Hardball | April 12, 2012
SMERCONISH: now, Harvard law professor Alan Dershowitz . Professor, I have really looked forward to this conversation. You have seen the affidavit of probable cause . What do you make of it?
ALAN DERSHOWITZ, AUTHOR, "THE CASE FOR MORAL CLARITY: ISRAEL, HAMAS AND GAZA": It won't suffice. Most affidavits of probable cause are very thin. This is so thin that it won't make it past the judge on a second degree murder charge. There is simply nothing in there that would justify second degree murder. The elements of the crime aren't established. Basically, what's in the affidavit is what's in the public domain, with the exception of the few little things that were put forward by your previous commentator. But the fact that the mother identified the voice as that of her son, of course, we all knew that that was going to happen. There is nothing in there, of course, either about the stains on the back of Zimmerman 's shirt, the blood on the back of his head, the bloody nose, all of that. It's not only thin. It's irresponsible. I think that what you have here is an elected public official who made a campaign speech last night for reelection when she gave her presentation, and overcharged, way overcharged. This case will not -- if the evidence is no stronger than what appears in the probable cause affidavit , this case will result in an acquittal.
SMERCONISH: Professor, you and I have the benefit of having read the affidavit . Allow me, please, just to read one short paragraph, so that folks know how limited it is in a factual discussion of the critical sequence. " Zimmerman confronted Martin and a struggle ensued. Witnesses heard people arguing and what sounded like a struggle. During this time period, witnesses heard numerous calls for help, and some of these were recorded in 911 calls to police. Trayvon Martin 's mother has reviewed the 911 calls, identified the voice crying for help as Trayvon Martin 's" -- nothing about that critical, you know, who struck the first blow and what precipitated that action that I was looking forward to seeing in the affidavit of probable cause .
DERSHOWITZ: But it's worse than that. It's irresponsible and unethical, and not including the material that favors the defendant, unless it's not true. But if it's true, as we now have learned from other information, that the grass stains are in back of Zimmerman 's shirt, that there were bruises on his head, you must put that in an affidavit . The affidavit has to tell the truth , the whole truth, and nothing but the truth .
SMERCONISH: Let me ask you this because you've written something very insightful about a nightmare scenario that a prosecutor could face where you distinguish between the differing levels of proof, probable cause , as compared to beyond a reasonable doubt . In lay terms, lay that out that for us now.
DERSHOWITZ: Well, it's very easy to get an indictment. I think a chief judge of New York Court of Appeals once said that a prosecutor could persuade a grand jury to indict a ham sandwich . It's even easier to get something like this because all the prosecutor has to do is sign her name to it. But probable cause is a very minimal standard. It just means if everything you say turns out to be true, have the elements of the crime been satisfied? Proof beyond a reasonable doubt means that a jury has to conclude that there is no reasonable doubt that it happened. No reasonable doubt that it happened. This affidavit doesn't even make it to probable cause . Everything in the affidavit is completely consistent with a defense of self- defense . Everything. Even if he was the provocateur, you still have traditional defense under Florida law . If, in fact, Zimmerman provoked it but then Martin got on top and was banging his head against the ground, he still has a traditional right of self- defense . So, there is nothing in this affidavit -- and I 've read it quite carefully -- that suggests the crime. It suggests the possibility of a crime, but a good judge will throw this out. And I think probably she'd be satisfied with it. She's won her campaign. She's overcharged, second-degree murder. She's the hero.
SMERCONISH: Well, Professor, will the prosecution get a mulligan on this? Will they have the opportunity to do it over and put more information into it?
DERSHOWITZ: Sure, but the question is do they have more information? If they have more information, why don't they put into it? And why are both sides trying to seal the record here? I suspect that already we're seeing negotiations --
SMERCONISH: For a plea?
DERSHOWITZ: -- possibly toward a plea bargain . The new lawyer implied that yesterday when he talked about negotiations and when he wouldn't say anything critical about the prosecutor. But, you know, it's unethical to overcharge in order to get a plea. It's unethical to charge second-degree murder in order to get a plea of manslaughter. And so, I think this prosecutor had a lot of answering to do. She'll win a lot of popularity contests. She'll probably get points with the judge. But the tragedy in America is we're the only democracy in the world where we elect prosecutors and elect judges, and that's not conducive to doing justice in high profile cases where people are rooting for outcomes and nobody seems to be concerned about the truth -- except, by the way, Martin 's parents, who seem to be handling this very well. I think they are interested in the truth and I have nothing but praise for the way they've handled this case.
SMERCONISH: Thank you -- thank you for your insight, as always, Alan Dershowitz .