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Law of Self Defense: The Lies of the Zimmerman Probable Cause Affidavit

Law of Self Defense: The Lies of the Zimmerman Probable Cause Affidavit

There are two claims there, one an outright lie, and the other a fabrication.

This week’s Case of the Week is inspired by the so-called “documentary,” Rest in Power: The Trayvon Martin Story, produced by Jay Z and Trayvon Martin’s parents.

The first two episodes focus enormous attention on the fact that George Zimmerman was not arrested until April 11, 2012, 44 days after he shot and killed Trayvon Martin on February 26.

It’s all presented as if there is no possible rational and lawful reason for not arresting George Zimmerman. As if his guilt is the most obvious thing in the world, and only a racist police department and a racist State Attorney would refuse to make the arrest of a racist killer.

Never addressed, naturally, are the due process and civil rights that protect law-abiding citizens. Lawful arrests require the police to find probable cause of a crime.

It is, of course, undisputed that Zimmerman shot and killed Trayvon Martin. Not all killings, however, are crimes. A killing committed in lawful self-defense is legally justified and completely legal.

In evaluating whether probable cause exists, then, the authorities must conclude Zimmerman’s actions were probably unlawful based on the evidence they collect.

In Zimmerman’s case, there was literally zero evidence inconsistent with self-defense, a claim he made from the very start. There was also considerable evidence consistent with self-defense. As a result, the entirety of the evidence overwhelmingly favored the view that Zimmerman killed Trayvon Martin in lawful self-defense.

(Defense attorney Mark O’Mara during Zimmerman trial)

Ultimately, of course, imported State Attorney Angela Corey charged Zimmerman with second-degree murder anyway. How was she able to build a foundation of probable cause in a few days when Sanford Police Chief Lee and local State Attorney Wolfinger had not done so for weeks?

Simple: her legal team fabricated the “facts” to create probable cause where none existed. Their affidavit pointed to “evidence” that did not exist, and that they knew did not exist. Note that this false affidavit is a sworn document, signed by two of Corey’s investigators under the pains and penalties of perjury. (That affidavit is embedded below.)

For example, the affidavit states “Martin attempted to run home …” and later “…Martin who was trying to return to his home.” Nobody familiar with the facts, the timing of events, and the layout of the apartment complex can believe this to be true. Martin was a healthy 17-year-old football player. He had a full two minutes to cover 400 feet from his starting position to his apartment. Even an old, desk-bound attorney like me can cover three times that distance at a modest jog, much less in fearful flight.

The affidavit also says, “When the police dispatcher realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that, and that the responding officer would meet him. Zimmerman disregarded the police dispatcher, and continued to follow Martin …”

There are two claims here, one an outright lie, and the other a fabrication.

The outright lie is that Zimmerman disregarded the police dispatcher’s suggestion. As clearly captured on the recorded conversation, Zimmerman was immediately compliant when told by the dispatcher “We don’t need you to do that.” He said, “OK.”

The fabrication is that Zimmerman “continued to follow Martin.” The only reason Zimmerman got out of his car at all was that he informed the dispatcher that Trayvon had run out of sight behind a building, and the dispatcher asked Zimmerman to identify where Trayvon had run to. Unable to see through a building, Zimmerman exited his vehicle and went to peer around the corner of the relevant building. It was at this point the dispatcher made his suggestion, and Zimmerman complied. There is literally zero evidence—none—that Zimmerman “continued to follow Martin.”

The affidavit also states that “Zimmerman confronted Martin, and a struggle ensued.” This is a very serious claim of fact to make, but if true it guts Zimmerman’s claim of self-defense. If Zimmerman started the conflict, he lost the innocence legally required for a valid self-defense claim.

As you might expect by this point, however, Zimmerman’s confrontation of Martin is utter fabrication. There is literally zero evidence—none—that Zimmerman confronted Martin. To the contrary, all available evidence supports Zimmerman’s claim that he was ambushed by Martin.

http://www.inquisitr.com/812702/george-zimmerman-trial-shot-trayvon-martin-because-he-wanted/

It’s a scary thought that law enforcement and prosecutors might falsify an arrest and a murder charge against someone with no actual evidence of criminal conduct.

Here’s the good news, however—even when they do, the defendant gets their day in court, represented by legal counsel, to blow all the lies out of the water.

That’s what Attorneys Mark O’Mara and Don West did for George Zimmerman. And how were they able to accomplish this? It wasn’t just their legal skill, which is considerable. It’s also because Zimmerman gave them good facts. His use of force was, in fact, justified, making him hard to convict.

As we say here at Law of Self Defense, you carry a gun so you’re hard to kill, know the law so you’re hard to convict, by giving your lawyer good facts.

By the way, to my knowledge none of the people involved with creating and swearing out this lie-filled probable cause affidavit have ever been held accountable.

FYI, I’m currently doing a comprehensive critique/debunking of the Jay Z “documentary” “Rest in Power: The Trayvon Martin Story,” and funding that effort through an IndieGoGo campaign.  We’ve so far critiqued/debunked all three of the episodes aired to date, including lengthy written PDF reports (60-80 pages for each episode) as well as video critiques/debunkings for Episodes 1 and 2 (Episode 3 will be released tomorrow).  If you like to contribute to our efforts for as little as $10, visit:  lawofselfdefense.com/trayvon

Here’s that falsified probable cause affidavit in full:

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.

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Comments

“Rest in Propaganda” would have been a more accurate and apt name for this contemptible exercise in historical revisionism and mendacity.

The intellectual dishonesty of Leftists was laid bare — not for the first time — by their histrionic, fact-averse and biased appraisal of the Zimmerman incident. Leftists desperately wanted a martyr, and, they were determined to contrive one; facts, law and common sense be damned. Just as with Mumia Abu-Jamal, Joanne Chesimard, “Tookie” Williams, Michael Brown and the rest of the canonized rogues gallery of Leftist sociopath-saints.

