Miles's blog

I feel sorry for Norm Wolfinger.  I don’t know him personally, but right now he is perhaps the most put-upon man in America.  Norm is the State Attorney who has jurisdiction over the death of Trayvon Martin.  Martin, as most of you know, was killed by a local neighborhood watch volunteer, George Zimmerman, who claimed self-defense.  The local police chose not to jail Zimmerman and have turned the case over to Wolfinger’s office for a decision. 

Martin was African-American and 17 years old.  Zimmerman, 28, has alternately been described as white and Hispanic.  Zimmerman used a 9mm semi-automatic; Martin was carrying nothing more dangerous than a bag of Skittles and a can of iced tea.  I have not seen any description of the relative sizes of these individuals, nor any indication of whether Zimmerman was injured.  I assume not.  Much has been made of Zimmerman’s decision to follow Martin after the 911 dispatcher told him not to.  Many people see racial motivations on behalf of both Zimmerman, and the police department who chose not to arrest him.  I guess there have been questions along these lines before about that department.

Wolfinger now has to deal with college student protests, a Facebook movement, and the always-blustery Al Sharpton.  The State Attorney has made the intelligent and professional choice to take this to a grand jury. 

Whatever the grand jury decides will not end Wolfinger’s discomfort.  Should they choose to indict he will be forced to prosecute a case for which, apparently, a minimal amount of independent evidence exists, and which will be very difficult to plea bargain.  Should the grand jury choose not to indict, Wolfinger will be faced with calls that his presentation was flawed, either as a result of racism or incompetence, and I expect his employment will be questioned come election time.  (I think this is an elected position.  If not, his employment would be questioned immediately.)

I am sure the satellite trucks are parked on every available inch of land near his office, and media vultures have descended on him.  His public information officer is now feeling like he is facing a press tsunami, and probably members of his office are questioned on their way in and out of work.

I do not speak from experience.  I personally was never involved in a charging decision of this magnitude.  I was on the fringes of some pretty big cases, and even worked for some offices that faced some media scrutiny, but I never actually was involved in anything like this.  From seeing friends and colleagues of mine who were I can only say I feel for Mr. Wolfinger.

Self-defense cases are extremely tough to evaluate because the law turns on whether the suspect’s actions were “reasonable” under the circumstances.  In situations like this no witness can directly contradict Zimmerman.  Often circumstantial evidence can be shown to be contrary to a professed claim of self-defense, but DNA will not solve this one.  Any jury looking at this, grand or petit, will be forced to fill in some blanks.  Strike one for the government unless their circumstantial evidence is strong or Zimmerman’s statement is just plain full of shit.

Law school problems often use the iconic “reasonable man” to evaluate behavior, but such a man does not exist.  To each person evaluating the actions of another, the only “reasonable man” is himself or herself.  We can only think like ourselves, even trying the mental exercise of putting yourself in Zimmerman’s shoes.  How many of us can truly say another’s actions, while contrary to what we would have done, were reasonable?  As prosecutors we develope the skills to utilize not just our personal experiences but our knowledge of how others have acted in similar situations to develop a barometer of reasonableness, but even for those of us with experience, such a measure is hard to apply.  I have never faced down another person while holding a gun in my hand.  Can I truly know how I would react with my finger on the trigger and fear in my heart?  And yet, Wolfinger’s grand jurors will need to decide just that.

Finally, the law of self-defense is seriously misunderstood, even by the so-called “experts” I have seen on television.  Most of them seem to have little familiarity with the concepts involved, focusing in on Florida’s recently-passed law eliminating the requirement to “retreat to the wall” but failing to truly think through the entirety of the law.  Colorado has always had no requirement to retreat to the way.  The killer has the right to act based upon what he knew or believed, or what he reasonably should have known or believed, based upon the circumstances at the time of the killing act.  Just because Zimmerman could have used his weapon perhaps to facilitate his escape, does not mean he had to run.  If a reasonable man in his situation would have believed he was in imminent danger of death or serious bodily injury at the moment Zimmerman pulled the trigger, the law provides protection, even if another course was available.  Only if the reasonable man would have run rather than fired does Zimmerman fail to have the legal right to kill.

Finally, everything Zimmerman did prior to pulling the trigger is not necessarily relevant.  In other words, putting yourself, through a series of bad decisions, into a situation where you are now faced with imminent death or serious bodily injury, does not remove your right of self defense.  Otherwise, victims who stroll though bad neighborhoods with pocketfuls of visible bills could not defend themselves from a gang of robbers.  Zimmerman clearly made a lot of very bad decisions, the change of any one of which would have prevented this tragedy.  But if the grand jury is properly instructed, they will consider those decisions only in the context of whether Zimmerman’s decision to kill was reasonable.  Police shootings often have the same context.  Often the officer has put himself, advisedly or otherwise, into a situation where he or another person, faces a real risk of death.  His decision to kill is justified, even if his actions were unprofessional. 

This last point I believe will be lost on those who want to see Zimmerman face the music.  Don’t get me wrong, I am not saying Zimmerman should not be prosecuted.  I have no idea what the facts are, and I have trouble envisioning a scenario where Zimmerman reasonably believed killing was required.  I once faced a jury evaluating the same question.  Defense counsel posed the question in his closing argument.  “What was my client supposed to do?”  I presented the jury the option in my closing.

“If your answer to that question is ‘kill’ then let him go.  If you believe that what he was supposed to do was kill the victim then let him walk out that door.  But if you think that a reasonable person would not have pulled the trigger, then find him guilty.”  

I suggest Wolfinger pose the question similarly.