In Self Defense Podcast 119: Legacy of the Zimmerman Verdict – Part 1

Attorney Michael Panella joins Don West and Shawn Vincent to talk about the legacy of the George Zimmerman case on the 10th Anniversary of the trial. Today’s conversation covers how public scrutiny affected the justice process, jury selection, and the decision to charge George in the first place. 

 

Transcript: 

[00:00:21] Presenter: This is the In Self-Defense Podcast with Don West, Steve Moses, and Shawn Vincent, exploring high-profile self-defense cases and identifying the lessons learned for concealed carriers.

[00:00:40] Shawn: Hey, everybody. This is Shawn Vincent. Thanks for listening in to the podcast today. I’m recording this in the very hot, hot summer of 2023 and that means, believe it or not, it was 10 years ago that we had the Zimmerman trial. I’m referring, of course, to the high-profile prosecution and criminal defense of George Zimmerman for the shooting of Trayvon Martin. You guys know, if you listen to the podcast regularly, that Don West, he’s the National Trial Counsel for CCW Safe, he was co-counsel on the Zimmerman case.

That’s where I met Don. I worked with him on the Zimmerman case and that’s my first experience with working with criminal defense lawyers. I fell in love with it. I’m a passionate advocate, have been ever since. That set up my career as a litigation consultant, which has gone on for 10 years now, and I’ve had a chance to do amazing work, including hosting this podcast, doing research, and work with CCW Safe.

We got together in Central Florida in June of this year, which would have been one year exactly from when we were going through the long process of picking a jury for the Zimmerman case. We were joined by our friend and colleague, Michael Panella. Also, if you listen to this podcast, you might have heard us interview Michael Panella on the [unintelligible 00:02:08] case. That’s an extraordinary self-defense case that Don and I got to work with Mike on. That’s a getting the band back together kind of thing.

Mike was a law student 10 years ago. You’ll hear him say that he actually graduated with his law degree just weeks before the Zimmerman trial started. He was a law clerk on the case for almost the entire prosecution, came on board just weeks after the arrest of George Zimmerman. I was actually on the case before Don was brought on the case. Mike’s an amazing criminal defense attorney. I always say that if I got in trouble, I’d want Mike and Don to be my criminal defense team. Their insights are fantastic.

We had a chance to get together and reminisce about the Zimmerman case and then talk about what the ramifications of that case have been on how our society frames the conversation about self-defense and the legal aspects that surround it. We had a long conversation. We’re going to get two or three podcasts out of our whole conversation today.

We’re going to start off with a conversation about the circus that surrounded the trial, the security that was required, the amount of press coverage that happened at the trial, and how throughout the entire defense, the high-profile nature of it turned what you normally expect out of a criminal defense case on its head. We’re also going to talk about– there was a controversy about how it took 45 days for George Zimmerman to be arrested for the shooting of Trayvon Martin, why it’s not an injustice for a defender to not be arrested right away, and why that can often be an important strategy for the prosecution.

There’s a parallel with a case that’s currently happening here in Central Florida 10 years later. We’re going to talk a little bit about the decision the prosecutors made to charge George at all, and what we have always contended was a completely clear-cut, justified use of force. They charged him with second-degree murder.

There had been a trend with prosecutors overcharging high-profile self-defense cases, sometimes we believe caving into social or political pressure or pressure from the “victim’s” family to get justice by getting a quick arrest and arrest for a high charge, sometimes, and we have some examples of this, overcharging a case can because an acquittal where charging something lesser, like manslaughter, or as Mike Panella notes, even aggravated battery with a weapon is a tougher case to defend and could more likely result in a conviction.

These are all interesting discussions. If you know anything about the Zimmerman case or followed it at all, or have been watching what’s going on with self-defense in the media in the 10 years since, and as concealed carriers, I think there’s a lot of interesting considerations here that you should be aware of because these are factors that would likely play into how your post-shooting experience might go should you ever have the misfortune of having to be in a self-defense incident. We’re going to start our conversation off today with our dear friend and well-regarded colleague, Mike Panella, talking about his experience on the first day of trial. Thanks for listening. Here’s Mike.

