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State of Florida vs. George Zimmerman (2): The Fabrication of Probable Cause

Under Florida’s ‘stand your ground’ law, a person using deadly force against another is immune from prosecution for having done so under the following two conditions.

‘The individual reasonably believe[d]… such force… necessary to prevent imminent death or great bodily harm…’ (776.013).

‘The person… [was] not engaged in an unlawful activity… [and was] attacked… in a… place where he or she ha[d] a right to be… [in which case] he or she… has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it…  necessary… to prevent death or great bodily harm.’ (776.013 [3])

For the state to have been able to arrest and charge George Zimmerman with second degree murder, as it has done, the two Florida state police officers assigned to its investigation have had to swear an affidavit that effectively denies either condition obtained at the time he fatally shot Martin, contrary to Zimmerman’s claim that he had been attacked by the teenager and was defending himself.

In their Affidavit of Probable Cause, the two police investigators provide a narrative of what took place on the evening of the shooting in which they detail several what they term ‘facts’ that they claim their investigation unearthed that jointly contradict Zimmerman’s version of events.

Among these so-called ‘facts’ there are at least ten that those who swore the Affidavit  could not possibly have established for one or other of two reasons. First, the so-called ‘fact’ is directly at variance with what the investigation did establish. Second, the so-called ‘fact’ is entirely unsupported by what the investigation unearthed. Below I itemise these ten alleged incriminating ‘facts’ and for each explain why the investigation cannot possibly be reasonably supposed to have established it.

‘Fact’ 1:  ‘Trayvon Martin… was profiled by George Zimmerman’ when on his way back from a nearby 7-11 to the townhouse in the gated community of the Retreat at Twin Lakes where he was temporarily living.

 There is no evidence George Zimmerman did profile Martin, if by the term ‘profile’ is understood the singling out of someone as suspicious merely on account of some manifest ascriptive characteristic of theirs such as their skin-colour. That would be the natural understanding of the claim that he had done.

However, there is some doubt that at least one of the two investigating officers literally had any idea what he was talking about when he swore the Affidavit stating that Zimmerman had profiled Martin. This becomes clear from the transcript of the following exchange between him and Zimmerman’s counsel, attorney Mike O’Mara, at the second of the three bail hearings following Zimmerman’s arrest.

O’MARA:  If I say to you the word ‘peanut butter’, what do you think?
GILBREATH: Jelly.
O’MARA: OK, ‘Moe, Larry’ and
GILBREATH: Curly.
O’MARA: OK, when I say the word ‘profiling’, what do you think?
GILBREATH: I believe you’re applying a predetermined thought pattern to a set of circumstances.
O’MARA: No other word comes to mind when I say ‘profiled’ to you?
GILBREATH: I gave you my answer, sir.
O’MARA: OK, I appreciate the answer. Did you consider it to be some specific type of profiling?
GILBREATH: No.
O’MARA: Why did you use the word ‘profiling’ rather than ‘noticed’, ‘observed’, ‘saw’, or anything besides the very precise word ‘profiled’? And by the way, was that your word?
GILBREATH: I don’t recall. This was a collaborative answer — excuse me, collaborative document.
O’MARA: Between who in addition to the two people who signed it as being true?
GILBREATH: Detective Osteen and I prepared the majority of this. It was reviewed by our supervisor. There were several mistakes in it. They were corrected.
O’MARA: Do you know whose word ‘profiling’ was?
GILBREATH: No, I do not.
O’MARA: When you swore that to be true, what did you mean that to indicate?
GILBREATH: That Zimmerman saw Martin, formed an idea in his head and contacted the Sanford Police Department with no facts.
O’MARA: With no facts. And of course, you have available to you, Mr. Zimmerman’s statements, correct?      

 What Gale Gilbreath seems to be stating in the last exchange is that the reason why he had sworn Zimmerman had profiled Martin is because he had uncovered evidence that Zimmerman ‘had formed an idea in his head’ that Martin was up to no good without facts to support that notion, and  Zimmerman had done so because he had been applying ‘a predetermined thought pattern to the circumstances’.

One can only conjecture as to what ‘predetermined thought pattern’ Gilbreath thought Zimmerman was applying. By far the most likely one in the circumstances was that, being a black male teenager unknown to Zimmerman because not a permanent resident at the Retreat, Zimmerman had surmised that Martin was there for some nefarious purpose. The essential part of this imputed thought pattern, if this,  indeed, is what Gilbreath supposed Zimmerman had been applying in suspecting Martin of being up to no good, is that no good is what Martin must have been up to given he was a young male African-American.

O’Mara’s last remark shows what is wrong with such a surmise. If one consults what Zimmerman reported to the dispatcher in the 911 call he made upon seeing Martin, the teenager’s color formed no part of his stated reason for calling. He says that he was making the call on account of Martin’s suspicious behaviour, not his skin-color. How Zimmerman began his call was:

Hey we’ve some break-ins in my neighbourhood, and there’s a real; suspicious guy. … The guy looks like he’s up to no good, or he’s on drugs or something.  It’s raining and he’s just walking around, looking about… at all the houses.’ 

