Michael Smerconish: Is case against Zimmerman doomed?

Last week, media outlets filed motions to unseal the records concerning the arrest of George Zimmerman in connection with the shooting death of Trayvon Martin. Florida has a rich tradition of "sunshine" when it comes to public access to court proceedings, and it seems likely that, sooner than later, the public will see what evidence special prosecutor Angela Corey has that warranted the filing of second-degree murder charges. Thus far, Corey and defense lawyer Mark O'Mara have agreed to limit customary access.

Absent something new or previously undisclosed being contained in Corey's file, one of America's best-known lawyers feels the case is doomed. Harvard law professor Alan Dershowitz believes that the murder charges will be thrown out. In a recent interview with me, Dershowitz acknowledged the low evidentiary bar necessary at this juncture, but still opined that Corey has not met it.

"It won't suffice," Dershowitz said. "Most affidavits of probable cause are very thin. This is so thin that it won't make it past the judge on a second-degree murder charge. There is simply nothing in there that would justify second-degree murder. The elements of the crime aren't established ...

"There is nothing in there, of course, either about the stains on the back of Zimmerman's shirt, the blood on the back of his head, the bloody nose, all of that. It's not only thin, it's irresponsible. I think that what you have here is an elected public official who made a campaign speech ... for reelection when she gave her presentation, and overcharged, way overcharged. ...

"If the evidence is no stronger than what appears in the probable-cause affidavit, this case will result in an acquittal."

Dershowitz was responding to Corey's two-page Affidavit of Probable Cause — Second Degree Murder. That document says Martin "was profiled by George Zimmerman. Martin was unarmed and was not committing a crime." The affidavit also says that in his recorded call to police, Zimmerman, "while talking about Martin ... stated 'these a — , they always get away.'" And, the affidavit says, when the dispatcher instructed Zimmerman not to pursue Martin, "Zimmerman disregarded the police dispatcher and continued to follow Martin, who was trying to return to his home."

What the affidavit does not reveal is what, specifically, began the physical confrontation. Here is the critical paragraph:

"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, identified the voice crying for help as Trayvon Martin's."

Confronted and a struggle ensued? Ensued how? Provoked by whom? And where Zimmerman presumably has told Sanford police that Martin was the initiator, what evidence does the prosecution have to refute him — with Martin himself silenced? The affidavit does not say.

Commenting on the absence of this information, Dershowitz told me: "But it's worse than that. It's irresponsible and unethical, and not including the material that favors the defendant, unless it's not true. But if it's true, as we now have learned from other information, that the grass stains are in back of Zimmerman's shirt, that there were bruises on his head, you must put that in an affidavit. The affidavit has to tell the truth, the whole truth, and nothing but the truth."

Dershowitz acknowledges that "probable cause is a very minimal standard. It just means if everything you say turns out to be true, have the elements of the crime been satisfied? ... This affidavit doesn't even make it to probable cause. Everything in the affidavit is completely consistent with a defense of self-defense. Everything."

Conventional wisdom holds that a critical pretrial moment will come when the defense argues a motion to dismiss the case on the "stand your ground" law (which will render Zimmerman immune from prosecution if by a preponderance of evidence he can show that he "reasonably believed" using deadly force was necessary to prevent death or great bodily harm).

But if Dershowitz is right, the case won't make it that far. The affidavit suggests that Zimmerman was the provocateur with its references to his profiling, slurs, and refusal to follow law enforcement advice ("we don't need you to do that"). But even if Zimmerman was the initiator, he will still maintain some right of self-defense.

"So, there is nothing in this affidavit — and I've read it quite carefully — that suggests the crime. It suggests the possibility of a crime, but a good judge will throw this out," according to Dershowitz.

When Sanford police initially investigated the case, they referred to it as a potential case of "manslaughter," but then declined to prosecute, at which point Gov. Rick Scott appointed Corey to investigate.

Manslaughter means the outcome was unintended. Murder, with which Corey charged Zimmerman, means he meant to kill Martin and acted with a "depraved mind." Unless the prosecution has an eyewitness to support such a claim, it is difficult to see how it will be sustained. We should soon find out.

Contact Michael Smerconish via www.smerconish.com. Read his columns at www.philly.com/smerconish.