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: 

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 that 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 and doing research and work with CCW Safe.

We got together in central Florida in June of this year, which would’ve been one year exactly from when we were going through the long process of picking a jury for the Zimmerman case. And we were joined by our friend and colleague, Michael Panella. Also, if you listen to this podcast, you might’ve heard us interview Michael Panella on the DeRossett case. That’s an extraordinary self-defense case that Don and I got to work with Mike on. That’s a “get 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. It was actually on the case before Don was brought on the case, and 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. So 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. So 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. There was 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 … well, to charge George at all in what we have always contended was a completely clear-cut, justified use of force … but 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 cause 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 are 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:

Michael Panella:

What sticks out in my mind and just 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. So at this time, 10 years ago, I graduated from law school. It was 2013.

Shawn Vincent:

Right. So you were law clerk during the time you worked on the case.

Michael Panella:

Yeah. 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, and 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?

Don West:

I do.

Shawn Vincent:

At least, one of those was a news helicopter also.

Don West:

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. But then there was also this corral, maybe, staging area for the media vehicles. The trucks from all of the major media outlets

Michael Panella:

Commandeering the entire front parking lot of the courthouse.

Shawn Vincent:

Well, they had 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.

Don West:

Well, throw that into the mix along with … there were 700 jurors summoned to the courthouse for jury selection, and 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.

Michael Panella:

Right, that’s what I thought. I thought that our case alone had 500.

Don West:

It did.

Michael Panella:

Yeah. 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. And 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’ve had a trial week while we were having our trial

Don West:

And county court as well.

Michael Panella:

And county court as well.

Don West:

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 and the shoplifting cases and…

Michael Panella:

Yeah, batteries, and…

Don West:

Misdemeanor batteries. And that sort of thing.

Michael Panella:

Yeah. And they had another four county court judges going at that time too.

Don West:

And there’s no reason to think there weren’t civil trials.

Michael Panella:

Well, that would’ve been at the other courthouse.

Don West:

Oh, that’s right. The way that they’ve got this criminal justice center near the jail…

Shawn Vincent:

Near the jail.

Michael Panella:

Right.

Don West:

And the civil courthouse in 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.

Michael Panella:

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 into 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, and 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. And I think that that feeling carried through even after that trial was over.

Shawn Vincent:

That’s nicely put, Mike. And I remember an early preliminary hearing in the case and the judge had this edit, there’s a docket sounding essentially just scheduling, and often in the criminal court when you have one of those, there’s a whole morning set up for that and 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 from the prosecutor’s office.

Michael Panella:

Yeah. The judge wants to go through every case on her docket and know what’s going on with it. So Rocket Docket, they’re calling every single name and saying, “What do you need? Are you going to trial? Are you going to plead? What are you doing?”

Shawn Vincent:

And you show up and you get a number essentially, and “Okay, you’re number 12.” And you can … now you can go chat in the lobby for a few minutes with other lawyers and kind of time when your case calls up.

Don West:

And 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-

Shawn Vincent:

To talk about the case

Don West:

…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.

Michael Panella:

Absolutely.

Shawn Vincent:

But then what happened is that this is one of the early hearings in this case, the whole world’s watching, a huge press corps is there to cover this hearing, and the judge was like, “Well, we’re going to run… 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, 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 it’s not typical for cases that you try, Don. And so as a team, we had to adapt to that attention as well.

Don West:

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. And I have nothing but praise for the way the security was handled.

Michael Panella:

No, they were amazing.

Don West:

Seminole County Sheriff’s Office, just excellent.

Michael Panella:

Not to mention giving us our own basement, a spot in that courthouse that I didn’t know existed.

Don West:

Yeah. 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.

Shawn Vincent:

And a windowless cinder block room that was, I’m going to guess, about 15 by 30 maybe.

Michael Panella:

It’s just as Don said he’s got nothing but praise for them. And I agree. I think that was the best they could do. I mean, they found us a room.

