Overlawyered: Chronicling The High Cost Of Our Legal System

Martin/Zimmerman: the Murder Two rap

Dan Markel at Prawfsblawg is wondering whether second-degree murder amounts to overcharging the case given the state of the evidence and the prosecutor’s affidavit: “I have no special insight into [prosecutor Angela] Corey’s evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice.”

Relatedly, Tom Maguire at Just One Minute explains his reasons for doubting that Corey has developed breakthrough evidence in the investigation so far. David French and Andrew McCarthy at NRO take sharply different views of how well the prosecution affidavit supports its charge.

And Ken at Popehat isn’t impressed at all by the prosecution’s handiwork so far: “The affidavit is argumentative, it’s conclusory, and it lacks attribution. … This is not the worst affidavit I’ve ever seen — but it’s damn close, and the decision to proceed based on it in such a high-profile case is stunning. … There’s no way that a judge reading this affidavit can make an intelligent or informed decision about the sufficiency of the evidence — even for the low hurdle of probable cause.”

More: Jeralyn Merritt on the affidavit’s unsupported assertions [via Balko] And via Steele, Legal Ethics Forum: George Conk “sensed trouble when Florida Special Prosecutor Angela Corey announced she would not convene a grand jury, skipping the first means of testing one’s evidence and demonstrating recognition of the citizenry’s right to [gauge] the conduct of prosecutors.” “Zimmerman should not be charged, nor sitting in a county detention, based on this document; yet there he is.” [Empty Wheel] Yet more: Radley Balko on the unchecked charging power of prosecutor [HuffPo]

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Misleading audio clips and media transparency

In one of the standout instances of media misconduct during the run-up to the recent furor, NBC repeatedly aired, on “Today” and other shows, audio footage misleadingly edited so as to advance the proposition that George Zimmerman was suspicious of Trayvon Martin because of his race [Erik Wemple, Washington Post] While announcing that it had fired the unnamed producer it considered responsible, NBC was less than forthcoming about other details of the scandal, which — as Mickey Kaus points out — may have had a lot to do with its lawyers’ concerns about minimizing a possible defamation payout: “Like other tort laws, libel laws are in practice the enemy of transparency.”

Some have recalled the scandal in which “Dateline NBC” aired footage of supposedly exploding GM cars that in fact had been rigged with incendiary devices. But I’m actually more put in mind of a less celebrated media disgrace from the same era, the Texaco Tapes pseudo-scandal, in which (as I recount here) the New York Times and other outlets avidly promoted systematic misreadings of audiotapes in a hotly disputed racial-bias case, and failed to engage in adequate (or, really, any) soul-searching when the misreadings came to be exposed. In the Martin/Zimmerman case the questionable audio readings included the “two-shot” account influentially advanced by the New York Times when the case first broke nationally, and the supposed racial slur which dominated coverage for a couple of days before being (if the prosecutor’s affidavit is any indication) discreetly laid to rest.

More: Speaking of the New York Times, you have to wonder whether that paper has some sort of stylebook rule requiring it to keep misreporting what Stand Your Ground laws do [Jacob Sullum, more, earlier] And Tom Maguire notes that the paper’s latest editorial appear to be backing off its earlier assertions that the Zimmerman case will hinge on the state’s curtailing of the old “duty to retreat”: “The duty to retreat evidently extends to Times editors.” He also wonders whether, on the much-discussed question of whether Zimmerman flouted the advice of a 911 operator, the NYT editorialists read their own paper. Yet more: Maguire collects the media myths.

I have a new post at Cato rounding up many of my recent writings and broadcast appearances on the subject, under the title, “Why Is Press Coverage of the Martin/Zimmerman Case So Bad?”

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Lawyers who “continue to make irresponsible statements to the media”

When two lawyers who initially represented George Zimmerman bailed out at a much criticized press conference, a Martin family lawyer reacted as follows:

Natalie Jackson, an attorney for Martin’s family, said these lawyers “continue to make irresponsible statements to the media.” In a statement obtained by NBC News she said, “Not only have they spoken recklessly about racial issues, enflaming passions and reinforcing stereotypes,” now they’ve thrown “their own client, George Zimmerman, under the bus by [alluding] to his possible flight from justice.”