That Trayvon Martin would still be alive, today, but for his willful, ill-advised and criminal decision to brutally attack and attempt to murder a complete stranger, never enters the Leftist calculus.

    JohnSmith100 in reply to guyjones. | August 18, 2018 at 6:30 pm

    Never forget that Thugvon was what he was because of piss poor parenting and culture. As long as society allows people like these to get away with bald faced lies, then they will never address issues dooming their children to short unproductive lives,

This case was orchestrated by the DOJ Community Relations Service in cahoots with Social Justice activist groups. It was the precursor to the legal travesties we see unfolding in real time. The original judge who was removed by the 5th District in Daytona beach said from the bench, ‘I thought we were supposed to be tamping this thing down’. There was no probable cause. In fact all the objective evidence pointed the other way to what it actually was. An attack by Martin out of the dark without justification. West and O’mara did a great job. The jury did a great job in the face of the mob.

And, another thought — Mr. Branca is, as usual, on point on this score. It should never be forgotten that this was a malicious and politically-motivated prosecution. That Zimmerman was ever tried, was, in and of itself, a gross abuse of prosecutorial and State power. The charging document is filled with blatant lies and misrepresentations; the political machinations of the prosecutors involved were as transparent as they were self-serving.

In a just world, the prosecutors would face severe sanctions, if not outright disbarment, for violating a slew of Bar-related ethical standards. These reprobates threatened the freedom and reputation of an innocent man, all to placate the Leftist mob and to sate its misguided and frenzied bloodlust.

    Elzorro in reply to guyjones. | August 17, 2018 at 9:38 pm

    This case was the foundation of the leftist substitution of Social Justice for American Justice. Fundamental criminal law change began here. We are experiencing the fruits of the case now. Political persecution in the name of law.

    Elzorro in reply to guyjones. | August 17, 2018 at 9:51 pm

    The above information was in lieu of an indictment. Corey knew she would never get an indictment from a grand jury with the evidence. This was after Wolfinger ran for the hills from the case. Corey of course was a ‘special prosecutor’. Sound familiar. Appointed to appease the Social Justice mob. Sound familiar? From the Sizzurp to Rachel, the witness in the closet. This travesty is the Mother of all the Current Travesties.

      Gremlin1974 in reply to Elzorro. | August 18, 2018 at 1:28 am

      Yea, especially when you consider that there was a Grand Jury seated at the time that she could have put the case before, but she chose to go another direction.

O’Mara, Don West and team are total legal heroes, as far as I’m concerned. They gave a master class in criminal legal defense that will be studied for a long time.

    Elzorro in reply to guyjones. | August 17, 2018 at 9:42 pm

    This is a timely project. Worthy.

    I think the world of Don West (with whom I’ve since become friends) and Mark O’Mara (whome I’ve never met). After the trial O’Mara basically said they won because they ought to have won that the evidence and law were clearly on Zimmerman’s side, and that’s true.

    Still, they COULD have POTENTIALLY screwed up. And they didn’t. It was a perfect legal defense.

    Kudos to both of them.

    –Andrew

    http://www.lawofselfdefense.com/patreon

      His motion to recuse Lester was a gem. He was a Federal Public Defender. His closing was spectacular.

      The evidence closest to the actual shooting was that a guy probably Trayvon, was sitting on top of another person, beating him up. The witness called for him to stop or he would call the police. The witness then went to the phone and started to call the police when Trayvon was shot, while Trayvon didn’t stop.

      Any objective observer would say it is open and shut.

        MajorWood in reply to RodFC. | August 18, 2018 at 12:48 pm

        It is the same with Michael Brown. When anyone started to argue that incident, I simply asked them if they had read the Grand Jury report. If they said “no,” which they always did, I told them we could discuss it after they had. No one ever got back to me. The same can be said all of the recent incidents with bodycam footage. Total outrage right up to the release, and then silence. Finally, a liberal idea where the unintended consequence was a positive.

The same thing is going to happen in Clearwater. The shooter is a jerk but he appeared justified when knocked to the ground and it clearly looks like he was about to have the crap kicked out of him.

    Elzorro in reply to snapper451. | August 17, 2018 at 10:07 pm

    No doubt the DOJ Community Relations Service is on the case.

    Maybe. That’s a much more marginal case than Zimmerman. I could argue either side with a straight face. I do, however, lean towards the shooter. None of this would have happened had he not first been rather viciously battered to the parking lot. McGlockton could have simply used his big-boy words. If that assault led to less than optimal decision making by Drejka, that’s on McGlockton. We’re not required to make PERFECT decisions in self-defense, we’re required to make REASONABLE decisions in self-defense, and then the state is obliged to disprove that conduct as reasonable beyond a reasonable doubt.

    So, a credible case of self-defense. Clear cut? No. Marginal? Yes. But I’d make it, without hesitation, and in good faith.

    –Andrew

    http://www.lawofseldfense.com/patreon

      the Drejka case is a very teachable moment. If Drejka had known the law and had used common sense, then he would not have pulled the trigger when he did and would not now be charged with homicide. That is the point. By waiting until McGlocton actually made a threatening, or any, movement in his direction, before discharging the firearm, he would have been the one testifying at McGlockton’s trial, not being a defendant at his own trial.

        Fen in reply to Mac45. | August 18, 2018 at 8:44 am

        “If Drejka had known the law and had used common sense, then he would not have pulled the trigger”

        That’s simply not true. You continue to assume facts not in evidence to prop up your opinion re the incident.

        That in itself should give you pause, if you take a moment to sit back and be truly objective.

        Reasonable people, replaying the video from a better perspective than the shooter (and without the fear and adrenaline he experienced) still express doubt that the victim was retreating. It’s not as clear cut as you pretend. The comments on that thread are 50-50.

