arguing and what sounded like a struggle.  During this time period witnesses heard numerous calls for help and some of these were recorded in 911 calls to police.  Trayvon Martin’s mother has reviewed the 911 calls and identified the voice calling for help as Trayvon Martin’s voice.

Most of this is pure speculation and conclusion.  It might make a good opening or closing speech, but it is hardly a statement of facts.

And there is no mention of other evidence that Martin was on top of Zimmerman and smashing his head into the the concrete sidewalk or evidence that seems to show that Zimmerman gave up his pursuit when the dispatcher told him to and was on his way back to his car.

Unfortunately this is a good example of how not to do something.  The press has been particularly irresponsible.  The police and prosecutor were placed under a lot of pressure to come up with a result and did so.  And the tendency to pre-judge this case before trial and the evidence properly presented and tested has been unfortunate.

I intend to use this case in my Business Law class as an example of why trial by press and speculation is so bad and why a proper trial where the evidence can be tested and witnesses cross-examined is so critical.

[25] Posted by Br. Michael on 6-8-2012 at 12:05 PM · [top]

@#10

Maybe spiritual direction, too.

 

Angela and her family are long, long, time members of St. John’s Cathedral. (TEC)

[26] Posted by ty1028 on 6-8-2012 at 01:25 PM · [top]

#17, if Corey charged GZ to “quench [sic] the public unrest,” then she ought to be fired forthwith.  We don’t drag innocent people through the criminal process because someone else is threatening violence.  The fact that Corey omits exculpatory evidence and overstates incriminating evidence in her filing only reinforces the political nature of this prosecution.  Dershowitz is right, this women needs to be thrown out on her ear.

#25, there is so much false in that affadavit.  All I can say is that GZ’s 911 call audio is not kind to this defamatory and false recounting, and the timeline of what went on that night is going to be an absolute playground for the defense.  This prosecution is as egregious as any I’ve ever heard about.

[27] Posted by Jeffersonian on 6-8-2012 at 05:20 PM · [top]

Thanks to #19 for pointing out a very serious problem.  Where is Zimmerman to get a fair trial, after all of this negative publicity and political posturing by the prosecutor?

[28] Posted by Katherine on 6-8-2012 at 07:24 PM · [top]

#26 Angela…long, long time member of St. John’s…TEC.

Sadly, this fact only adds clarity to her actions…

[29] Posted by aacswfl1 on 6-13-2012 at 11:22 AM · [top]

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