Is Jumping to Conclusions or Flying Off the Handle Good Exercise?

Normally I do not weigh in on ongoing criminal investigations no matter how newsworthy or apt for discussion. Making a bad situation where particles of selected information are bandied about as mathematicaly certain facts is unproductive and wrong. The Sanford, Florida shooting of one Trayvon Martin has become such a frenzy over the past week, however, that I make an exception to discuss the appalling rush to judgment.  I am particularly distressed because our own Dallas Morning News on this past Friday’s editorial page called, not merely for the investigation, but the prosecution of the alleged shooter George Zimmerman. There have been other commentators in the print and electronic media, some of whom I generally respect, who have done likewise. When one is not privy to complete information about a possible criminal act, they should keep their mouth shut, pen in their pocket, or keyboard unplugged insofar as opining on what should be done to or with an alleged perpetrator.
I can speak with some authority because I have been a big city police officer, patrol and criminal investigator, and a lawyer for more than 20 years. Most of my practice is civil, but I have some experience in criminal law, both in state and federal courts. We have all heard that facts are stubborn things. That is correct. What is most stubborn about them is that they are often difficult to ferret out, and are usually incomplete, uncertain, contested, and colored by differing points of view. Sorting out the ambiguities is the job of nearly anyone in any occupation that requires analytical thinking, which means most of us on at least some level. But no other occupation requires the split second analysis and action that is required of first responders such as patrol officers, firefighters, and emergency medical technicians. They don’t always get it right. Detectives, lawyers, and others have it a lot easier, because they have the luxury of time to look, evaluate, consider and reconsider alternate hypotheses before making a decision.
Reasonable persons can debate the merits of Florida’s (and many other states) self defense law, but it is the law. Some politicians supportive of the law have opined that it has no application in the Sanford case. That has not yet been established, so they should heed the zip the lip doctrine articulated above. What the law – the U.S. Constitution, in fact – requires in all cases is that a search or seizure, that is, an arrest, cannot occur unless probable cause exists. The courts have defined probable cause as facts and circumstances sufficient within themselves that would cause a reasonable person to believe a crime has been committed and the person arrested committed the crime. State constitutions and statutes may impose more stringent requirements to make an arrest. For example, here in Texas absent exigent circumstances, an arrest warrant is required. (I do not know what Florida law is in this regard, and I have not seen or heard anyone articulate it.) An exigent circumstance can be the necessity to positively identify the alleged perpetrator or a reasonable belief he might flee and hide.
Before one can be brought to trial by the federal government, and in most, but not all, states (including Texas, and I believe Florida), a grand jury must present an indictment. And, as most of us know, one cannot be convicted of any crime except upon proof beyond a reasonable doubt. One is entitled to a jury to determine that proof. In Texas, if a defense is asserted and evidence of it is presented, the prosecution has the burden to negate.
Given the sketchy information and facts known at this time, it is entirely plausible that the Sanford police made the right call by not arresting George Zimmerman. Under the circumstances, a warrant may have been required under Florida law. It is also possible they could have but chose not to do so because they knew who he was, where he lived, and he was not a flight risk. One of the stated purposes of the various “castle doctrine” or “stand your ground” laws was to not put the expense and burden of having to defend oneself for the use of deadly force unless it is abundantly clear such use was not justified. In the murky situation described, despite what editorial writers and pundits have to say, that clarity does not yet exist.
I fully, unequivocally support the absolutist freedom of speech and of the press doctrine as it has been established in American jurisprudence. An unavoidable cost of this freedom is the tendency to try in the public media a criminal case that touches a nerve of the population, or a significant segment thereof. Relatively recent examples were the murder trials of Casey Anthony (in Orlando, only one county over from Sanford) and O.J. Simpson. Both were acquitted, possibly in part because many in the media were so cocksure of their guilt. Other unsympathetic defendants have been tried in the press and convicted, some sentenced to death and executed. Most of those were probably guilty anyway. Even so, the lynch-mob mentality must not be allowed to rule the day. Quite a few of those currently expressing outrage had ancestors vulnerable to, if not victims of, lynch mobs, as well as media circuses that were the equivalent. Turnabout may be fair play in some venues, but not in criminal justice if some semblance of civilization is to endure.
As for the conduct of the Sanford Police Department is concerned, commentator Michael Kinsley is reported to have defined “gaffe” as when a politician accidently tells the truth. I regard reports of a “botched investigation” as one that does not elicit the facts that fits one’s prejudices.
As far as George Zimmerman is concerned, he has not said anything since the day in question. That is the only sane thing for him to do, and a Constitutional right. If I were his lawyer, I would advise him not to say anything even remotely connected with the incident – to anyone. Let the lawyer be his mouthpiece. (Good advice to anyone being interviewed by law enforcement officers. If they think you are a suspect, they’ll try to get you to admit to possibly incriminating facts. I know; I’ve done it.)
As far as Trayvon Martin’s family is concerned, I offer my condolences. It is profoundly sad to lose a loved one under any circumstances. I am not making any judgment of any kind at this time.

Postscript

As a postscript, I offer the following observations about getting the facts right, and several reasons to be skeptical of media reports:

the Tawana Brawley rape hoax. Al Sharpton was sued for his culpability and paid a $65,000 judgment.

the Duke University Lacrosse Team scandal. The prosecutor faced the same kind of pressure to go after students there that Florida is. In the end, the students turned out to be innocent and the prosecutor was disbarred and convicted.

the Representative Giffords Arizona shooting. The media blamed this on gun rights advocates immediately after it happened. It turned out the shooter was more left-wing oriented than conservative and had a personal grudge against Giffords rather than a political motivation.
the Texas Court of Criminal Appeals Chief Judge Sharon Keller was lynched in the media for allegedly preventing a condemned murderer from presenting his case to the court at the last minute. The Special Master who did the investigation of the alleged misconduct had this to say: “[Judge Keller’s accusers] in essence tried this case through the media…the media’s reporting began with minor inaccuracies and became more and more embellished, leading to plainly false assumptions about Judge Keller’s role…”.
the Henry Louis Gates arrest. He verbally abused a police officer in public who had come to investigate a report of Gates’ house being burglarized. The media attempted to turn him into a saint for doing it.
On a more personal note, I gave a number of interviews to the media when I was a police officer, and was misquoted or inaccurately paraphrased several times. I’ll give one example, because it shows how facts can be literally reported but the wrong impression given. Late one evening I was called to a shooting in a bar. I arrested a 17 year old (legally an adult form criminal purposes) for shooting her boyfriend. When I was filling out the arrest report, I asked her for her occupation and employment. She said she was a student at ******* High School. That’s what I put in the report. Turned out she was technically enrolled, but had not attended since the first week of school that year. When asked by a reporter, I related that was what the arrested woman said. The headline for the story the next day said “17 Year Old ******* High School Student in Shooting.” I’m sure the faculty and students of that school really appreciated that publicity. (Turned out that the boyfriend, who was 10 years her senior, probably deserved it. She pleaded guilty to misdemeanor assault and got probation.)

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