[00:06:17] Michael: What sticks out in my mind and still does, and I don’t know that I’ll ever have this experience again, was showing up to that courthouse that I had just graduated law school some two weeks earlier. At this time, 10 years ago, I graduated law school.

[00:06:35] Shawn: You were a law clerk during the time you worked on the case.

[00:06:38] Michael: Yes. We were together for the entire preparation of the case, and certainly, I was on that and a part of that, but for my first trial experience, I remember going to that courthouse that we had been to so many times and that I’ve been to probably hundreds of times now, and the helicopters, the helicopters in the sky. I’m thinking, “Is this what a trial is?” Just the amount of intensity that surrounded that place, and it just felt like someone could truly get hurt here. The fact that the Seminole County Sheriff’s Office put four, as I recall it, helicopters guarding each corner of the– do you remember this?

[00:07:30] Don: I do.

[00:07:31] Shawn: At least one of those was a news helicopter also.

[00:07:34] Don: That’s the other side of it, is there was the security force there, including the people on the roof when necessary and that sort of thing. Then there was also this corral, maybe, I don’t know, staging area for the media vehicles, the trucks from all of the major media outlets.

[00:07:52] Michael: Commandeering the entire front parking lot of the courthouse.

[00:07:58] Shawn: They built essentially temporary sound stages for all of their coverage. In fact, CNN and HLN at that time had multiple stages that were facing the courthouse for each of their broadcasts to have that access.

[00:08:15] Don: Throw that into the mix, along with there were 700 jurors summoned to the courthouse for jury selection. I think 200 of them were going to take care of everything else that was going to happen for the next month and 500 designated to get started with on the Zimmerman case.

[00:08:36] Michael: Right, that’s what I thought. I thought that our case alone had 500.

[00:08:39] Don: It did.

[00:08:41] Michael: Yes, and everything else. As you say that, perhaps people don’t know, a lot of times in circuit court, you have more than one judge that may be in trial at any given time. The way Seminole, this particular county did it, is there was four circuit courtrooms at the time. Now I believe there’s five circuit criminal judges, maybe even six on rotation, but at the time, there was four, as I recall it. Any one of those judges would have had a trial week while we were having our trial.

[00:09:13] Don: County court as well.

[00:09:14] Michael: County court as well.

[00:09:15] Don: That’s where a lot of trials take place in county court and need just as many jurors as the circuit court, the felony courts. That’s where they try the DUI cases, the shoplifting cases, and misdemeanor, batteries.

[00:09:27] Michael: Yes. They had another four county court judges going at that time too.

[00:09:31] Don: There’s no reason to think there weren’t civil trials.

[00:09:34] Michael: That would’ve been at the other courthouse.

[00:09:35] Don: That’s right. The way that they’ve got this criminal justice center near the jail.

[00:09:41] Shawn: Near the jail.

[00:09:42] Don: The civil courthouse downtown Sanford. I don’t mean that sarcastically, but Sanford’s a pretty small town. Not much of a downtown. There’s a courthouse and a few shops.

[00:09:55] Michael: Which is also what I think led to making this, if you had ever been there before, showing up that day, showing up 10 years ago with all of the preparation and all of the intensity that went into it from our side, and then seeing that met with equal intensity from law enforcement and the preparation that the county had put in to making sure this thing went about as smooth as it possibly could with a prosecutor’s office that didn’t even go here, that was appointed from the governor from a different part of the state that had to set up shop.

All of the protests and all of the people and the confused jurors, it just created a sense of something very, very serious is happening today. I think that feeling carried through even after that trial was over.

[00:10:49] Shawn: That’s nicely put, Mike. I remember an early preliminary hearing in the case, and the judge had this– there’s a docket sounding, essentially, right? Just scheduling. Often in the criminal court, when you have one of those, there’s a whole morning set up for that. The judge is just going to see a bunch of people, there’s a rotation of lawyers, some of them from the public defender’s office, some of them from the prosecutor’s office.