‘Fact’ 2: ‘Martin was unarmed and was not committing a crime.’

Martin undoubtedly may be presumed not to have been committing a crime when Zimmerman spotted him. However, for the two investigating officers to have sworn that he was not goes well beyond what the established facts warrant.  This is especially so, given something that it is very likely they would have known or at least should have, but not Zimmerman. This was the fact that Martin’s school-locker had recently been discovered to contain a selection of women’s jewellery which Martin claimed a friend had given him and who he refused to name, plus a flat screw-driver known as an implement used in break-ins.

What also adds to the suspicion that Martin may have been looking for somewhere to break into, although Zimmerman would not have known this, is the forty or so minutes between his timed departure from the 7-11 and the time that Zimmerman first reported seeing Martin. The 7-11 was no more than half a mile from the gated community. Were Martin merely returning home, he would have had more than ample time to do so. Given that it was cold and raining that evening, the fact Martin had taken more than forty minutes to reach where he had when first seen by Zimmerman suggests he was doing something more than merely returning home. Given the particularly inclement weather, whatever it was must have been somewhat unusual.

‘Fact’ 3: ‘Zimmerman… assumed Martin was a criminal.’

Nothing the investigation unearthed bears out that assertion. All that Zimmerman may be considered to have thought about Martin on the basis of its findings was that Martin had been behaving suspiciously, not that he was a criminal.

 ‘Fact’ 4: Zimmerman felt Martin did not belong in the gated community and called the police.’      

 There is nothing to suggest that Zimmerman felt Martin did not belong in the gated community, in the sense that, had the teenager not been acting as Zimmerman reported he had been, Zimmerman would have felt him out of place. It was only seven in the evening. Even though Zimmerman had never seen Martin there before, there is absolutely no basis for supposing that  Zimmerman would have felt Martin to be out of place there had he not been acting as Zimmerman described him as acting to the police dispatcher.

 ‘Fact’ 5:  ‘Zimmerman made reference to people he felt he had committed and gotten away with break-ins in his neighborhood… Later while talking about Martin, Zimmerman stated “these assholes they always get away” and also said “these fucking punks”.’

 The assertion Zimmerman had used the expression ‘fucking punks’ is based upon what Zimmerman and his counsel stated he had said, after CNN had suggested that he had uttered the racial slur, ‘fucking coons’. Later, CNN retracted the suggestion. It replaced it with the suggestion that he had merely been commenting on the unseasonably cold weather, upon getting out of his vehicle, by muttering: ‘It’s fucking cold.’ Whatever Zimmerman did or did not say, or later said that he said, listening to the 911 call reveals beyond shadow of doubt that, while he uttered the word ’fucking’, Zimmerman did not utter the word ‘punks’.

 ‘Fact’ 6: ‘The police dispatcher informed Zimmerman that an officer was on his way and to wait for the officer.’

 It is untrue that the police dispatcher informed Zimmerman to wait for the officer who  he had informed Zimmerman was on the way. He merely asked Zimmerman whether he wished to speak to the officer upon his arrival, and Zimmerman said he did.

‘Fact’ 7: ‘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.’

 No evidence was unearthed by the police investigation to show it was false that Martin was about to commit a crime when Zimmerman spotted him. See comments on ‘Fact 2’ above.

 ‘Fact’ 8:  ‘When the police dispatcher realised Zimmerman was pursuing Martin, he instructed Zimmerman not to do that and that the responding officer would meet him.’ 

 It is false that, when the dispatcher realised Zimmerman was pursuing Martin on foot, ‘he instructed Zimmerman’ to stop. What he said was:  ‘OK, we don’t need you to do that’ to which Zimmerman responded: ‘OK’.

 ‘Fact’ 9: ‘Zimmerman disregarded the police dispatcher and continued to follow Martin.’ 

 There is no evidence Zimmerman had been following Martin immediately before their confrontation.  In his 911 call, Zimmerman states that he had lost sight of Martin. Hence he could not possibly have been following the teenager after getting out of the car, since he no longer knew where he was. In his later statements, Zimmerman claimed he had got out of the car to find an address by which to be able to tell the police officer who was coming where to find him.

 ‘Fact’ 10: ‘Zimmerman confronted Martin and a struggle ensued.’

 There is no evidence Zimmerman confronted Martin. Rather the evidence suggests the opposite. First, there is the statement by Zimmerman that he had been set upon by Martin upon returning to his vehicle to await the officer. Second, there is the indirectly corroborating statement by Martin’s girlfriend Zee-Zee to whom Martin had been speaking on his cell-phone, and who told police that the last thing Martin had said to her, after she had pleaded that he run home when he told her Zimmerman was following him, was that he was no longer going to run away from Zimmerman.