        And I still can’t get a specific legal definition of “retreat” or “disengage”. But I know it’s not “two steps” back.

        If you say he retreated, I say he stopped his retreat

          Fen, I know you and Mac have a history of disagreement on the McGlockton shooting, but there is nothing in his post that I find objectionable, and I lean toward your assessment of the shooting. I have no problem with his assertion that “If Drejka had known the law and had used common sense . . .” this could have been preventable. It is also true that had McGlockton not assaulted some older skinny white a-hole, he would be alive today.

          Fen in reply to Fen. | August 18, 2018 at 10:45 am

          I find his assumptions objectionable. He tends to be a bit too casual with the facts, like asserting an “obvious” retreat and disengagement by the assailant that simply isn’t so, even from an elevated and perpendicular POV of the video camera

          Those of you who played organized football understand – the reciever is “obviously” open, from SkyCam perspective. But down on the field, on the same plane and amid the mileau, not so obvious, even to a Troy Aikman.

          He also refuses to take other contributing factors into consideration, like the fact that the shooter just had his Bell rung hard, his ears were probably ringing and his vision foggy from the prior assault.

          Then there’s the expectation that the shooter should pan 360 degrees in 2 seconds (two other potential assialants) process all of that information accurately In the Heat of the moment.

          Additionally, the fact that the silent just completed an ambush attack should be considered when Discerning whether his “retreat” (two steps back) is sincere or just another trick.

          I think the only thing that’s obvious is that this case is borderline as a justifiable self defense shooting. I could easily have taken his position but I feel that he is being so unfair that I must play Devil’s Advocate.

          Fen in reply to Fen. | August 18, 2018 at 12:10 pm

          Am I being a tad too aggressive? Maybe so, I can see that.

          Mac45 in reply to Fen. | August 18, 2018 at 12:55 pm

          Fen, his is an incredible attempt on rationalization, on your part. You continue to make assumptions which have no basis in observable fact.

          First you ASSUME that there is some significant difference in the perception of the incident based solely upon the point of view. In fact, Drejka said that he shot McGlockton because McGlockton moved his feet. However, the video does not show McGlockton moving toward Drejka at all. If anything, it appears that McGlockton is turning to his right, possibly in an attempt to move back toward the front door of the store and away from Drejka.

          Then, you ASSUME that because another customer, from the store, follows McGlockton down the sidewalk toward Drejka, that this party is somehow actively involved. Again, there is absolutely NO evidence to support this assumption. But, even if your assumption is true, and the second man was maneuvering around the rear of the parked car to attack Drejka, then drejka shot the WRONG man. He should have engaged the person who was “attacking” him, the second man, not McGlockton who had backed-off.

          Also, you continue to ASSUME that Drejka was somehow so stunned that he could not function efficiently. This flies in the face of the fact that he showed no hesitation in drawing and aiming his pistol a mere second after hitting the ground. Again, there is NO evidence to support your assumption.

          What you are attempting to do is to find ANY possible explanation which would provide a defense for Drejka’s actions. The problem is that, so far, no evidence exists that Drejka’s action was lawful. It such evidence existed, Drejka would not have been charged.

          I’ll go out on a limb here and predict that Drejka will not be acquitted by a jury, as Zimmerman was.

          Fen in reply to Fen. | August 18, 2018 at 3:37 pm

          “First you ASSUME that there is some significant difference in the perception of the incident based solely upon the point of view.”

          It’s not an assumption, it’s a fact. The video is not shot from the perspective of the shooter, therefore you cannot claim the video is an accurate representation of what a reasonable person in Drekka’s shoes would have witnessed.

          As evidenced by your very next sentence – you indaverdently admit there is a significant difference in perception:

          “Drejka said that he shot McGlockton because McGlockton moved his feet. However, the video does not show McGlockton moving toward Drejka at all. If anything, it appears that McGlockton is turning to his right, possibly in an attempt to move back toward the front door of the store and away from Drejka.”

          I have no animus towards you. And I’m not “assuming” the points I raised are automatically valid. I’m merely questioning why you won’t even consider them. You dismiss them too casually.

          Fen in reply to Fen. | August 18, 2018 at 4:00 pm

          “Then, you ASSUME that because another customer, from the store, follows McGlockton down the sidewalk toward Drejka, that this party is somehow actively involved”

          I did no such thing. I specifically said “POTENTIAL assailants”. And I am positioning myself in the shooter’s frame of mind – I don’t assume they were involved, I’m saying that it’s a factor Drekka had to make a split second judgement about: was he about to be ambushed a second time by more allies of the girlfriend? Would a reasonable person include that and his analysis of whether or not he should be in fear of death or grievous bodily injury.

          Fen in reply to Fen. | August 18, 2018 at 4:22 pm

          “What you are attempting to do is to find ANY possible explanation which would provide a defense”

          Yes, because you refuse to consider any such explanations. The standard is what a reasonable person in that situation would do. The standard is NOT what a reasonable person would do after calmly reviewing SkyCam Instant Replay frame by frame in the weeks that followed the incident.

          Hell, you’re damming another human and you don’t even have audio of the event.

          “no evidence exists that Drejka’s action was lawful.”

          You’ve got that backwards. The burden is to prove it was unlawful. You need to show that from his perspective after the ambush attack he just experienced, his actions were unreasonable. If you can’t even convince 50% of the commenters here, how do you expect a jury to unanimously agree?

          “It such evidence existed, Drejka would not have been charged.”

          You mean like Zimmerman? Or are you going to casually dismiss that fact too?

          DaveGinOly in reply to Fen. | August 18, 2018 at 4:33 pm

          Two words: Tueller drill.