[00:11:14] Michael: Yes, the judge wants to go through every case on her docket and know what’s going on with it. Rocket docket, they’re calling every single name and saying, “What do you need? Are you going to trial? Are you going to–“

[00:11:23] Shawn: You show up and you get a number, essentially. You’re number 12. You can go chat in the lobby for a few minutes with other lawyers and time when your case calls up.

[00:11:36] Don: That’s very valuable time because that may be the only opportunity you’ve been able to get face-to-face with the prosecutor to talk about the details of the case in terms of planning and including even plea negotiations. Lots and lots of cases are resolved in that five minutes that you might get waiting for your turn.

[00:11:55] Michael: Absolutely.

[00:11:56] Shawn: Then what happened is that– this is one of the early hearings in this case, the whole world’s watching, the huge press corps is there to cover this hearing and the judge is like, “Well, we’re going to treat this like any other criminal case,” was his idea. That was Lester at the time, right? I believe. Became very clear, all these other cases just going on and the whole press is there looking at it. It was clear then that it was going to be chaos and that we absolutely have to treat this case differently because it just can’t function in that environment.

That environment is– something really important is going on here. It was the eyes of the world were on it and then the court adapted very quickly to that, I think, and we had our own hearings. We had our own days where things were going to go, and I think that’s not typical for cases that you try, Don. As a team, we had to adapt to that attention as well.

[00:12:57] Don: That’s right, and as we got closer to the trial, we had our own entrance. They didn’t want the trial teams going through the front door where the crowds were and the risks of security, so they made a special accommodation for us to go through a back door and go through our own security. I have nothing but praise for the way the security was handled.

[00:13:18] Michael: No, they were amazing.

[00:13:19] Don: Seminole County Sheriff’s Office, just excellent.

[00:13:24] Michael: Not to mention giving us our own basement, a spot in that courthouse that I didn’t know existed.

[00:13:30] Don: Yes, we didn’t have any offices in there. The state attorney did, so the visiting state attorney prosecuting the case had accommodations. They had really anything they could want, and we just needed a place for our boxes and boxes, and we had lots of staff. We had the trial team and the support and interns and investigators.

[00:13:54] Shawn: A windowless cinder block room that was, I’m going to guess, about 15 by 30 maybe.

[00:13:59] Michael: It’s just that I– Don’s saying he’s got nothing but praise for them, and I agree. I think that was the best they could do. they found us a room.

[00:14:09] Shawn: I wasn’t complaining about the–

[00:14:11] Michael: Yes, it was a basement. It was a basement underground underneath the Seminole County Criminal Justice Center.

[00:14:19] Don: I was very glad that it was windowless frankly because that was one less thing to worry about. We had enough on our plate. I had my computer system shut down, my email system shut down because of the emails, and a lot of them were pretty nice and pretty friendly and encouraging, and a lot of them weren’t. A lot of them were threatening and frightening and lots of mail.

We had issues to be concerned about ourselves for our personal security as well as the security and the integrity of the process itself, and of course, then in jury selection, we wound up having to deal firsthand with jurors that had their own agenda. We had lots of people connected with the case that had their own agenda, their own goal perhaps, and we realized firsthand in jury selection that there were people there that were willing to do anything, including commit perjury, to get on the case.

[00:15:15] Michael: I remember that the day before that happened. It seemed like you had a hunch, and I don’t know if you went back to Mark’s office or where you went, but you had stayed up on your own and did some research into some of those jurors, especially the one that you were concerned about, right? Isn’t that how it happened?

[00:15:36] Don: Yes, just to round that out a little bit, we had a jury consultant, an expert in selecting jurors, a fellow named Robert Hirshhorn, that was a fellow that I had worked with a number of years before in a very, very serious case. He came on board, so many of the support help we got without demanding the money upfront, people that saw the case, and once they got through a lot of the noise surrounding it, really saw that this was not the kind of case that had been portrayed, at least initially, in the media.

