Since the first charging of the case involving George Zimmerman, I have respectfully disagreed with many friends (including on this blog) about the case which I believed was clearly over-charged as second degree murder. The trial has only magnified those concerns and I believe that the jury will acquit Zimmerman and would be correct in doing so. The reason is simple: reasonable doubt. Putting aside the understandable anger and the heavy overlay of social and racial issues in the case, an objective review in my opinion leaves reasonable doubt on every element of the charge, even the lesser charge of manslaughter which the court has allowed the jury to consider. First, let me begin by saying something that should not have to be said. I am not accepting Zimmerman’s account and I do not know what happened that night. I am not condoning Zimmerman’s actions. Rather, I am looking at the facts and I cannot see a single material fact on the elements that does not create a reasonable doubt as to what occurred. We don’t make social judgment or guesses on verdicts. While many have criticized Zimmerman for following Martin, citizens are allowed to follow people in their neighborhood. That is not unlawful. It was also lawful for Zimmerman to be armed. The question comes down to who started the fight and whether Zimmerman was acting in self-defense.

The facts on these questions are no more clear today than they were on that tragic night. Zimmerman’s account has been met by an alternative account from the prosecution. However, there is no objective basis to clearly reject one over the other. In other words, they remain in equipoise and that is not a sufficient basis for a conviction.

I was frankly astonished that the prosecution did not have any stronger evidence and, as I mentioned earlier, I believe that the court failed to address the withholding of evidence from the defense.

Many people were highly critical of the prosecution for putting on what seemed like a case for Zimmerman. The reason is that there was not a strong case for conviction on the basis that Zimmerman did not “reasonably believe” that the gunshot was “necessary to prevent imminent death or great bodily harm” to himself. Various witnesses said that Martin was on top of Zimmerman and said that they believed that he was the man calling for help. He had injuries. Not serious injuries but injuries to his head from the struggle. Does that mean that he was clearly the victim. No. It does create reasonable doubt on the question of the struggle.

There is also no evidence as to who threw the first punch or committed the first physical act in the struggle. I do not understand how, under the standard jury instruction, a juror could simply assume Zimmerman was the aggressor. Zimmerman was largely consistent in his accounts and his account was consistent with some witnesses. After 38 prosecution witnesses, there was nothing more than a call for the jury to assume the worst facts against Zimmerman without any objective piece of evidence. That is the opposite of the standard of a presumption of innocence in a criminal trial.

Rather than charge manslaughter, the prosecutors seemed to yield to the political pressure and charge second degree murder. Under that charge, they needed to show Zimmerman had the intent to kill and did so with “depraved mind, hatred, malice, evil intent or ill will.” They fell substantially below that mark. Witnesses said that both men used derogatory terms, including Martin’s reference to Zimmerman as a “cracker.” The first witness for the prosecution was in my view a disaster and admitted to previously lying under oath. The prosecution witnesses largely portrayed a consistent account from Zimmerman and even favorable views of him from some witnesses.

In the end, the only way I could see a conviction would be to discard the standard of a presumption of innocence and embrace the invitation of the prosecution to assume every fact against Zimmerman despite conflicting testimony from witnesses, including the prosecution’s own witnesses. Even for manslaughter, the jury had to find that George Zimmerman intentionally committed an act or acts that caused the death of Trayvon Martin but was told that “a killing that is excusable or was committed by the use of justifiable deadly force is lawful.” The jury instruction on deadly force states in part:

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself. In deciding whether George Zimmerman was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing George Zimmerman need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, George Zimmerman must have actually believed that the danger was real.

This lesser charge still brings the jury back to the question of who started the fight and how the fight unfolded.

The prosecution consistently overplayed its hand in a desperate attempt to overcome its own witnesses. For example, with an officer stating repeated that Martin’s Dad said no to the question of whether it was his son calling for help, the prosecution insisted that he was saying “no” as a type of denial of reality in hearing the tape. His dad said that he had to hear the tape about two dozen times to change his mind. Even after being criticized by many experts for overcharging the case, the prosecution proceeded to make a demand at the end of the trial that the jury be able to convict Zimmerman on a different crime: third degree murder based on child abuse. The judge wisely rejected that demand but allowed the jury to consider manslaughter as a lesser charge.

The instruction on reasonable doubt given to the jury is as follows:

George Zimmerman has entered a plea of not guilty. This means you must presume or believe George Zimmerman is innocent. The presumption stays with George Zimmerman as to each material allegation in the Information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

To overcome George Zimmerman’s presumption of innocence, the State has the burden of proving the crime with which George Zimmerman is charged was committed and George Zimmerman is the person who committed the crime.

George Zimmerman is not required to present evidence or prove anything.

Whenever the words “reasonable doubt” are used you must consider the following:

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find George Zimmerman not guilty because the doubt is reasonable.

It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.

A reasonable doubt as to the guilt of George Zimmerman may arise from the evidence, conflict in the evidence, or the lack of evidence.

If you have a reasonable doubt, you should find George Zimmerman not guilty. If you have no reasonable doubt, you should find George Zimmerman guilty.

Here are all of the jury instructions.

There is, in my view, no objective basis for an abiding conviction of guilt on either second degree murder or manslaughter. The prosecution’s case remains more visceral than legal in effectively asking for a presumption of guilt. Zimmerman should be acquitted on that basis.

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