Shawn Vincent:

Well, I wasn’t complaining about that.

Michael Panella:

But yes it was. It was a basement. It was a basement underground underneath the Seminole County Criminal Justice Center.

Don West:

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. Now, we had lots of people connected with the case that had their own agenda, their own goal perhaps. And we realized that firsthand in jury selection, that there were people there that were willing to do anything including commit perjury to get on the case.

Michael Panella:

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?

Don West:

Yeah, just to round that out a little bit. We had a jury consultant, an expert in selecting jurors, a fellow named Robert Hirschhorn, that was a fellow that I had worked with a number of years before in a very, very serious case. And he came on board, as 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 and we’re 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.” And that’s what he gets paid for, when he gets paid, is that’s 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. And I said, “I’ll bet you a hundred bucks that I can get them off without using a peremptory challenge.” Because we wanted to protect our peremptory challenges. And he goes, “I’ll take it.” And that’s when prompted me…

Michael Panella:

So that’s what it was.

Don West:

…to go do some research.

Michael Panella:

So you were trying to win a bet?

Don West:

Well, that…

Michael Panella:

No, I know. And at the end of the day you were preserving… You also probably realized we don’t want this guy.

Don West:

Oh, without a doubt.

Michael Panella:

And so it became kind of a mission to figure out how?

Don West:

Exactly. The challenge was, we know we don’t want him, and we’re not going to have a choice. We’re either going to have to use a peremptory 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. But 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. So 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 peremptory challenges.

Michael Panella:

So 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, “If I can get that word, that…

Don West:

You did not like this guy either, did you?

Michael Panella:

I hated this guy. That was what he said. That was literally his quote,

Shawn Vincent:

“This town needs an enema?”

Michael Panella:

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. And it was, as I recall it, I think that it was a post he made inside of a group on Facebook that you kind of just followed the breadcrumbs and found that.

Don West:

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. And 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. And 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, and none of us really necessarily believed that.

So that was where I was headed, and through a combination of some words and some searches, I just 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. And so when confronted with that, we had the printout from the social media post. He did admit, he authenticated it, if you will, he was done for it 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.

Don West:

Yeah. And he was, 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.

Michael Panella:

The judge could have held him in indirect criminal contempt.

Don West:

Absolutely, yes.

Shawn Vincent:

But the judge wanted to get the jury picked and wanted to get this case tried.

Don West:

Didn’t want another sideshow.

Michael Panella:

Right. As I recall it. There was another sideshow though. He was trespassed from the property and came back. And law enforcement from … actually the courtroom deputies had to go and escort him off the property again. And he was ranting out there and creating all kinds of problems.

Don West:

I think that just highlights what was sort of 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. It was really bizarre.

Shawn Vincent:

One of the things that that guy had ranted about online was that he felt that George Zimmerman should have been arrested sooner. And 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, 10 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. And it took four days for them to arrest the shooter. But 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, and 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. So I think it’s worth talking about why that’s not right, how that works.

Don West:

You mean how justice is not necessarily served by arresting somebody immediately?

Shawn Vincent:

That’s what I’m trying to say.

Don West:

And whether 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?

Michael Panella:

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. Yeah. So I’ve commented on this on TV a little bit. And I thought about the very question you are 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. And the question was posed to me, “Look, what are your thoughts about these particular charges? Do they make sense under the facts?”

And the facts as I understood them, and again, this case is pretty new, but it was two neighbors.  They had prior history. The defendant, the person who’s 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 and 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. And I’ll tell you, if there’s one thing that the George Zimmerman case taught us is don’t believe what you hear in the media. So my first, just a total disclaimer, I’m not representing anybody in this case, but what I will say is just from what was presented to me and 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.

But to me, just because someone is dead and you’re responsible for the killing doesn’t make it murder.” And I think that’s why this podcast exists. And so 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. And so 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, and it happens all the time.