Robert came on board and was helping us pick a jury. We were going through all these prospective jurors and their questionnaires and trying to get a little information on them, and this one particular juror, Robert said, “We don’t want him.” That’s what he gets paid for when he gets paid, is to tell us, “I don’t think you want this guy,” and he had his reasons for it, and he said, “But I can’t find any way to get him off the jury.” You get cause, challenges if somebody does or says something that clearly makes them disqualified or biased in some way.

I said, “I’ll bet you a hundred bucks that I can get him off without using a preemptive challenge,” because we wanted to protect our preemptive challenges, and he goes, “I’ll take it.” That’s when it prompted me to go do some research.

[00:17:01] Michael: That’s what it was. You were trying to win a bet.

[00:17:05] Don: Well, that was–

[00:17:05] Michael: No, I know. At the end of the day, you were preserving– you also probably realized we don’t want this guy.

[00:17:10] Don: Oh, without a doubt.

[00:17:12] Michael: It became a mission to figure out how.

[00:17:15] Don: Exactly. The challenge was, we know we don’t want him, and we’re going to have a choice. We’re either going to have to use a preemptive challenge, which we only have a handful of, which means there’ll be another juror we won’t be able to use it for if we really don’t like that person. Of course, if there’s a cause challenge granted by the court, that means there’s a legal reason why that juror isn’t qualified to sit. My goal was to find a way, lawfully and ethically, to get the judge to disqualify him on the basis of cause, not one of our discretionary, preemptory challenges.

[00:17:52] Michael: Was the word that you were hunting for in hopes that you could get the judge to grant a cause challenge for him, in your mind, were you looking for the word enema? Were you going online saying, “I hope if I can get that word–“

[00:18:06] Don: You did not like this guy either, did you?

[00:18:09] Michael: I hated this guy. That was what he said. That was literally his quote.

[00:18:13] Shawn: This town needs an enema?

[00:18:14] Michael: He said this town needs an enema, and he had this entire thing about the Seminole County Sheriff’s Office and how they should have made the arrest of George sooner and all this other crap. As I recall it, I think that it was a post he made inside of a group on Facebook that you just followed the breadcrumbs and found that.

[00:18:39] Don: We did learn almost immediately that people were minimizing their social media involvement in the case, that people had often taken aside pro-Trayvon, pro-George. Some of them had donated to the various funds that were out there. Then when they got in the jury room, in the box for the questioning, had minimized their involvement, and some just either denied it, lied about it, or what have you.

We just had a feeling that the way this juror was presenting himself– Now, what we’re talking about is from one day to the next, as I recall. We knew a lot about him, but we couldn’t come up with a way to get him disqualified because he was saying all the neutral, non-committal things, but he did clearly deny that he had ever taken a position publicly on one side or the other. None of us really necessarily believed that.

That was where I was headed, and through a combination of some words and some searches, I just hit. I hit on a post or two that he had made that you’ve been describing where he clearly was ranting about the case, and not only would that have disqualified him because of the clear position he had taken on it, but then he had obviously lied about it. When confronted with that, we had the printout from the social media post, he did admit, he authenticated, if you will, and he was done for at that point.

He was lucky on two scores. He was lucky he wasn’t immediately held in contempt. He was disqualified. I won my hundred bucks. I think, the state attorney gave some passing thought to prosecuting him for perjury because he clearly had lied to the court. That never went anywhere.

[00:20:32] Michael: The judge could have held him in direct criminal dispute.

[00:20:34] Don: Absolutely, yes.

[00:20:36] Shawn: The judge wanted to get the jury picked and wanted to get this case tried.

[00:20:39] Don: Didn’t want another sideshow.

[00:20:40] Michael: Right. As I recall it, there was another sideshow, though. He was trespassed from the property and came back. Law enforcement from– actually, the courtroom deputies had to go and escort him off the property again. He was ranting out there and creating all kinds of problems.

[00:20:59] Don: I think that just highlights what was symptomatic of a lot of the experiences that we had. They were so different than any experience I’d had over 30, 35 years of trying criminal cases. It was as if this case was flipped on its head, people lying to get on a jury as opposed to trying to get off. Really bizarre.