        JohnSmith100 in reply to Mac45. | August 18, 2018 at 6:18 pm

        “If Drejka had known” I disagree with your assumptions. Drejka was on the ground in a very vulnerable position, his assailant was towering over him, no doubt snarling as he was contemplating kicking the living crap out of Drejka. He was acting like a rabid animal.

    In the Zimmerman case, Zimmerman was ACTUALLY HAVING the crap kicked out of him, when he fired. There was no MAYBE about it. It was a very clear cut case of self defense.

    Drejka, on the other hand was knocked to the ground and he drew his pistol; at which point the physical attack ended. THEN he fired. If Zimmerman had been knocked to the ground, drew his weapon and allowed Martin to back up several steps and then shot him, he would likely have been arrested and charged, just like Drejka, as well as standing a good chance of being convicted.

      Fen in reply to Mac45. | August 18, 2018 at 9:05 am

      “at which point the physical attack ended.”

      Paused. At which point the physical attack paused while the assailant reassessed his strategy. Refusing to raise his hands to signal surrender, refusing to retreat from engagement range.

      Your memory of the Martin shooting is also imprecise. Zimmerman was getting the s*** kicked out of him but he did not fire until Martin began to struggle with him for possession of his firearm.

        Elzorro in reply to Fen. | August 18, 2018 at 1:02 pm

        The defense will be interesting. I think they can win. There was another possible assailant circling and he did not have a good view of him to see if he was armed. Also the defrendant claimed in his statement…(never talk to the police)…that he was only looking at the knees of his assailant. I wonder if they will do a SYG defense or an affirmative self defense case? Don’t know if they can do both. They may not even put on a defense at all like in the Manafort case. Pinellas is a tough jury pool for the state to win. It also has good judges on the panel.

          Milhouse in reply to Elzorro. | August 19, 2018 at 11:24 pm

          SYG is irrelevant. There is no dispute that Drejka was unable to retreat, and therefore would not have been required to do so in any state.

      healthguyfsu in reply to Mac45. | August 18, 2018 at 10:36 am

      You do realize that you don’t have to be at the brink of death or in the midst of a vicious beating to meet imminent danger qualifiers correct?

      Yes, the Zimmerman case is more cut and dry, which makes the backlash even more frustrating, but it is not the minimum legal standard or any kind of “line in the sand” for self defense.

      Gremlin1974 in reply to Mac45. | August 18, 2018 at 3:52 pm

      I will make this point, just because there was an “end” an/or Pause and/or whatever to the physical attack that is not necessarily the same as ending of the imminent deadly threat.

      I have witnessed fights that seem to have “ended” and the next thing you know they are right back at it.

        I think it’s very likely that he just froze. He didn’t anticipate this he didn’t expect it he didn’t know what to do.

        Me? I’m raising my hands up and backing away and saying “easy tiger, easy tiger, Don’t Shoot Me, please don’t shoot”.

        I think if the victim had done that he would be alive today to tell his side of the story.

    JohnSmith100 in reply to snapper451. | August 18, 2018 at 6:43 pm

    Objecting to someone who is able bodied parking in a handicapped parking space does not make someone a jerk. I can’t say I know anything about him, but I have been on crutches or in a wheelchair at various times in my life, and I can attest to just how difficult it is to do things.

    Inconsiderate jerks parking in handicapped spaces is rampant, especially among blacks. I find it hard to understand the mentality, but crime stats do speak to it.

It seems that George Zimmerman might have a good defamation suit against Jay Z. Using the doctored tape alone seems to be enough to establish malice.

What’s the recent news on Drejka? I heard that he has a lawyer, but the lawyer is in trouble for solicitation ( not prostitution, but soliciting Drejka’s business ).

    I rather doubt the solicitation claim, but haven’t heard anything about it. Source?

    –Andrew

    http://www.lawofselfdefense.com/patreon

    Ah, the problem is that Drejka already had been assigned a public defender. Once a client has an attorney, if another attorney is interested in representing that client they first need to check in with the lawyer already “retained.” Lawyers are not supposed to “poach” other lawyer’s clients.

    In most cases the way to make this right would be to make sure the first lawyer was happy with some arrangement.

    –Andrew

    http://www.lawofselfdefense.com/patreon

      RSConsulting in reply to Andrew Branca. | August 17, 2018 at 11:29 pm

      Court records for Pinellas County show an indigent status conferred by the court. But there’s an appearance notice for what appears to be 3 separate private attorneys.

      The charging document is up on the clerks site also – and it looks pretty damning to me.

      OTOH – with Cump/Sharpton/et al on the scene – the decision to direct charge, was most likely to sooth the mob, and avoid problems. If the PCA was presented to a grand jury, they most likely would have indicted – had the case been presented the way the PCA reads.

      Again – the misperception between SYG, and use of deadly force in lawful self-defense )or defense of others) in the face of a forcible felony are two different issues.

      Deadly force justification statutes didn’t change in FL, when SYG became “the thing”.

      Originally, it was the legislature seeking to codify in statute “castle domain”, as certain SA’s were charging/prosecuting homeowners in cases of obvious self-defense in their homes – because “castle domain” as a principal, was not actually memorialized in statute.

      The legislature extended this “no duty to retreat” OUTSIDE of the home also (while they were at it), and this was called “SYG”.

      SYG is actually a motion hearing PRIOR TO ARRAIGNMENT, to prove lawful self-defense PRIOR TO A PLEA AT ARRAIGNMENT. It’s judge only (no jury), and if found valid – results in a dismissal of charges.

      GZ never used the “no duty to retreat/SYG” defense, because he was UNABLE TO RETREAT.

      As Andrew always mentions, SYG/Lawful Use Of Deadly Force – isn’t for when you start a fight/confrontation and start losing, then pull out a gun and shoot someone.

