Yesterday the Chicago Sun-Times ran my column about Florida's self-defense law under the unfortunate headline "Why Trayvon's Killer Should Be Acquitted," which is certainly not the argument I intended to make. I remain agnostic on that question. Based on the publicly available evidence, it seems possible that 1) Trayvon Martin started the fight and created a reasonable fear of death or serious injury, justifying George Zimmerman's use of deadly force, or 2) Zimmerman panicked and shot Martin in circumstances that did not justify the use of deadly force (or accidentally shot him and made up a cover story afterward). In either of those scenarios, it is also possible that Martin's use of force was justified by the threat he reasonably perceived from Zimmerman. As I said in a column earlier this month, we don't know enough yet to answer crucial questions about the case and therefore should avoid jumping to conclusions.
Yet that is exactly what Chicago Tribune columnist Eric Zorn accuses me of, based on this quote from my column:
If [George Zimmerman] went to trial, he would be (or at least should be) acquitted with that much evidence in his favor, since the prosecution has to prove beyond a reasonable doubt that he was not acting in self-defense.
"Unless Sullum has gotten a private peek at the bulk of evidence still under wraps," Zorn writes, "he has no idea what the jury 'should' find or even if it should go to trial at all." I agree. Here is the full paragraph from my column:
One unusual aspect of Florida's law that will be apparent in this case is that Zimmerman has a right to pretrial hearing at which he can try to convince Judge Kenneth Lester, by "a preponderance of the evidence," that he acted in self-defense. If he can meet that standard of proof, which requires showing it is more likely than not that his use of force was appropriate, the charge against him will be dismissed. But even if he went to trial, he would be (or at least should be) acquitted with that much evidence in his favor, since the prosecution has to prove beyond a reasonable doubt that he was not acting in self-defense—which, as Northern Kentucky University law professor Michael J.Z. Mannheimer has pointed out, would be true "in virtually every state."
In other words, if Zimmerman could prove his self-defense claim by a preponderance of the evidence, that would be more than enough for an acquittal, assuming the jury correctly applied the "beyond a reasonable doubt" standard. If it's more likely than not that Zimmerman's use of force was lawful (the standard for dismissing the charge against him), it necessarily follows that his guilt cannot be established beyond a reasonable doubt. But I am not saying that Zimmerman should prevail in the pretrial hearing or that he should be acquitted (although I do think manslaughter is a more appropriate charge than second-degree murder). My point is that allowing Zimmerman to avoid a trial if he can meet the preponderance-of-the-evidence standard does not (or should not) affect the outcome of the case. Assuming he can show he is probably not guilty, he would be acquitted even if he did not have a right to a pretrial hearing on his self-defense claim.