[00:21:24] Shawn: One of the things that guy had ranted about online was that he felt that George Zimmerman should have been arrested sooner. The fact that George wasn’t arrested for 45 days, a lot of people, led by civil attorney Ben Crump, said that that’s an injustice. Now, here we are ten years later. There’s another central Florida case where a white woman has shot, a Black woman over a dispute that was at her front door. It took four days for them to arrest the shooter.

During those four days, Ben Crump and a lot of other people were saying, “This is injustice. Arrest her now. Clearly, she shot someone and they died,” that somehow the idea that she could have a self-defense claim in her home and not be arrested immediately is a travesty of justice. I think it’s worth talking about why that’s not. Why– how that works–

[00:22:40] Don: You mean how justice is not necessarily served by arresting somebody immediately?

[00:22:44] Shawn: That’s what I’m trying to do.

[00:22:45] Don: Why there might be some value to the case or to the individuals or to the ultimate determination of whatever justice becomes in that case to make a decision, a purposeful decision, not to arrest someone.

[00:23:01] Shawn: Yes, while an investigation goes on.

[00:23:02] Don: Right. Sure.

[00:23:04] Michael: A local TV affiliate recently approached me about the case you’re talking about, if it’s the one that I’m thinking of, where she shot the woman from behind the closed door in her own house.

[00:23:13] Shawn: Yes.

[00:23:14] Michael: Yes, I’ve commented on this on TV a little bit. I thought about the very question you’re speaking to. I didn’t know that Ben Crump was involved, at least when I was commenting. He wasn’t being represented as the family’s attorney. Another attorney was. They were demanding the arrest and they were demanding particular charges be brought. I think what they were asking for was second-degree murder.

The question was posed to me, “Look, what are your thoughts about these particular charges? Do they make sense under the facts?” The facts is I understood them. Again, this case is pretty new. It was two neighbors. They had prior history. The defendant, the person who is now the defendant, had said nasty, maybe even racist things to the decedent over time. The decedent had some history too, though, of being pretty aggressive and nasty toward the now defendant.

There were children involved. I think the decedent had a couple of kids that allegedly the defendant had threatened because they kept being on her property. There’s all kinds of crap that went along in this particular case. I’ll tell you, if there’s one thing that the George Zimmerman case taught us, it’s don’t believe what you hear in the media.

My first– just a total disclaimer, I’m not representing anybody in this case. What I will say is just from what was presented to me in the reports that I’ve read, I was saying, you might want to be careful what you wish for, family of the decedent because they’re out here demanding particularly heavy charges against the woman because she shot a gun and killed someone. To me, just because someone is dead and you’re responsible for the killing doesn’t make it murder. I think that’s why this podcast exists. While it may be true that the defendant is guilty of something, by seeking really first-degree murder or second-degree murder and saying it’s somehow not justice if those charges aren’t brought may turn out to create a scenario that has the exact opposite effect for the decedent’s family when that person gets acquitted because the charge was incorrect.

To your point right now, I think that law enforcement taking their time to bring what is appropriate for charging and not taking a knee-jerk reaction may ultimately lead to a better resolution all around if your goal is to seek a conviction. I think it’s the Casey-Anthony problem all over again. It happens all the time.

[00:26:02] Shawn: Let’s take a minute. This is something I was really hoping to talk about. I want to see what your thoughts are, Don, because we’ve talked about this in cases that we’ve watched since Zimmerman. Two things here. One is we talk about how practically every self-defense case that pops up in the news is an echo of George Zimmerman, or at least people think of the Zimmerman case in context with that, often as referenced, whether it’s just controversy over the idea of Stand Your Ground or Castle Doctrine or controversy over the fact that anyone could ever shoot anybody justifiably and that they would be given any benefit of the doubt for it.

When we talk about the significance 10 years later in the Zimmerman case, we see it in the news all the time, still reverberations of that. One thing I really got watching other high-profile cases be prosecuted afterwards is that prosecutors started to figure out that if they overcharge in a self-defense shooting, they charge first-degree when it should be really second-degree, or they charge murder when it really should be manslaughter, they end up trying the wrong case in front of a jury, and then they lose. Whereas we saw with the Michael Drejka case, they realized– this is the parking lot shooter, right?