      As a daily carrier for 25+ years, ex-mil, and someone who’s pretty well versed in FL gun law (for a non-attorney), who has taken many courses in tactical handgun deployment (including “mindset and decision to shoot” phases) – Drejka DID NOT HAVE TO SHOOT – and will more than likely be convicted based on SURVEILLANCE VIDEO (multiple angles) and witness testimony.

      So folks don’t have to search – the Drejka charging document is shared on my google drive:

      https://drive.google.com/file/d/1vvTG2icftl_eI_1wAdL4oI7QAr9n9dtE/view?usp=sharing

      Rick

        Pretty close, but not quite accurate.

        First of all, the “Castle Doctrine” is the legal doctrine which states that a person does not have to retreat within their own home in the face of an unlawful physical attack, before responding with physical force. It has been around a long time. In 2005, Chapter 776 was changed to include the exception for retreat, before using physical force to defend against a physical attack, to any place where a person had a legal right to be. This was SYG. It also codified this exception to a duty to retreat within the home, kin FSS 776.013, as well as adding the conditions under which deadly force could be used within the home. And, while it can affect the legality of forcible defensive action, SYG does not control the lawful use of force in self defense.

        Also, there is no such thing as a Stand Your Ground hearing. What most people are talking about when they mention this is a hearing on a motion to dismiss charges by virtue of lawful self defense. The grounds for granting such a motion can depend upon several things, including whether the defendant had any duty to retreat. It occurs post-arraignment and pretrial.

          RSConsulting in reply to Mac45. | August 18, 2018 at 12:09 am

          Pardon my incorrect assumption (or rather, wording). SYG as a pre-trail evidentiary hearing (post arraignment, or first hearing where a plea is entered).

          Gratuitously stolen from a SYG attorneys site:

          Chapter 776, Fla. Stat., commonly referred to as the “Stand Your Ground” law, established a new right to immunity from prosecution when a defendant uses force in accordance with the specified prerequisites. The legislation is a powerful tool to have a case dismissed before trial when the person accused of a crime is entitled to statutory immunity from criminal prosecution pursuant to §776.032, Fla. Stat.

          Once provision for self-defense claims in Florida, §776.012, Fla. Stat., provides:

          “A person is justified in using … deadly force if … she reasonably believes that using … such force is necessary to prevent imminent death or great bodily harm to … another …. A person who uses … deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand … her ground if the person using … the deadly force is not engaged in a criminal activity and is in a place where … she has a right to be.”

          As passed in 2005, §776.032 did not provide for or refer to any procedural mechanism for enforcement of the new right to immunity. As a result, it did not allocate the burden of proof between the parties or state what the level of proof was to be.

          When deciding the burden and standard of proof, the trial courts and the appellate courts wrestled with these issues until 2015 when the procedure for a pretrial evidentiary hearing was first fixed by the Florida Supreme Court in Dennis v. State, 51 So.3d 456 (Fla. 2010) [35 Fla. L. Weekly S731b].

          In 2015, after an analysis of legislative intent and a survey of other statutory immunity proceedings, the Florida Supreme Court held that the defendant would have the burden of proving entitlement to the immunity by a preponderance of the evidence at the pretrial evidentiary hearing. Bretherick, 170 So.3d at 769. The Bretherick Court concluded that “[p]lacing the burden of proof on the defendant at the pretrial evidentiary hearing is principled, practical and supported by our precedent.” Id.

          The court, however, started its analysis by recognizing that the allocation of the burden of proof was an issue of statutory interpretation. Id. at 771. Justice Canady’s dissent presciently argued that the court’s allocation of the burden of proof was not consistent with legislative intent because it impoverished the benefit of the immunity by “guarantee[ing] that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.” Id. at 780 (Canady, J. dissenting).

          The Florida Legislature and Executive responded to Bretherick in 2017 by enacting and signing the Amendment into law which shifted the burden of proof to the State and elevated the burden from the “preponderance of the evidence” standard to “clear and convincing.”

          Although I still retain my contention that Castle Doctrine was being ignored in certain jurisdictions in FL, until remedied by legislative action in 2005, which further extended the nullification of any “duty to retreat” to outside the home also.

          I lived in NC in ’92 – and in fact – you had a duty there (under statute) TO RETREAT – EVEN IN YOUR OWN HOME. Scary concept. There was also no CWP’s at the time, but open carry. That’s since changed there also.

          Also – unless the assertions in the charging document for Drejyk can be disproved – or reasonable doubt can be created – he’s going away.

          Now – ANYONE CAN SAY that they were “in fear for their life”, in fact – everyone that discusses post-shooting behavior stresses this is absolutely what you should say (in addition to suggesting that peeing yourself, and asking to be taken to an ER to be examined).

          Apologies for any confusion I had/have – or may have created…

          R

          Mac45 in reply to Mac45. | August 18, 2018 at 1:29 pm

          Something to remember about the burden of proof at evidenciary hearings, the Legislature does not set such things, except in the case of the motion for acquittal by virtue of lawful self defense. In 2005, when the immunity hearing was ensconced in statute, the Legislature did not prescribe a model for the hearing or establish any burden of proof. It has long been held that this was intentional and was in keeping with the constitutional tradition that the courts had the authority to set procedures within the court, not the legislature. When the immunity hearing was finally finalized, it was structured exactly as is every other pretrial hearing in the state, with the party making the motion bearing the burden of proof to convince the court that it should grant the motion. The level of proof was a simple preponderance of the evidence and the court was only allowed to consider factual evidence directly related to the incident. Bretherick merely cemented the fact that the method of conducting the immunity hearing accurately reflected the normal procedure in such hearings. Canady, as you noted, gave a dissenting opinion, which is not binding. Also, he never addressed whether the Legislature could set burden of proof standards in a pretrial hearing.

