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Getting to Murder 2: Finding George Zimmerman’s “Depraved Mind”

Getting to Murder 2: Finding George Zimmerman’s “Depraved Mind”

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!


[ 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’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, 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.


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Juba Doobai! | June 5, 2013 at 8:05 pm

So, the prosecution, knowing it doesn’t really have a case, is mounting a kitchen sink attack in the hope Zimmerman is convicted of something, anything, for the crime of defending his life against the man who, if Obama had a son he would’ve looked like Trayvon.

“Over-charging” is a tactic.

It is a tactic used every day in many venues across the U.S.

It is not unlike “anchoring” in civil litigation, where a very high number in the defensible range of damage awards is pled and argued to a jury. Not that the high range is the expected award, but in hopes that the jury will find, as they often do, some lesser award to be appropriate.

You or I may not like the tactic as applied by prosecutors. But, unless you can show posts from other cases where you had your hair on fire over its use with a less sympathetic defendant, I will snort at your protestations of its application here.

The fact is, many or most of you would warmly approve of it if applied to another case, and have.

We have given prosecutors the power…and it is a power…to apply what tactics they have which fall into the rubric of “acceptable”, and that is all you see here.

    what protest are you seeing?
    all I saw was he said it could be a tactic. didn’t see any opinion one way or the other about it in the writings.

    was your reply supposed to be to the first poster? if so then your response makes sense but if its direct reply to the author I don’t get it.

      Ragspierre in reply to dmacleo. | June 6, 2013 at 6:51 am

      See below. I know this topic, having been around this barn before.

      According to the solemn declarations of some of the posters here, Zimmerman died sometime last winter, is a political prisoner, cannot get a fair trial, will be railroaded, is a hero, etc.

      The prosecutors and police (led by a lady, we all agree, who is a decided whack-job) are all paid killers who take their orders from a cabal of dark Florida interests, presided over by RINOS. They have repeatedly deeply transgressed Florida criminal procedure and hover on the brink of disbarment.

      Except they haven’t, and are not.

      This was…and still should be…a garden-variety shooting in a medium-sized American city. But WAY too many people have become WAY too emotionally invested in it to think rationally.

    Estragon in reply to Ragspierre. | June 5, 2013 at 11:47 pm

    This is no normal case.

    The initial investigation, without the political pressure and media circus, resulting in an evaluation there was no case at all.

    Now, famous race pimp Ben Crump is demanding the jury members’ names and addresses be made public. Imagine the pressure those people will be under! Remember, people have DIED after Sharpton incited “protests” in NYC.

    So, in effect, it is circumventing justice to railroad Zimmerman into a lesser charge. It’s a travesty, not a mere tactic.

      Yes, an Australian citizen was killed in New York after Sharpton caused the Crown riots.

        BannedbytheGuardian in reply to Aussie. | June 6, 2013 at 1:57 am

        It is sad because as an ferocious anti Syrian he would have been safer living in the Golan heights that he used to preach about as being about to be overrun.

        In the rare event Syrians would have jumped over & stabbed him , he would have been fixed up by the Israelis.

        After listening to his rants I have learnt to be very sanguine about Syria. So there is that.

        BannedbytheGuardian in reply to Aussie. | June 6, 2013 at 2:17 am

        The actual cause of death was medical negligence. Yankel was expected to survive but they missed vital signs.

        But I very much agree with the race implications .

          Juba Doobai! in reply to BannedbytheGuardian. | June 6, 2013 at 2:45 am

          Nevertheless had that young man, whose name escapes me now, not stuck a knife into Yankel Rosenbaum, just because he was a Jew, the doctors would not have had cause to miss any injury.

          BannedbytheGuardian in reply to BannedbytheGuardian. | June 6, 2013 at 4:04 am

          That is true Juba. It was only the Rosenbaum family investigations that unearthed the fact .

          This was latched onto by the sharpton set as – see what sort of medical we blacks gotta suffer here in Crown Heights.!!!

      Uncle Samuel in reply to Estragon. | June 6, 2013 at 8:27 am

      Sharpton also incited racism and put out false allegations in the Tawana Brawley case.

      Truth and integrity do not reside in Sharpton’s heart.

    Juba Doobai! in reply to Ragspierre. | June 6, 2013 at 2:42 am

    I appreciate what you’re saying, Rags, and I know it to be true. What is despicable in this matter is that Zimmerman was charged at all, the lies of the prosecutor and those who have the power to sentence Zimmerman when the evidence indicates that he acted in self-defense.

