Saturday, June 14, 2014
Good morning again:
George Zimmerman will be back in the news next week. NBC has filed a motion to dismiss his civil suit for money damages that he alleges were caused by their reporters misrepresenting what he said about Trayvon Martin to the police dispatcher during his recorded non-emergency 911 call. He specifically claims that their report transformed his race neutral call into a racist sounding call causing all of his subsequent miseries.
Game within the Game
I suspect the lawsuit was a bright shiny object intended to divert public attention away from George Zimmerman and place it on NBC and their reporters. It also served a secondary purpose by placing his counter-narrative in the public domain. O’Mara beat that narrative like a drum and the media dutifully reported it as though it were true. I think the strategy was successful because it influenced jurors’s opinions of the evidence.
I believe the lawsuit has served its purpose and NBC will win the motion, given Zimmerman’s profiling behavior, which is evident in his non-emergency call, including his “fucking coons” and “these assholes they always get away” statements.
I recognize that the prosecution claimed Zimmerman said, “fucking punks,” but I have listened to his call and it sounds to me like “fucking coons.” I believe they can hear as well as I do. I question the wisdom and propriety of conceding that he used the word punks instead of coons. I also would not have conceded that race had nothing to do with the case because I believe it had everything to do with the case and the jury acquittal.
The legal test at this stage of the civil case is whether, assuming his evidence is true, together with all reasonable presumptions that flow from it, is it enough to support a verdict in his favor.
I don’t believe it is because by word and deed he created the situation.
The jury’s acquittal does not mean there wasn’t probable cause (i.e., objective facts and circumstances that would lead a reasonable person to conclude that it was more probable than not that he murdered Trayvon Martin).
More importantly, Judge Lester’s finding of probable cause was not based on NBC’s reports. It was evidence-based. That is, he based his decision on Zimmerman’s recorded call, his recorded conflicting stories to police, evidence from the crime scene including the location of Trayvon’s body, which was inconsistent with his statements to police, and some recorded 911 calls and the autopsy report.
Therefore, even if NBC’s reporters got it wrong, and I don’t believe they transformed a race-neutral statement into a racist one, their conduct did not cause him to be charged.
He did not incur legal fees of $1 M because of what NBC did. He incurred those fees because of what he said and did.
He also did not request a pretrial SYG hearing and is potentially liable to Trayvon’s parents for Trayvon’s wrongful death, if they decide to sue him. Recall, for example, the families of the two victims in the OJ Simpson case who successfully sued him for their wrongful deaths despite his acquittal.
As a matter of law, the jury acquittal in the Zimmerman case means that there was insufficient evidence to prove his guilt beyond a reasonable doubt.
That does not mean there was not probable cause to believe he murdered Trayvon Martin and it does not preclude a finding by a preponderance of the evidence that he caused the wrongful death of Trayvon Martin.
How can that be?
Preponderance of the evidence is a significantly lower burden than proof beyond a reasonable doubt. Just as in OJ’s case, therefore, a person may be able to prove something by a preponderance, but not beyond a reasonable doubt.
The NBC misrepresentation, assuming it was a misrepresentation, did not cause any harm and we know that because nothing would have changed if it had never happened. Zimmerman would still have been charged, prosecuted and acquitted.
That is why the suit against NBC should be seen for what it was and dismissed. It was nothing more than a bright shiny object to divert attention and mesmerize.
I will take another look at this before Thursday’s hearing, which I anticipate will be livestreamed.
A few words about me: I rely on my 30-year experience as a felony criminal defense attorney and my three years experience as a law professor to analyze the game within the game explaining the applicable rules of law and procedure and the reasons why the lawyers and judges do what they do.
My goal is to assist readers to see through to the heart of a case despite the confusing turmoil of words and phrases that often conceal it.
To educate is to liberate.
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