          When the Legislature changed the law in 2017, setting burden of proof standards for an immunity hearing, it may well have encroached upon the constitutional separation of powers between the Legislative and Judicial branches. So far two circuit court judges have ruled that the Legislature lacks the authority, under the Florida Constitution, to tell the courts how to conduct a judicial proceeding. And, therefor, the standards for conducting an immunity hearing will follow those in place prior to the statutory change in 2017, until such time as the SCOF adopts the statutory standards.

          Here is the activist background on the immunity hearing. In the early 2000’s, firearms activists were complaining that prosecutors were ignoring evidence which clearly showed that lawful self defense existed and were charging people who used force in lawful self defense with a crime to be sorted out in court. So, they lobbied for a pretrial immunity hearing where the accused could have a motion of acquittal due to use of force in lawful self defense and not have to undergo a trial. This was perfectly acceptable. However, the activists, being activists, wanted to make it as difficult as possible for the state to prevail at such a hearing. They wanted the burden of proof to be beyond a reasonable doubt. However, such a case would very likely necessitate the state presenting its entire case at the hearing, in essence conducting a complete trial. Then, if the state prevailed, the defendant would suffer no penalty, as he would in a trial, and would still enjoy a second trial, this one with a jury. In other words, the activists wanted TWO bites at the initial trial procedure.

          RSConsulting in reply to Mac45. | August 18, 2018 at 2:39 pm

          Agree with your points mac45.

          At issue (for the “activists”), was not that prosecutors were “erring on the side of caution”, in charging people (everyone, in certain jurisdictions) in obvious cases of self defense in the home, but PERSECUTING people for exercising a basic human right (and a constitutionally protected one at that), to be able to defend their lives in their own castle.

          Many of these folks, who were found innocent/found to have acted in lawful self-defense, after lengthy and expensive court proceedings – found themselves jobless – due to incarceration and/or the perception of guilt by the state making then out to be killers. Penniless (and possibly homeless) due to the cost of defending these malicious prosecutions – with no recourse to recoup the expense of their own defense.

          Maybe folks should have just laid down and allowed themselves to be killed by criminals in their own homes?

          On it’s initial passage – I thought SYG went a little too far (and this, coming from a daily CWP carrier, and trained/practiced shooter, lifetime NRA member/instructor) – as there are many people who would be “too quick to shoot”.

          Happily – this turned out to not be the case – with perhaps, the exception of Drejka.

          Had his previous instances of brandishing been dealt with, he might not have been out there playing “armed handicapped parking police” (and I don’t even think he has a handicapped placard himself – though I do), there might be a guy with a couple of kids, still alive.

          And the right to SYG and defend yourself if need be, might not be under attack (again), as well as not having to have Sharpton/Cump/BLM circus come to town (again).

          In this particular case (if previous incidents documented are to be believed), we might be dealing with someone who actually likes calling black people ni99er – and thinking having a gun somehow protects him from getting his ass whipped for it.

          SYG doesn’t allow you to start a confrontation, then shoot your opponent when it escalates.

          Us lawful gun owners/carriers have a hard enough time, without asshats like this guy coming along and making us all look bad.

          Thanks for being civil, and clearing up some of my misperceptions (forced me to go re-read all of ss 776 again).

          Warmest Regards,

          Rick

      Does that apply to public defenders though?

        No lawyer wants another lawyer coming in on their own initiative and interfering with an existing client relationship, for reasons to obvious to list, and the Bar will support that position.

        –Andrew

      Elzorro in reply to Andrew Branca. | August 18, 2018 at 1:06 pm

      This seems fast for a bar complaint to become public to me. I thoiught they do prelim investigations before publishing and then it is in their Flabar mag page after action is taken?

The Hidden Motive. Trayvon thought Zimmerman was a Gay trying to hit on him. That is what I thought in the end. This due to the testimony of Rachel, the hidden star witness for Corey.

    Elzorro in reply to Elzorro. | August 17, 2018 at 10:03 pm

    Creepy Ass Cracker was the term she used. That is slang for white gay man. it was a Gay Bashing.

      RodFC in reply to Elzorro. | August 17, 2018 at 10:22 pm

      Utter bullshit. Everyone knew what Trayvon meant, but since using the perjorative “cracker” would have tainted St. Trayvon’s name, Trayvon apologist started claiming that “asscracker” was what he meant. Even the apologist didn’t really believe it.

      Mac45 in reply to Elzorro. | August 17, 2018 at 10:27 pm

      Exactly, Rod. Read the words this way “creepy-ass cracker” instead of “creepy ass-cracker” and you probably are probably far closer to Trayvon’s intended meaning, that he viewed Zimmerman as a “creepy” white guy.

      Milhouse in reply to Elzorro. | August 19, 2018 at 11:34 pm

      “That is slang for white gay man.” No, it is not. This is one of the bizarre ideas cooked up at Conservative NutHouse.

    Fen in reply to Elzorro. | August 18, 2018 at 8:56 am

    Did you get that from the girl’s “white-ass cracker” remark? That was as deceptive as “white-hispanic”.

    Nobody in his neighborhood talks about perverts or gays that way, “ass cracker” is not slang. It doesn’t show up anywhere else with that connotation.

    Change it to “white-ass bitch” and it makes better sense. And “cracker” is racial slang for white. Sure, it’s redundant, but as Rachel demonstrated on the stand, their education was so poor its Americal either one can speak in complete sentences. Rachel can’t even read cursive. I doubt she can read at all.

    Martin wasn’t defending the world from a white pedophile, he thought a “white boy” was getting too nosey and circled back to teach him to mind his own business.

Zimmerman’s life has been destroyed.

If I had been him, I would have moved far away and then changed my name…

Mr. Branca should start a “Go Fund Me” campaign to make a documentary that rebuts the POS fabrication discussed here. I will contribute $100 to start the ball rolling. Our views and voices need to be seen and heard by others to help right the wrongs created by Jz and the blood sucking parents.

