NLJ cites Monroe Freedman in editorial about prosecutor in George Zimmerman prosecution

George Conk, at Otherwise, alerted us to an editorial (behind a paywall) at NLJ that cites Monre Freedman's blog post.(Otherwise has the full text of the editorial.)

The first sentence of the editorial addresses the critical question of "who's the client": "The special prosecutor in the Trayvon Martin case should realize that the public and the truth, not the dead youth's family, are her clients."

The editorial also criticizes the decision to bypass a grand jury and charge murder two. And the "thinness" of the probable cause affidavit also comes under attack. Elsewhere, the indefatiguable Alan Dershowitz has been urging a possible criminal investigation of the prosecutor. Dershowitz hammers on the point I raised here (a point I'm still not sure about) about whether the prosecutor can omit facts that are inconvenient to, or even contrary to, the prosecutor's theory.

Comments

[Rick Underwood]

This is interesting. The affidavit is ex parte, and we say that that calls for greater disclosure in some contexts. On the other hand, prosecutors can and do hold back in Grand Jury Proceedings, and it seems that Brady does not apply in that context. So, if the affidavit procedure is an alternative the the Grand Jury, can the prosecutor hold back in the same way? Anyone have a take on this? I do not know Florida law, and the last criminal case I worked on was in 1979-80. However, I did present a paper at the Bob Dylan and the Law Conference.

[Rick Underwood]

I just read the latest from AD and I agree that the affidavit is insufficient. Can't the prosecutor redo it if she has more evidence, or go again for some degree of manslaughter? Of course, this all seems like politics, and Monroe's analysis of the press conference is correct, I think. This would make a good problem for a casebook - one problem on the Nifong type overreach (let's discuss the evidence, real and imagined) and this more insidious approach (we work for the V, and we would not bring this if there were any doubt as to guilt, etc...). Will anything be done? (This, I fear, is a rhetorical question.)

[John Steele]

There's an interesting question about who chose the words "profiled" and "instructed" for inclusion in the affidavit. The evidence as we now know it doesn't seem to support either word. IIRC, the affiant testified that the term "profiled" had no evidentiary support.