Last night, the police released this video showing George Zimmerman shortly after he killed an unarmed Florida teen. I discussed the legal significance of the video on Countdown last night.
As I mentioned last night, the video would pose both strategic and tactical problems for a defense. First, the absence of obvious injuries would obviously undermine the claim of a reasonable fear of serious bodily injury or death in the use of lethal force. However, it would not be determinative on the question. Zimmerman was treated by paramedics at the scene who could testify that he was indeed bleeding. Moreover, the defense is based on a reasonable fear of such harm. If Zimmerman could convince at least one juror that Martin was the aggressor, he may be able to avoid conviction on this nebulous standard. This might be strengthened by a claim that Martin tried to grab his gun. However, the video shows a Zimmerman who appears unharmed and casual. At a minimum, it seems to contradict accounts that he was a bloody mess at the scene. That would put particular importance on the testimony of the paramedics and officers at the scene.
On a tactical level, my first thought as a criminal defense attorney was that the video could be viewed as admissible in a trial. It seems obviously relevant to the claim of self-defense. Yet, defense counsel (and judges) work hard to avoid jurors seeing a defendant in prison garb or handcuffs. The prejudice from such an image can be immense. This video of Zimmerman in handcuffs after the killing could present such a prejudicial impact, but still be viewed as admissible since the value of the evidence outweighs its prejudicial impact. The video leaves the impression of an immaculate assailment — where an individual fights for his life but shows no obvious injury.
While the 911 call has portions that help and hurt Zimmerman, this video is entirely detrimental to the defense in my opinion. I would not want a jury to see the video as a defense attorney but I would expect a judge to admit it as material to the question of self-defense. That does not mean that I would not try to keep it out. One claim would be that, since paramedics had cleaned him up at the scene, the video is misleading as well as prejudicial. Defense counsel could also point out that there is a reported four-hour delay the fight and this video. Finally, some have noted that one officer appears to check out part of Zimmerman’s head at one point on the tape. between A judge, however, could deny the motion on the ground that the defense can make that point through cross-examination and argument.
In the end, the prosecutor will have to decide on the viability of even a manslaughter claim based on the conflicting accounts of witnesses – and the generous self-defense standard in Florida. Courts have generally given shooters the benefit of doubts on the reasonable fear of grave bodily injury and self-defense. It is possible to use the privilege of self-defense before one is injured. It has also been used successfully in cases of an unarmed alleged assailant.
I still believe that there is sufficient evidence here to sustain a charge. However, as I have previously said, I have great reservations about the effort to pressure the prosecutor through petitions and political pressure — as well as recent irresponsible acts that border on vigilantism. I do not believe in prosecution by plebiscite and thus declined to sign the petition demanding prosecution. This video offers another piece of evidence that I believe supports prosecution. Yet, there remains difficult legal questions about the viability of a charge under the Florida standard and prior case law. The country and justice would be better served by an objective review of such evidence.
We still need to see the forensic evidence that I previously described as well as the statements of some of the witnesses like the paramedics. Many questions remain unanswered like the trajectory of the bullet, any fingerprints on the weapon, the extent of the respective injuries on the men, and the proximity and relative position of the gun when it was fired.