With the advent of “political prosecutions” I have (unfortunately) come to the conclusion that I can no longer trust the justice departments of any jurisdiction. I already held a dim view of attorneys in general, but now I am absolutely suspicious of anything they say or do, A sad state of affairs – for certain.

    JohnSmith100 in reply to Sky2u. | August 18, 2018 at 9:42 am

    Lots of people have a dim view of attorneys, until they need one. The truth is that most attorneys are fine. But like all professions, there are some bad apples.

    Elzorro in reply to Sky2u. | August 18, 2018 at 1:11 pm

    This is going to show up in the jury pools. Judges already have their hands full trying to seat jury panels for all their cases. More defendants will go to trial rather than plead out. Costs will skyrocket. A prosecutor could make a ‘slam dunk’ case and the lose or get a mistrial.

Andrew: I did a very substantial post systematically documenting the major lies and disinformation in reporting on the Zimmerman case after the DOJ declined to pursue civil rights charges against Z. This was an opportunity for all the press outfits to recap their reporting and the pervasive lying was astounding to behold. You might find my survey useful. Link here:

Wednesday, July 15, 2015
Media still claiming that Trayvon Martin was shot while walking home from 7-Eleven but key revelation from trial was that Martin ran home first, then went back out, angry at “creepy ass cracka”

http://errortheory.blogspot.com/2015/07/media-still-claiming-that-trayvon.html?m=1

As you can see, I zeroed in on the big revelation from the trial (first reported by Andrew here) that after Martin took off running his friend Rachel Janteal, who he had been on the phone with, reconnected with him on the phone and, according to her testimony, he told her that he was back at his father’s house.

That means he was NOT going home when the fatal confrontation occurred but had gone back out FROM home, almost certainly in search of the “creepy ass cracka” Zimmerman.

The entire press corps acted like the trial never happened and it never came out that Martin was not headed home when the fight occurred. They all continued to claim he was headed home when they all know he was heading away from home.

This revelation was actually the most reported moment of the trial, when Janteal said “that’s real retarded sir. ” Indeed it was retarded. West was trying to discredit Janteal’s revelation that Martin had made it home, as if he didn’t realize that Janteal had just made his case for him.

Good for her for being annoyed. She probably didn’t like revealing something that would paint her dead friend as the aggressor. For the defense attorney to challenge her credibility on this revelation was a real Alice in Wonderland moment.

As a result no one reporting on the case could have missed it. THE high drama moment of the trial. Yet they ALL omit it from their summaries.

    RSConsulting in reply to AlecRawls. | August 18, 2018 at 12:13 am

    I loved the suspension that idiot Nancy Grace got, for repeating “f&%king coons” like 20X in the wrap up reporting immediately post verdict. For a tape that had been dissected by prosecution and defense experts, more than the sound of the gunshot(s) from the grassy knoll.

    This was when CNN had a smidgen of self-respect and credibility left (obviously zero left now).

    R

      “Fucking Coons” was obviously meant to lament the rash of frisky Racoons that had been sexually assaulting the local populace.

      Just like how “creepy-ass cracker” was a reference to gay pedophiles or something. 😉

        RSConsulting in reply to Fen. | August 18, 2018 at 9:40 am

        “Cracker” was an obvious reference to “white person”, “creepy ass” could mean any number of things.

        The entire key to the case – aside from all the data CTH exposed about “Angelic Little Trayvon” – which included the practice of the “new” Obama/Holder “Promise Program” (the diversion of criminal youth AWAY FROM the criminal justice system) – which would come back to haunt them, most recently in the form of Nicholas Cruz – was the fact that TM made it ALL THE WAY HOME, and returned to throw GZ a beating.

        Regardless of whether “that’s just retarded” Jeantel, blew the rest of the lid off the states case (or non-case, as the case may be) – watching Nancy get to say “Fucking Coons” a dozen times on LIVE TV (even though it was CONCLUSIVELY PROVEN that is not what was said), was my personal favorite “Nancy Grace Moment”.

        Just another example of how MSM no longer “reports the news”, but CREATES IT. Or as another “useful idiot, Mika Brezinski put it “…he could have undermined the messaging so much that he can actually control exactly what people think. And that, that is our job.”

        As long as we let the media control the narrative, and accept everything said as “indisputable gospel truth”, and cast our own “critical thinking” out the window – there will be no such thing as ACTUAL TRUTH BASED ON FACT.

        Something Branca clearly illustrates in this article…

        Rick

    Marcus in reply to AlecRawls. | August 19, 2018 at 2:39 pm

    Beautiful piece of work, Alec.

Andrew: I did a very substantial post systematically documenting the major lies and disinformation in reporting on the Zimmerman case after the DOJ declined to pursue civil rights charges against Z. This was an opportunity for all the press outfits to recap their reporting and the pervasive lying was astounding to behold. You might find my survey useful. Link here:

Wednesday, July 15, 2015
Media still claiming that Trayvon Martin was shot while walking home from 7-Eleven but key revelation from trial was that Martin ran home first, then went back out, angry at “creepy ass cracka”

http://errortheory.blogspot.com/2015/07/media-still-claiming-that-trayvon.html?m=1

As you can see, I zeroed in on the big revelation from the trial (first reported by Andrew here) that after Martin took off running his friend Rachel Janteal, who he had been on the phone with, reconnected with him on the phone and, according to her testimony, he told her that he was back at his father’s house.

That means he was NOT going home when the fatal confrontation occurred but had gone back out FROM home, almost certainly in search of the “creepy ass cracka” Zimmerman.

The entire press corps acted like the trial never happened and it never came out that Martin was not headed home when the fight occurred. They all continued to claim he was headed home when they all know he was heading away from home.