[00:27:32] Don: The handicapped parking spot, those that will remember in Clearwater, Michael Drejka was arguing with a woman behind the wheel of a car while her boyfriend was in the convenience store buying some things. She was in a handicapped parking place and he took offense to that and confronted her and they were arguing back and forth. The boyfriend, McGlockton, I think was his name, came out and I don’t know that they had words. We saw a video, we didn’t hear what was said on that video, but he wound up violently shoving Drejka to the ground.

There’s no question that McGlockton committed the first crime by shoving him hard to the ground. Drejka is laying on his back with this fella, pretty tall, fit, younger man, hovering above him and Drejka draws his licensed weapon. He had a permit to carry the weapon, draws his licensed weapon, aims it, and fires, one time, shooting and killing– is it Marcus McGlockton?

[00:28:33] Shawn: Markeis McGlockton.

[00:28:34] Don: Markeis McGlockton.

[00:28:36] Shawn: He wasn’t arrested right away. The Pinellas County Sheriff cited standing your ground, meaning that he had immunity unless they really could meet their burden and they weren’t going to make an arrest. Eventually, they did after, I believe, a couple of weeks of investigation. When they charged him, I was interested to see they charged him with manslaughter.

Now the community and the family were asking for murder charges. They felt that the manslaughter charge was an injustice. They got that conviction, and I think that’s a much harder conviction to get if they had actually accused this guy of murder because the facts just didn’t really support it. Manslaughter was a much better charge for that case.

[00:29:26] Don: Oh, sure. What separates second-degree murder from manslaughter is this additional mental state. Mike knows it very well, the ill will, hatred.

[00:29:35] Michael: Depraved mind regardless of human life.

[00:29:37] Don: Yes, and from Drejka’s perspective, he had just been violently thrown to the ground by a younger, bigger person for no legal reason. He was right there, easily could have continued the attack, and clearly, Drejka had reason to think if he did continue the attack by kicking him, punching him, stomping on him, that he would sustain serious bodily injury or death.

The moment of truth, though, was that McGlockton did not seem to be actually doing that, and when the gun came out, McGlockton backed away just prior to the shot being fired. At that point, not only did it appear that he wasn’t that imminent threat, but on the same hand, it’s clear that he had been a threat and still presented as a threat at that moment when the gun came out. It’d be really hard, I think, to your point, Shawn, I don’t think the prosecutor is going to make that depraved mind argument, the ill will, evil intent stick on Drejka. It was a pretty decent manslaughter case, but would have been a lousy second-degree murder case.

[00:30:47] Michael: That’s what I’m trying to say here, and I agree with you, having been practicing in this world in Florida for the last decade, I’m noticing prosecutors saying, “Wait a second.” I had a self-defense shooting case not too long ago where they charged her with aggravated battery with a deadly weapon.

There wasn’t even a man– no one died, they almost did, but instead of charging some attempted murder or something like that, while that might sound sexy, they charged it better for them because it’s a heck of a lot easier to prove an aggravated battery when you shoot somebody and say, “You know what? Did you intend to touch that person against their will?” “Yes, there’s a bullet hole in them.”

“By the way, did it cause great bodily harm, or did you use a weapon when doing so?” “Yes, that seems like a foregone conclusion too,” and now all of a sudden, we’re talking about a different standard than a murder case, I’ve seen in the same jurisdiction charge three different what could be attempted murder as aggravated battery with a deadly weapon because it’s easier for the state to prove and more appropriate of a charge actually.

[00:31:57] Don: Circling back, I think, to how this part of our conversation started, are you saying that there were lessons learned from Zimmerman and maybe some of the others that shortly followed it and that prosecutors may be evaluating these cases differently? Maybe the spokespersons for the deceased’s family isn’t being able to drive the prosecution like they so clearly did in the Zimmerman case.