Yes, it would be nice if attorneys involved with the case refrained from making irresponsible statements to the media, speaking recklessly about racial issues and inflaming passions. It should be noted that this is the same attorney Natalie Jackson who, with colleague Benjamin Crump, promoted the “cold blood” or “two shots” account of the case that was influentially picked up by the New York Times’s Lizette Alvarez on March 17 and then by much of the rest of the press:

On the recordings, one shot, an apparent warning or miss, is heard, followed by a voice begging or pleading, and a cry. A second shot is then heard, and the pleading stops.

“It is so clear that this was a 17-year-old boy pleading for his life, and someone shot him in cold blood,” said Natalie Jackson, one of the Martin family lawyers.

Soon thereafter, the Orlando Sentinel found that only one bullet had been fired from Zimmerman’s gun. While indirectly acknowledging the problems with the audio — put more bluntly, the first “shot” was imaginary — the Times has appended no correction regarding the “two shots” account, though it has corrected an unrelated error in the Lizette Alvarez story.

Tom Maguire at Just One Minute has been all over media misreporting of the Martin/Zimmerman case, including the two-shots account. He points out that a large number of memes unfavorable to Zimmerman, and which turned out to need revision or correction in later coverage, originated with the Martin family’s lawyers, particularly Benjamin Crump. That would include Zimmerman’s allegedly huge weight advantage over Martin, the supposed “racial slur” that dominated coverage for a few days, and the negligence of the Sanford police department in still (“unbelievably,” says Emily Bazelon) not having interviewed Trayvon Martin’s girlfriend, who allegedly “heard him get pushed” over a cellphone (when in fact the family’s lawyers had instructed her not to cooperate). Related here (on civil suit against homeowners’ association).

I would not place any bets that with Zimmerman’s original lawyers out of the case we will now be spared irresponsible or racially inflammatory lawyering.

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Zimmerman in custody, charged with second degree murder

Coverage everywhere.

Of the continuing efforts in many quarters to demonize “Stand Your Ground” law, despite mounting indications that it will not make the difference in determining George Zimmerman’s guilt or innocence at trial (on which see my Cato colleague Tim Lynch’s writing here and here, as well as mine), Ann Althouse asks: “Why inject an inapplicable, controversial issue? To inflame passions? To skew judgment? To take any opportunity/nonopportunity to push your pet issue?”

The thing is, “Stand Your Ground” hadn’t really been a pet issue one way or the other for many of those who now harp on it. I think the better answer is: because many people yearn for ways to blame their ideological opponents when something awful happens. It’s much more satisfying to do that than to wind up wasting one’s blame on some individual or local police department for actions or decisions that might not even turn out to be motivated by ideology.

Consider, for example, the efforts to set up the conservative American Legislative Exchange Council as somehow the ultimate villain in the Martin shooting. Left-wing groups, assisted by labor union and trial lawyer interests, had been pursuing a campaign against ALEC for months before the Martin case, in hopes of making the group radioactive among generally liberal donors like the Gates Family Foundation and the Coca-Cola Co. Nothing had worked — until the synthetic Stand Your Ground furor finally afforded an opening.

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Lilly Ledbetter back in news

Mitt Romney, following a long tradition of GOP candidates unable or unwilling to resist the continued expansion of employment discrimination law, has pre-emptively blessed Congress’s 2009 enactment of the ill-advised Lilly Ledbetter Fair Pay Act gutting statutes of limitation. Hans Bader offers reasons why he should consider drawing the line. [Examiner] More: Ted Frank.

Related: Wisconsin Gov. Scott Walker signs bill repealing duplicative damages law passed by his Democratic predecessors, thus contradicting the accepted narrative in which the scope of available damages in job-bias suits is supposed to be revisable only in an upward direction.

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Arizona update: Thomas faces disbarment

Former Maricopa County, Arizona state’s attorney and frequent Overlawyered mentionee Andrew Thomas now faces disbarment for misdeeds that include launching unfounded prosecutions of local officials who had criticized him [Terry Carter, ABA Journal] The latest ABA Journal headline is an instant classic: “Defiant After Disbarment Ruling, Ex-Maricopa Attorney Andrew Thomas Compares Himself to Gandhi”

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Cato internships for graduating law students

Ilya Shapiro has the details at Cato at Liberty about a way to soften the discomfort of a still-weak job market for law grads:

…the Cato Institute invites graduating (and recently graduated) law students and others with firm deferrals or post-grad funding—or simply a period of unemployment—to apply to work at our Center for Constitutional Studies. This is an opportunity to assist projects ranging from Supreme Court amicus briefs to policy papers to the Cato Supreme Court Review. Start/end dates are flexible.

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