Zimmerman’s lawyers: He might seek “compensation” from the prosecution
posted at 11:21 am on July 15, 2013 by Allahpundit
Something new to add to the pile of possible lawsuits post-verdict. Trayvon Martin’s parents will likely sue Zimmerman for wrongful death and hope that the lower standard of proof for civil actions beats his claim of self-defense this time. The feds are pretending that they might prosecute Zimmerman for violating Martin’s civil rights, but they won’t. They probably can’t win and the combination of racial tensions and perceptions of double jeopardy (which is what a federal prosecution would smell like, even though it’s technically not DJ) makes the whole thing too politically risky for O. If he wants to use Zimmerman to galvanize liberals for the midterms, President Above The Fray can have his surrogates pound the table about the Florida verdict. No need to get the DOJ involved.
Meanwhile, as Ed noted earlier, Zimmerman himself seems set to proceed with his defamation action against NBC. I’m more skeptical than Ed is about the odds of success: It’s very easy to become a “public figure” for purposes of defamation law, which Zimmerman arguably was even before NBC butchered the tape of his 911 call. NBC’s segment ran on March 27, 2012; as of a week earlier, there were protesters at the courthouse in Sanford and news stories running at CNN about the feds opening an investigation into the incident. He was probably already a public figure at that point. Doesn’t mean he can’t win on defamation, but it’ll be much harder.
Now, via the Right Scoop, here comes potential lawsuit number four: What if Zimmerman sues Angela Corey and the state? Watch the clip and you’ll find Mark O’Mara hinting at “compensation.” I wasn’t sure offhand what he meant by that, but a little educated googling revealed a few possibilities. One: He could sue the state on federal grounds (a “Section 1983 action”), claiming that the prosecution was mishandled in a way that violated his right to due process presumably because some evidence wasn’t turned over during discovery. Actions like that are exceedingly hard to win against prosecutors, though. Two years ago, the Supreme Court vacated a judgment awarding a man $14 million in damages after a prosecutor withheld exculpatory evidence during his trial and he ended up on death row. To win damages, you need to show that the prosecution engaged in a pattern of behavior. Maybe Corey’s office is guilty of that, but if not, Zimmerman will have trouble.
The other option is to skip the federal claim and sue Corey for “malicious prosecution” under Florida law. This summary seems fairly comprehensive.
To bring a lawsuit for malicious prosecution in Florida, a plaintiff must allege and prove the following six elements: (1) a criminal or civil judicial proceeding was commenced or continued against a present plaintiff; (2) the commencement or continuation of that proceeding was caused by the present defendant; (3) there was a “bona fide” termination of the proceeding in the present plaintiff’s favor; (4) there was no probable cause for the judicial proceeding to be commenced or continued; (5) the present defendant commenced or continued the proceedings against the present plaintiff with “malice;” (6) the defendant caused legally cognizable damage to the present plaintiff. See Central Fla. Mach. Co. v. Williams, 424 So. 2d 201, 202 (Fla. 2d DCA 1983)…
The existence of “malice” is the essence of a cause of action for malicious prosecution. “Malicious” means without reasonable cause and for a purpose other than that for which the criminal prosecution is provided and, therefore, out of ill will, animosity and with a desire to do harm for harm’s sake. Erp v. Carroll, 438 So. 2d 31, 40 (Fla. 5th DCA 1983). Malice may be either: (a) actual or subjective malice, sometimes called “malice in fact,” which results in intentional wrong; or (b) “legal malice,” which may be inferred from circumstances such as the want of probable cause, gross negligence, or great indifference to persons, property, or the rights of others, even though no actual malevolence or corrupt design is shown. See Morgan Int’l Realty v. Dade Underwriters Ins. Agency, 617 So. 2d 455, 458 (Fla. 3d DCA 1993); Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002). Legal malice may be inferred from one’s acts, and, unlike actual malice, does not require proof of evil intent or motive. Olson v. Johnson, 961 So. 2d 356, 359 (Fla. 2d DCA 2007).
Maybe you can infer malice somehow from the political tensions that informed the case plus the fact that he was obviously overcharged with second-degree murder, but how do you show that there was no probable cause to commence the proceeding? Granted, the cops didn’t arrest him initially, but the trial judge thought the evidence was strong enough to go to the jury and the jury itself thought it was strong enough to deliberate for more than 12 hours. “Malicious prosecution,” I would think, is something you’d see where the trial court issues a directed verdict of acquittal because the evidence is so flimsy that there’s no reason to even let it go to the jury. That’s not what happened here. Click the image to watch.