We talked before, it was a specially appointed prosecutor from another jurisdiction who had no ties, and when it looked like Zimmerman may not be charged at all, after a very competent, thorough investigation by the local state attorney and police department, all of a sudden, the rug was pulled out and new prosecutors were put in who did very little more than then sign off on a probable because affidavit that did not consider self-defense whatsoever on its face and then ultimately signed a charge without presenting it to the grand jury.

Now, one more comment on Drejka and others, stand your ground, immunity, all of that stuff, which I hope we’ll clarify in more detail later. Under Florida law, there is an affirmative obligation which extends to law enforcement that if somebody claims self-defense, it has to be investigated. You can’t simply ignore it and go ahead and arrest somebody based upon the fact that they committed some violent act against someone else.

You have to take into account whether there is a reasonable self-defense claim, and that’s what I think the Drejka sheriff was saying, essentially. We need to investigate that. We can’t just knee-jerk arrest him because he shot somebody. We need to look at the larger picture, and that may require more extended witness interviews. It may require a longer investigation. I would want it to include some forensic work that becomes very valuable, especially if there isn’t video or inconsistent eyewitness testimony and such.

[00:34:11] Shawn: Right, and I think that if the prosecutors in the Zimmerman case had put on a manslaughter case, that’s a tougher case to defend. I think George is still not guilty, absolutely not guilty of manslaughter, but it’s a more nuanced argument. I think it’s easier to sell for them to the jury, and yes, there are lessons learned. Prosecutors have figured that out, and they’re charging things more appropriately, but when they charge it more appropriately, it’s a tougher case to defend.

[00:34:49] Michael: It’s a tougher case for the defense because you can’t point to what Don is talking about, the mens rea, the mental state, the mental culpability. For most crimes in our country, and I don’t care what state you’re in, it’s an act, it’s something that you did coupled with some level of intent.

That level of intent can go all the way from purposeful knowledge, which is like first-degree murder, all the way down to negligence, which is like manslaughter. Your act, you shot– you fired a gun or you were cleaning it, and it went off and it killed somebody. That was pretty freaking negligent, almost reckless, but it’s not depraved mind, regardless of human life. God knows you didn’t intend or purposefully plan.

What I just outlined right there in one or two sentences is the degrees of homicide. When a prosecutor’s office gets up there and says, “Hey, the intent that we have to show is simply that you intended to touch someone against their will, and what happened from there ends up being great bodily harm,” the sideshow of depraved mind, regardless of human life, is gutted from the case, making it a lot cleaner for the state, in my opinion, to make out their argument that they need to prove beyond a reasonable doubt.

I should point out for our listeners that if you’re acting in lawful self-defense, it’s a defense to any of these charges. It’s a defense to battery, misdemeanor battery all the way to first-degree murder if you reasonably believe that your actions were necessary to prevent imminent great bodily harm to yourself or another. Obviously, I think you want to unpack that a little bit more later and what immunity from prosecution means and all of that.

The fact of the matter is if you truly were acting in self-defense, it doesn’t really matter how they charged it. It’s just that when they charge it more correctly instead of overreaching because murder sounds cool, which really at the end of the day, guys, is what I think they were doing.

I think in so many of these cases, they want to charge murder because it appeases a group of people that think they want that when in reality, sometimes when the state listens to– like the case you’re talking about with the woman that was defending herself through the door of her own house, you charge her with murder because whatever the decedent’s family wants that because they think that’s somehow better for them, they’ve just made their lives so much more difficult for themselves because the standard that they have to prove is so much higher.

Yes, there’s lesser included offenses, but really what a prosecutor doesn’t want to be doing in a trial is arguing for a lesser when they’re charging something bigger because they look like they’re conceding a point to a jury. They’d be much better strategically to just charge the lesser and go hard on that.

[00:37:44] Don: No, I think that’s exactly right. That’s a perfect point to make.

[00:37:48] Shawn: Yes. Great. Fantastic. A bunch of criminal defense attorneys and advocates just doing a continuing learning education credit for a prosecutor.

[00:37:58] Michael: [laughter] That was for free, guys. Congratulations.