This revelation was actually the most reported moment of the trial, when Janteal said “that’s real retarded sir. ” Indeed it was retarded. West was trying to discredit Janteal’s revelation that Martin had made it home, as if he didn’t realize that Janteal had just made his case for him.

Good for her for being annoyed. She probably didn’t like revealing something that would paint her dead friend as the aggressor. For the defense attorney to challenge her credibility on this revelation was a real Alice in Wonderland moment.

As a result no one reporting on the case could have missed it. THE high drama moment of the trial. Yet they ALL omit it from their summaries.

“to my knowledge none of the people involved with creating and swearing out this lie-filled probable cause affidavit have ever been held accountable.”

This was the 2nd miscarriage of justice that came of this situation. All of them should have been disbarred.

Get the popcorn ready. Trevor Dooley will be in appellate court seeking retrial Tuesday:

https://www.tampabay.com/news/courts/Remember-Trevor-Dooley-His-stand-your-ground-case-returns-to-court-for-appeal-on-Tuesday_170896725

So, some enterprising reporter wanted to tie things together:

https://www.wfla.com/news/pinellas-county/widow-of-victim-in-2010-valrico-stand-your-ground-case-reacts-to-deadly-clearwater-shooting/1329192061

Who was the judge who gave the allegedly incorrect jury instructions and sentenced Trevor Dooley when the jury returned a “Guilty” verdict based on those instructions? Ashley Moody, who is currently running for Florida Attorney General:

http://www.tampabay.com/news/politics/elections/ahead-of-attorney-general-run-former-hillsborough-judge-ashley-moody-draws/2326230

Man, I need a purple drank

    JohnSmith100 in reply to Obie1. | August 18, 2018 at 6:09 pm

    Now that Thugvon is no longer cornering the market, you should not have any problem scoring some.

“If Drejka had known the law and had used common sense, then he would not have pulled the trigger”

That’s simply not true. You continue to assume facts not in evidence to prop up your opinion re the incident.

That in itself should give you pause, if you take a moment to sit back and be truly objective.

Reasonable people, replaying the video from I better perspective of the shooter (and without the fear and adrenaline he experienced) still Express doubt that the victim was retreating. It’s not as clear cut as you pretend.

And I still can’t get a specific legal definition of “retreat” or “disengage”. But I know it’s not “two steps” back.

If you say he retreated, I say he stopped his retreat.

    Mac45 in reply to Fen. | August 18, 2018 at 1:31 pm

    I;m sorry, but I am not the one ASSUMING facts not in evidence. Take a wild guess who is doing that.

      Fen in reply to Mac45. | August 18, 2018 at 3:43 pm

      But you are the one who was assuming he didn’t know the law and that he didn’t employ common sense. Facts not in evidence.

      Else provide proof that a) he didn’t know the gun laws and b) that he didn’t act with common sense.

      Fen in reply to Mac45. | August 18, 2018 at 3:45 pm

      You are also assuming that the victim was retreating. There is no evidence that he retreated. Taking a few steps back does not constitute a disengagement.

      The other guy, the one who turned around and ran away, it would be fair to assume that he was retreating.

      But without further Evidence there is no way you can know whether the victim intended to retreat or not. Speculation that he was merely reassessing the Tactical situation to reengage at advantage is just as valid as your speculation that he was trying to disengage.

      Now explain to me why you can entertain one assumption but not the other?

        Fen in reply to Fen. | August 18, 2018 at 3:46 pm

        And sorry for the grammar errors I have no idea why this phone is randomly capitalizing words.

Jack Cashill http://www.cashill.com/
The big lie in Jay-Z’s Trayvon series: Part 1 – WND.com
The big lie in Jay-Z’s Trayvon series: Part 2 – WND.com
The big lie in Jay-Z’s Trayvon series: Part 3 – WND.com

Jack Cashill http://www.cashill.com/
The big lie in Jay-Z’s Trayvon series: Part 1 – WND.com
The big lie in Jay-Z’s Trayvon series: Part 2 – WND.com
The big lie in Jay-Z’s Trayvon series: Part 3 – WND.com

    JohnSmith100 in reply to JohnSmith100. | August 18, 2018 at 9:45 am

    Weird how every once in awhile this system double posts on its own.

      ConradCA in reply to JohnSmith100. | August 18, 2018 at 12:08 pm

      Double posts happen because there is no lockout while a Post is being processed and sometimes it takes a while for the display to change while a post is being processed. You click the submit post button an extra time and post a second time.

You do realize that you don’t have to be at the brink of death or in the midst of a vicious beating to meet imminent danger qualifiers correct?

“Note that this false affidavit is a sworn document, signed by two of Corey’s investigators under the pains and penalties of perjury.”

“The pains and penalties of perjury” do not exist if perjury is not enforced. Our justice system in most places, like much of the rest our of government entities, has become bureaucratized and destroyed. The actors have enormous power, coupled with little to no accountability.

If I recall the PC affidavit part of the case was when Omara had just come aboard and was not fully engaged or briefed. Judge Lester threw him some curves and Corey snookered him at this point. He got West aboard and recovered to go on to a great win against the combined power of the State, Federal, and media forces.

Bitterlyclinging | August 18, 2018 at 1:29 pm

[“It’s a scary thought that law enforcement and prosecutors might falsify an arrest and a murder charge against someone with no actual evidence of criminal…”]

Hmmm? Robert Mueller and his posse

I presume the prosecutor is now working for Mueller.

The affidavit also states that “Zimmerman confronted Martin, and a struggle ensued.” This is a very serious claim of fact to make, but if true it guts Zimmerman’s claim of self-defense. If Zimmerman started the conflict, he lost the innocence legally required for a valid self-defense claim.

How so? He had every legal right to confront him, just as anybody has the right to confront anyone else. Supposing he did confront him, it would still be Martin who started the fight by reacting violently and unlawfully.

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