Hey folks,

As the Professor announced this past Sunday, I will be covering the Zimmerman trial (starting Monday, June 10) nearly-live right here on Legal Insurrection.  My commitment is to provide reality-based analysis, without the speculation, spin, and snark we’ve seen too much of already.

In this first post I’d like to start at the beginning, and talk about the criminal charge that’s been brought against Zimmerman–murder in the second degree (“murder 2”), and the legal thresholds the prosecution will need to overcome to achieve a conviction.

After all, unless the prosecution can prove the elements of a crime beyond a reasonable doubt we won’t even get to matters of self defense.  (Zimmerman is also subject to conviction on a lesser included charge, manslaughter, which I’ll explain more at the end of this post, but for now we’ll focus on the murder 2 charge that has carried us to this point.)

One small disclaimer:  the analysis below is based on the evidence that’s been released to the public to date.  It’s always possible that new evidence could emerge to change the picture of things substantially, and of course anytime a witness takes the stand there’s always a chance for a wildcard revelation.  Being reality-based means changes in the reality (e.g., evidence) will drive changes in our analysis.  Fair warning!

69351562

[ Zimmerman facing murder 2 ]

Florida defines murder in the second degree as:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree . . .

Florida’s standard jury instruction for murder 2 notes that:

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

  1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
  2. is done from ill will, hatred, spite, or an evil intent, and
  3. is of such a nature that the act itself indicates an indifference to human life.

Notice step 2.  Under Florida law the mere fact that an armed man kills another who is unarmed does not prove a “depraved mind” (Poole v. State, Bellamy v. State, and Light v. State).  Typically, the prosecution proves “ill will, hatred, spite, or an evil intent” through evidence of a long-standing grievance or some unusually wrongful or aggressive conduct on the part of the attacker.

In this case Zimmerman and Martin did not know each other, so there was no existing grievance.  That’s why the prosecution’s narrative claims that Zimmerman “profiled, pursued, and killed” Martin, describing his conduct as that of a racist, “wannabe” cop who ruthlessly pursued the frightened Martin.

Let’s examine the evidentiary basis for both the “racist” and “pursuit” lines of argument.

Zimmerman as Racist

Racism and a “depraved mind” are well linked in Florida law.  In Hooker v. State , for example, Hooker killed a man while “looking for Mexicans to run out of town”.  The appellate court said his racially motivated actions “fell squarely within the statutory definition of second degree murder, … evincing a depraved mind.“

This is the real reason why the prosecution and the Martin family either blatantly encouraged or (at minimum) didn’t discourage these now-debunked stories:

  • NBC falsely doctored the 911 call to make it look like Zimmerman mentioned Martin’s race to the dispatcher unprompted, when in fact the dispatcher asked him.
  • CNN claimed George said “f**king coon” on the 911 tape, a horrible racial slur.  Tom Owen, an audio forensics expert, confirmed Zimmerman’s claim that he said ‘f***king punks’.

At the same time, any facts that didn’t fit the “racist” narrative found little mainstream coverage, including:

  • Zimmerman and his wife tutored black (and white) children for free on weekends.
  • Zimmerman partnered with an African-American to open a business in 2004.
  • When the white son of a local police lieutenant escaped discipline after beating a black man Zimmerman circulated flyers demanding punishment.
  • The FBI spent months looking for a racial motivation in this killing, but found no evidence to support such a finding.

Today, 16 months after the shooting, there remains no substantive evidence that Zimmerman is racist.

Zimmerman As Pursuer

Witness 8 statement

[ Witness 8 – note misspelling of Trayvon’s name ]

Alternatively, the prosecution can try their hand at proving that Zimmerman engaged in an unrelenting pursuit of his ‘perp’.  The only direct evidence of this comes from the testimony of the now infamous Witness #8, who claimed she was on the phone with Martin leading up to the conflict.  She recounted how Martin told her he was being followed, how he broke contact, and then was followed yet again.  She claimed she could she could overhear Trayvon ask Zimmerman why he was following him, then hear Trayvon getting knocked down.  If true, Zimmerman was clearly the aggressor, supporting depraved mind.

Unfortunately, witness 8 has proved considerably less honest than the prosecution would hope.  She lied under oath about why it took her more than three weeks to come forward (she was not, as she said, in the hospital), she was 18 years old at the time and not 16 as claimed, and although she was presented as Trayvon’s girlfriend she repeatedly misspelled his name.

There’s also the fact that she never approached prosecutors, instead being ‘found’ by the family’s lawyer and introduced to the world via an interview published to media outlets—that lawyer has now been ordered deposed.

Absent alternative evidence that Zimmerman unrelentingly pursued Martin, the prosecution will have a difficult time claiming an aggressive pursuit as evidence of Zimmerman’s depraved mind.

Zimmerman_courtroom

Zimmerman’s Call to Police:  Act of a “Depraved Mind”?

Perhaps the single most powerful piece of evidence against Zimmerman having acted with a “depraved mind” is his call to the  police.  In his role as the appointed neighborhood watch captain of the Home Owners Association (HOA) Zimmerman phoned police to report a suspicious person in a neighborhood recently troubled with a string of robberies, and he stayed on the phone requesting police assistance even after losing sight of Martin.

In the dozens of Florida cases I have read that address the issue of a “depraved mind” murder, not one defendant described as possessing a “depraved mind” phoned police immediately prior to the killing and kept them informed in real time as the situation developed.

Perhaps new evidence will emerge during the trial.   Today, however, there is a lack of substantive evidence of Zimmerman’s “depraved mind”.  This makes it is difficult to imagine how any rational jury could conclude that the prosecution has proven, beyond a reasonable doubt, that Zimmerman is guilty of murder 2.

Manslaughter—The Next Iteration of the Narrative?

Why charge murder 2 on such little evidence of a “depraved mind”?  Perhaps the prosecution believed more damning evidence would be found, or they hoped that the murder charge would lead to a plea bargain or compromise jury verdict on manslaughter.  In Florida manslaughter is a lesser included offense to murder 2, and the jury will certainly have the manslaughter instruction to consider in their deliberations. .

Indeed, unless new and revelatory evidence emerges of Zimmerman’s “depraved mind”, I anticipate the prosecution’s narrative to re-center on manslaughter as their most likely “win” in this case.  We’ll discuss how manslaughter differs from murder 2, and how such a shift might play out in this trial, in a future post.


Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense,” now available in its just released 2nd Edition, which shows you how to successfully fight the 20-to-life legal battle everyone faces after defending themselves. UPDATE: July 5, 2013 is the LAST DAY to take advantage of the 30% pre-order discount, only $35, plus free shipping. To do so simply visit the Law of Self Defense blog.

BREAKING: “The Law of Self Defense, 2nd Edition” is now also being carried by Amazon.com, at list price but with a commitment for 2-day delivery.  A Kindle version to come within a week or so (I hope).

Many thanks to Professor Jacobson for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!

You can follow Andrew on Twitter on @LawSelfDefense (or @LawSelfDefense2 if I’m in Twitmo, follow both!)on Facebook, and at his blog, The Law of Self Defense.