Shawn Vincent:

So let’s take a minute. This is something I was really hoping to talk about. And I want to see what your thoughts are, Don, because we’ve talked about this in cases that we’ve watched since Zimmerman. So a few 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. So when we talk about the significance 10 years later, the Zimmerman case, we see it in the news all the time, still reverberations of that.

But one thing I really got watching other high profile cases be prosecuted afterward 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?

Don West:

The handicapped parking spot. Those that were remembering 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, and she was in a handicapped parking place, and he took offense to that and confronted her, and they were arguing back and forth. And the boyfriend McGlokton, 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. And 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 fellow – pretty tall, fit, younger man – sort of 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 Mark, is it Markis McGlokton?

Shawn Vincent:

And so he wasn’t arrested right away. The Pinellas County Sheriff cited stand 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, but when they charged him, I was sort of 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, but 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.

Don West:

Oh, sure. What separates second-degree murder from manslaughter is this additional mental state. Well, Mike knows it very well. The ill will, hatred …

Michael Panella:

Depraved mind, regardless of human life.

Don West:

Yeah. And from Drejka’s perspective, he had just been violently thrown to the ground by a younger, bigger person for no legal reason, and 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 McGlokton did not seem to be actually doing that. And when the gun came out, McGlokton backed away just prior to the shot being fired. So 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. So 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’ve been a lousy second-degree murder case.

Michael Panella:

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 kind of attempted murder or something like that, while that might sound sexy, they charged it better for them.

Shawn Vincent:

Harder to defend.

Michael Panella:

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?” Yeah, there’s a bullet hole in them. And by the way, did it cause great bodily harm or did you use a weapon when doing so? Yeah, 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 this 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.

Don West:

So 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 family aren’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 cause affidavit that did not consider self-defense whatsoever on its face, and then ultimately sign a charge without presenting it to the grand jury. 

 

Don West:

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 consistent eyewitness testimony and such.

Shawn Vincent:

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 an easier 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.

Michael Panella:

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. And 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. Well, that was pretty freaking negligent, almost reckless. But it’s not depraved mind, regardless of human life. And God knows you didn’t intend or purposefully plan. And what I just outlined right there in one or two sentences is the degrees of homicide, right? And 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. But 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.

Shawn Vincent:

All of it.

Michael Panella:

It’s a defense to battery, misdemeanor, battery, all the way to first-degree murder. If you reasonably believed that your actions were necessary to prevent imminent great bodily harmed yourself or another. And obviously, I think you want to unpack that a little bit more later and what immunity from prosecution means and all of that. But 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 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. And yes, there are 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.

Don West:

No, I think that’s exactly right. That’s a perfect point to make.

Shawn Vincent:

Yeah. Great. Well, fantastic. A bunch of criminal defense attorneys and advocates just doing a Continuing Learning Education credit for a prosecutor. That one’s for free, guys. Congratulations. But 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 defendant 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

Don West:

Or not getting things done at all, because you run out of time.

Shawn Vincent:

And so I’m thinking about how, not long after the Zimmerman case, there was a case up in Dearborn, Michigan, 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 of minutes or a couple of seconds anyways, and discharged his shotgun and killed her. And that was one, especially off the heels of Zimmerman where the family was protesting, the community was up at arms, and there was a demand for an arrest.

Her team came to her with recommended charges to the prosecutor, and she said, “Go do more and come back.” So 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 …

Don West:

There’s a couple of concepts, legal concepts here when you’re talking about speedy trial. One is constitutional speedy trial, and that is typically measured in years. Has there 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, 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. So 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. Well, why might you need to? Well, 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 in common for it to be a year or more after the incident. The other reason, though, is why you might want to charge somebody sooner rather than later is because from law enforcement 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. So 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.

So 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.

Shawn Vincent:

All right, friends, that’s the podcast for today. Thanks for listening through to the end. I’m 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 stand your ground that were brought up in Zimmerman and in our opinion, persist to this day. Until then, be smart, stay safe, take care.