“The permissible number of times my kids can have their heads bashed on the sidewalk by Trayvon Martin is zero.”
UPDATE: Fred Thompson, a commenter over at Legal Insurrection, was kind enough to transcribe pretty much the entirety of my remarks. I’ve pasted them here at the bottom of this post. Thanks, Fred, gift to you on the way!
It was mid-afternoon when I received the phone call. Would I be interested in participating on a panel discussing the Zimmerman case and self-defense law in general, to be hosted on KPCC, the Los Angeles are National Public Radio station? Meh, why not, I told them. And there I was, on hold with my iPhone waiting to “go live,” and thinking: boy, didn’t they see ANY of my tweets? Why would NPR want me on the air?
The show was AirTalk with Larry Mantle. Unsurprisingly, I’d never heard of either the show now Larry, but then my home hunting grounds in Boston were a considerable distance away. The others on the panel (although we weren’t all on at the same time) included Brian T. Dunn, a sensible sounding lawyer from the California office of the Cochran Firm, Lawrence Rosenthal, a Professor of Law at Chapman University and Jon Greenbaum, Chief Council for Lawyer’s Committee for Civil Rights, and Stanley Goldman, Professor of Criminal Law at Stanford Law School and an old-school gun control fascist–he’s the third voice on my segment of the show.
And, me, your humble correspondent.
I didn’t hear the entirety of the hour-long program–hey, I’ll suffer for my craft, but only so much–but did start listening a few minutes before they promised to put me live. Professor Goldman was going on about how the reason Florida v. Zimmerman was such a debacle was because of it’s crazy “Stand Your Ground” law, and how the outcome would have been infinitely more sane had the case been tried, for example, in California. Florida’s SYG law, he explained, gave individuals egregious powers to kill others, above and beyond that found anywhere else in America.
And then I was live.
Larry Mantle: “I know that there are supporters of George Zimmerman who feel he never should have been on trial, to have him even face these charges was malfeasance. What is your opinion about his, particularly looking at it fro a self-defense standpoint?”
Andrew Branca: “Well, I certainly agree with that, and I’d like to talk to that. But before we do , I’ve been listening to the show on hold while it’s been going on, and I hear a lot of discussion about how Florida has this crazy stand-your-ground law that creates these unique legal scenarios. The fact is Florida’s stand-your-ground law is quite common, 33 states are effectively SYG states and have very similar provisions. In fact there is one state that not only lets you to stand your ground,it explicitly allows you to pursue your assailant if necessary for your safety. And that state is California [where the station is located].
There was more fun antics of that nature, including my closing line: “the permissible number of times my kids can have their heads bashed on the sidewalk by Trayvon Martin is zero”. To listen to the whole thing, see below.
UPDATE: Here is the almost totally complete transcript of my remarks, as prepared by Fred Thompson, a commentator over at Legal Insurrection.
The following is a partial transcript of the interview (leaving out much of Rosenthal’s comments, and summarizing some of Mantle’s questions):
Mantle: Why was it wrong for the case to be brought?
Branca: Well, they didn’t have probable cause to bring the charges. The prosecution, even after 14 months – essentially, if you heard their closing, they had almost no direct evidence and very little circumstantial evidence on the elements of the crime that they had to prove to get murder 2.
It was a very emotional appeal, it was to the heart and ‘Trayvon’s dead’ and so forth, and of course that is a genuine tragedy, but they actually have an affirmative charge, an obligation to bring evidence before the jury beyond a reasonable doubt on each and every element of that second degree murder statute, and they simply didn’t have it.
Mantle: Is there recourse for Zimmerman in the wake of his acquittal?
Branca: I don’t know. That’s not my area of expertise. I certainly think that a hearing on sanctions on these prosecutors’ conduct is well warranted. I believe from my observation – and I’ve watched the trial and discovery in its entirety – there was to my eyes considerable misconduct in that discovery process.
I’ll give you perhaps the most egregious example. The whole point of discovery is that both sides start the trial with the same body of evidence. Now they can take those elements of evidence and build their own story, build their own compelling narrative of guilt or of innocence. They can choose to ignore pieces of that evidence. They can choose to emphasize other pieces more than the other side. That’s all perfectly appropriate, but they’re supposed to start with the same pieces. Like a jigsaw puzzle, they both have the same pieces. When one side denies the other pieces, either affirmatively or by trickery, then it’s not a fair game any more.
And what the State did in this case was they had a data file from Trayvon’s phone. They generated a written report of the contents of that data file. In fact, the written report only represented a portion of the contents. Then they handed the file and the report together to the defense and said, ‘Here’s the data information.’ Well, the defense assumed that the report covered all the data on the file, especially since they didn’t have the specialized equipment to break into the phone and look at the data themselves. When it was discovered that in fact the report left out a lot of the information, particularly information that would not have looked good for the State, like Trayvon holding a gun, or marijuana plants, or things of that sort, well then of course the whole thing was blown open, and sanction hearings were begun before the trial. Judge Nelson suspended them until after a verdict, but that was egregious, that was trickery.
Mantle: Should Zimmerman be allowed to get his weapon back?
Branca: Well if he was allowed to before, why wouldn’t he be allowed to now? He hasn’t done anything wrong.”
Mantle: Well, not something that was judged as a jury by criminal, but the fact that he used the gun against someone else, couldn’t local law enforcement deny his request to carry a weapon?
Branca: I don’t see that happening in the State of Florida. I mean, I live in Massachusetts where licenses are very discretionary, and that would certainly be the outcome here. I expect in California it’s a very similar situation. But in states that are ‘shall issue’ states, unless the state can affirmatively demonstrate some reason why you are not entitled – and that would be some kind of criminal offense or history of domestic violence or something along those lines – unless they can demonstrate that affirmatively, they can’t deny you the permit. It’s not discretionary on their part.
(Lawrence Rosenthal makes some remarks on his desire for greater gun control and his belief that “Stand Your Ground” is responsible for an increased number of deaths.)
Mantle: You want to respond to that? Justifiable homicides up significantly since “Stand Your Ground” was enacted.
Branca: Well, I don’t know if that’s true, but I’ll accept that for discussion’s sake. But I guess I would say, what’s the problem? Because there were justifiable homicides. That means people were lawfully defending themselves against death or grave bodily harm. Would we want the alternative, where they’re forced to suffer death and grave bodily harm rather than defend themselves?”
Lawrence Rosenthal makes some more comments and then remarks: “There was no good reason that Trayvon Martin died. We shouldn’t forget that.”
Mantle: And I know you have to go Mr. Branca. Quick closing comment, sir.
Branca: Well I would just say that I’m afraid there was good reason. He was committing an aggravated assault on somebody, he was beating their head on the sidewalk, and I don’t know if you have any children, but I have several, and my permissible number of whacks of their head on the sidewalk by Trayvon Martin is zero.