How can we miss her, when she won’t go away?

Judge Debra Nelson, who presided over the murder trial of George Zimmerman, today issued a ruling dismissing his libel suit against NBC (a copy of that ruling can be found at the bottom of this post).

Those of us who followed the Zimmerman murder trial closely will recall Judge Nelson as ruling so consistently in favor of the Prosecution, fairly bending over backwards in her deference to prosecution arguments.

Judge-Debra-Nelson-trayvon-martin-case

In contrast, her rulings in favor of the defense were few and far between.  It was surely a similar perception by the defense that inhibited them from ever seeking self-defense immunity for Zimmerman, as provided for under Florida statute 776.032 “Immunity from criminal prosecution and civil action for justifiable use of force.”

That the same judge who so consistently ruled against Zimmerman at his murder trial would be the one chosen to also preside over his libel suit against NBC is eye brow raising, to say the least.

Zimmerman’s libel suit against NBC was based on NBC’s admitted doctoring of the audio of his 911 call to police, apparently done with the intent of making Zimmerman appear to be racist.

Purported evidence of racism on the part of Zimmerman was, at the time, extremely important to the prosecution of the case, for two reasons.

First, it added  fuel to the political fires raging in favor of Zimmerman’s prosecution, without which the prosecution would never have occurred given the facts and evidence in this case.  In my nearly 20 years of focusing my legal practice exclusively on self-defense cases, Zimmerman’s shooting of Trayvon Martin is by far the cleanest, legally speaking, self-defense shooting I have ever seen brought to trial.

Second, purported evidence of racism was essential to the Prosecution’s laughable efforts to obtain a second degree murder conviction.  

Under Florida law, second degree murder (782.04 Murder) requires some degree of a “depraved mind” or malice, and such malice almost invariably is a function of a prior existing relationship between the persons involved.

The difficulty, of course, was that Zimmerman and Martin were unknown to each other, thus providing no prior opportunity for malice to have developed between them.  If evidence of racism could be produced, however, the Prosecution could make the argument that the supposedly racist Zimmerman actually possessed malice against ALL black people, including Martin, thus meeting the malice requirement of second degree murder.  

It was particularly entertaining, then, to watch as every black witness brought to the stand by the Prosecution spoke with extreme favor of Zimmerman in their interactions with him. If anything, the evidence produced of trial was strongly counter to any claim of racism on Zimmerman’s part.

It was in the vacuum of actual evidence of Zimmerman’s purported racism that the NBC doctoring of the 911 audio recording was intended to be a “game changer” in favor of the Prosecution.  Here’s what was ACTUALLY said in the exchange between George Zimmerman and the police dispatcher during the 911 call:

Zimmerman: “This 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.”

Dispatcher: “OK, and this guy is he white, black or Hispanic?”

Zimmerman: “He looks black.”

In the audio played repeatedly by NBC on the air to a national audience, the dispatcher’s inquiry was spliced out, as was Zimmerman’s explanatory text of why it appeared that Martin’s behavior was notable:

Zimmerman: “This guy looks like he’s up to no good . . . He looks black.”

The doctored audio obviously suggests that Zimmerman purportedly believed Martin was “up to no good” solely on the basis of being black–prima facie racism.  Utterly fabricated, of course.

Despite this, Judge Nelson has dismissed Zimmerman’s libel suit against NBC on the basis that he had become a “limited public figure” in the controversy.  How so? Judge Nelson writes:

[Zimmerman]e voluntarily injected his views into the public controversy surrounding race relations and public safety in Sanford and pursued a course of conduct that ultimately led to the death of Martin and the specific controversy surrounding it.  Moreover, Zimmerman’s shooting of Martin rendered him a public figure in the ensuing controversy.

Yep, according to Judge Nelson, Zimmerman became a limited public figure unable to pursue a clear case of libel because, while doing nothing whatever unlawful himself, and conducting himself precisely as instructed by the police who managed the Neighborhood Watch Program in which he participated, became the victim of a vicious, life-threatening attack by Trayvon Martin.

More simply, if you are the utterly innocent victim of a violent criminal attack by someone of another race, and defend yourself, that makes you a limited public figure subject without recourse to deliberate libel by the news media.

Nice.

Of course, even as a limited public figure Zimmerman could still sue for libel if he could demonstrate malice. Judge Nelson deals with that by simply concluding that he cannot demonstrate malice:

Zimmerman cannot carry his burden of proving that the single, allegedly [?!?!–AFB] defamatory statement he challenges in the March 20 TODAY show broadcast was disseminated with actual malice.

She similarly dismisses other disseminations of essentially the same libelous content.  You can almost hear the smugness in her opinion as she writes:

The question whether a plaintiff can carry his burden of proving actual malice is, as a threshold matter, an issue of law to be decided by the court.

Meaning, of course, by Judge Debra Nelson.  What good fortune she has.

There’s more of the same in the full-length ruling, which can be found below, if you’ve the stomach for it.

Zimmerman can, of course, appeal this decision.  One would hope he could find financial support for such an appeal from organizations that recognize that innocent victims of crime, through no fault of their own, ought not to be subject to deliberate libel by national news organizations simply as a function of their victimhood.

–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces a series of Law of Self Defense Videocasts and Podcasts available on iTunes, Stitcher, and RSS).