Even were all the facts exactly as the two investigating officers swore in their Affidavit, they would still not amount to establishing probable cause of Zimmerman having committed second degree murder, as noted shortly after it was sworn by Harvard law professor Alan Dershowitz in an appearance on MSNBC’s ‘Hardball’ and who had said there:

‘Everything in the Affidavit is completely consistent with self-defense. Everything.’ 

 Given how slender, indeed non-existent, the basis is of the charge against Zimmerman, one wonders why it was ever brought. That will be the subject of my next posting about the case.

Reader Discussion

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on June 28, 2012 at 04:28:13 am

Self-Defense?
Seems Zimmerman was looking for trouble. Whether Martin was trouble is beside the point, it was not Zimmerman's job to confront people, and then rely on force of arms against an un-armed person. Zimmerman had ample time and opportunity to avoid the conflict. He was in a vehicle. Martin was not. The confrontation was solely Zimmerman's choice. His duty was to stand down and avoid conflict.

This is a reasonable person looking at the sources of the problem - Zimmerman, the gun, and poor choices. Arguments beyond this are highly questionable and seemingly irrelevant.

I'm not of average size. Some fat, but I'm active and not young.
Ask me if I must walk with care around people? Go ahead and ask.
Need I worry about paranoid reactions to innocent activities most people take for granted as they go about?
Go ahead and ask.

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Eric Hodgdon
on July 01, 2012 at 16:30:52 pm

While technically Zimmerman may have been within the law - which I argue he was not, is it wise to test such laws when a person must die in doing so? From the descriptions in the news, Martin was equally justified in defending himself against an armed attacker who displayed harassing, then aggressive behavior, thus initiating the sequence.

Moreso, and to a better point, just because an action is not illegal, must or should it be done? Laws produce the bare minimum of ethical behaviors, and when we all go to that limit and not cross over it, do we have what we want? For some the want is a need to do what will maximize themselves even though it harms another. For others the want is a want to remain above the minimum for mutual benefit - a difficult concept to understand.

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Eric Hodgdon
on July 06, 2012 at 22:42:23 pm

Fact 1: You are suggesting that Zimmerman knows everyone in that huge complex and all of their visitors as well. Also, you have to have knowledge of who had been doing all those break-ins in Zimmerman's neighborhood. They were all black males. So, naturally he sees a black kid and assumes the worst.
Fact 2: Martin's past comes into question and that implies that he was a bad kid and that is what caused his death. Because if he would of gone to the store and right back home like a good black kid, he would still be alive today.
Fact 3: So now you are saying that lucky for Martin, Zimmerman didn't know he really was a criminal!
Fact 4: Martin may of been acting strangely knowing he was being watched by Zimmerman. He was a kid and black. If that isn't enough to be concerned for your life everyday, I don't know what is.
Fact 5: If he didn't say the word "punks" what was the word? He wasn't talking about it being cold outside.
Fact 6: True. Zimmerman did say he wanted to speak to the officer. He said at first to meet him at his truck and then he said to have them call him. Why was that? Was he not planning on going back to his truck? If he feared for his life and it was dark out, and his flashlight didn't work, wouldn't you run back to your vehicle? No, he was still looking for Martin. By all accounts of who Zimmerman is, he was not going to let this kid get away.
Fact 7: Again, really stupid. Fact 2. Why is it there is a lot of assumptions about Martin but none about Zimmerman? Unknown to Martin, Zimmerman is a very confrontational person, ask his ex-girlfriend and from his altercations with the police, he was on drugs to elevate and drop his mood levels, he was carrying a gun, he was a wannabe cop and this "asshole" wasn't going to get away. Martin didn't know any of that.
Fact 8: Zimmerman's word is golden. As you now know he is not a credible person.
Fact 9: Zimmerman, the neighborhood watchman doesn't know what street he is on, yet he knows everyone that lives there? He said in his interrogation that he was behind Martin and the detective told him that's a problem because that constitutes following him. He was actually helped to get his story in line with what "really" happened so he didn't have to be arrested.
Fact 10: Confrontation ensued by Zimmerman. Did he have his gun out at that time? Did he really find a way to pull it out while Martin was on top of him and shoot him without getting any of Martin's blood on him? Not to mention that Zimmerman is left handed but claims to have shot him with his right. The gun would have to of been upside down if you look at the holster in evidence. Isn't it odd that there is no DNA evidence of Zimmerman under Trayvon's fingernails or on the cuffs of his hoodie? Amazing that they found him face down with his arms underneath him, not to mention nowhere near the T in the sidewalk. I believe they have the evidence against Zimmerman. We just haven't seen it all. As they said, they have his testimony, the location of Martin's body and the location of the casing. Too much of it just doesn't add up.

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Lynda
on June 10, 2013 at 14:00:36 pm

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