[00:38:02] Shawn: You talked about how be careful what you wish for if you’re the family demanding justice and an immediate rest on murder. We talked about the severity of the charge as something that could backfire for the prosecution, but arresting too soon gives the defender or the criminal defendant some speedy trial rights right off the bat, and you risk rushing an investigation and getting things wrong that could be detrimental to the prosecution.

[00:38:37] Don: Or not getting things done at all because you run out of time.

[00:38:41] Shawn: I’m thinking about not long after the Zimmerman case, there was a case up in Dearborn, Michigan. Michael Dunn– not Michael Dunn, Ted Wafer, shot Renisha McBride when she was banging on his front door late at night. She was injured. She was high. She was drunk. She was disoriented. She was looking for help or thought that she knew someone who lived there in the wrong place and was trying to get in. Ted Wafer opened his front door, was surprised to see her there because she hadn’t been banging for a couple minutes or a couple of seconds anyways, and discharged his shotgun and killed her.

That was one, especially off the heels of Zimmerman, where family was protesting, the community was up in arms with the demand for an arrest. Her team came to her with recommended charges to the prosecutor, and she said, “Go do more and come back.” It was weeks before they charged him, but the prosecutor wanted the details right and wanted it thorough before she decided to charge. They got a conviction in that case. It was a tough case. In the end, that family was delivered the justice they were asking for. It didn’t come as quickly as they thought, but–

[00:40:03] Don: There’s a couple of legal concepts here when you talk about speedy trial. One is constitutional speedy trial and that is typically measured in years. There hasn’t been a violation of the Constitution because you’ve essentially been held without being charged and prosecuted to your detriment. Witnesses die, disappear, you can’t really adequately defend yourself. There’s just too much time that passes for it to be fair that you then have to face charges.

In Florida, that speedy trial is measured not for state purposes in years, like would be under the federal Constitution, but in about six months. There’s some technical aspects of it, but you’re really talking about from arrest to the beginning of the trial is expected to be held within six months, 175 days, and then there’s some little time, things you can do to extend it and such, and then under certain circumstances if it’s been extended you can demand it, but the bottom line is as soon as you arrest somebody, it starts the clock, and if nothing changes, that case is going to have to be tried in 175 days or thereabouts.

It takes weeks, sometimes months, to get laboratory tests done. It may have to be sent out of state. There could be experts from anywhere in the country that have to become involved. There’s any number of reasons why thorough, diligent preparation and investigation can take months and months and months.

Not only– how do I want to say this, I think that from a strategy standpoint, there are lots of very good reasons why you don’t want to arrest somebody any sooner than you need to. Why might you need to? You might be ready, so now is the time because you’ve done the legwork and you’re ready to go. That’s very, very common in the federal system. The FBI may be working on a case for two or three years before they’re ready to indict and move forward. State systems don’t usually go that long, but you might be ready to go, so you charge somebody. It’s not uncommon for it to be a year or more after the incident.

The other reason, though, why you might want to charge somebody sooner rather than later is because, from law enforcement’s standpoint, you may think the person is a danger to the community, that if you don’t get them off the streets there may be additional crimes committed, or that you think the person may flee the jurisdiction. In addition to the other concerns, there may be an arrest right away just because you want to get them off the street and you’re willing to start the clock on the process.

The idea that someone isn’t arrested right away doesn’t in any way challenge the fact that the state thinks they’ve got a pretty good case or the police are confident they may arrest this person at some point, but they want the time and the opportunity to do the work first, and from their assessment, they’re not taking much of a risk. The person’s going to be around, the person’s not going to shoot anybody else, and the better outcome for everyone will be if they’re given enough time to do their best work.

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[00:43:36] Shawn: All right, friends, that’s the podcast for today. Thanks for listening through to the end. I’ve got more of this conversation with Michael Panella and Don West. Next time we’re going to start with a conversation about all the misconceptions and misunderstandings about standard ground that were brought up in Zimmerman, and in our opinion, persist to this day. Until then, be smart, stay safe, take care.

[00:44:06] Don: He was disqualified. I won my hundred bucks.