    The law is what it is, an ass. The people have given prosecutors too much power to hang us. So, your comments point to the need, seen with other over-zealous prosecutors, for us to limit what prosecutors do when they don’t have enough to build a strong case.

    No more kitchen sink cases.

stevewhitemd | June 5, 2013 at 9:41 pm

First, a big thank you to Mr. Branca for the post. If this is a sample of what is to come we at LI are in for a real treat.

Thanks especially for the walk-through of what ‘depraved’ means under the law. I now get it.

    Mary Sue in reply to stevewhitemd. | June 5, 2013 at 10:07 pm

    It certainly does seem as though we are in for a treat. I agree completely and second that big thank you. This was very helpful.

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.

this, the misspelled name, her whole scenario has always bugged me and I have been hoping to see this really examined during trial. I suspect a plant, I suspect the family expected GZ to fold and settle.

“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:

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

Um, ain’t that what Martin was trying to do to Zimmerman?

This trial to me is just another example of liberals gone wild trying to justify criminal behavior as an asset and tossing common sense to the wind…

JackRussellTerrierist | June 5, 2013 at 11:22 pm

It seems to me we are about to see reverse nullification if Corey gets the jury she wants. The same is true of Mike Nifong. Only outstanding defense lawyering waylaid him.

There was no crime committed in that case, nor any here. What will be different here is the quality of defense representation.

Zimmerman is deeply in jeopardy.

Surely by now you know that Zimmerman did not call 911 that night.

Thank you for this great contribution to the discussion about this case. I’m sure you’ll get to it in future posts, but I’m curious about how Zimmerman’s self-defense claim plays into the charges he faces. My understanding is that, regardless of whether he was the aggressor or not, under the Florida statute Zimmerman was free to use deadly force to stop Martin to the extent that as the altercation progressed he believed that his life was in imminent danger or that he was about to sustain great bodily harm. As you’ve laid the case out in your post, the notion of Zimmerman as the aggressor will certainly play a role as the prosecution attempts to make its case. I think many are incredulous that Zimmerman could possibly be the aggressor AND still be entitled to claim self-defense.

Uncle Samuel | June 6, 2013 at 8:21 am

Depravity and a criminal mindset was/is evident on every side *BUT* the Zimmerman family.

* Crump and the media distorted and obscured evidence and the true character of Trayvon Martin. They still seek to suppress and distort evidence.

* The race baiters, Sharpton, the Black Panthers, and Obama were seeking to inflame opinion, influence an investigation and divert the cause of justice. Obviously, Obama and Holder do not care about justice (EPA, OSHA, IRS, DOJ, NSA, etc.) It’s all about Obama’s sons and Holder’s people. Not a peep from Obama when his sons beat an old man senseless in Jacksonville and the same sort of hate crime (black on white) takes place in hundreds of other cities.

*The prosecution and investigation team cowered to pressure. Crump donated a million dollars to a FL legal defense fund, so he is a big man in FL. This likely influenced the prosecution.

*They wrongly allowed a civil suit to precede a criminal case.

* Evidence shows Trayvon was involved in criminal activity, loved violence and had a angry depraved mind, possibly drug-induced. He is the product of the Black gangsta fad culture and a broken family.

* By contrast, George Zimmerman, his father and brother are fair-minded persons who have responded to this horrible situation in thoughtful and appropriate law-abiding ways.

I like your analysis, but I return to item #1: “a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and …”

At worst, Zimmerman was following Martin to gather facts. That’s not very different than what a journalist is supposed to do. (Not that MSM media maggots actually do real journalism these days, but I remember a time when journalists actually went after corrupt officials.) There is no way that qualifies as something that would lead to serious bodily harm.

And once an altercation developed, the same thing applies: a fight with the smaller, younger Martin is basically a coin flip. Serious bodily harm is not likely to develop unless:
1. One party ambushes the other. I don’t see evidence that Zimmerman did that.
2. Once a full-fledged fight develops, one party gets the upper hand and leverages their advantage to inflict more harm. Martin didn’t sustain serious injuries — other than the bruising in his hands. Zimmerman did. Would a reasonable person believe that Martin could be a threat to Zimmerman by continuing to beat on him? I’d say yes. Is there any evidence to suggest that Zimmerman leveraged his advantage to inflict harm? I’d say no.

The State could try to make the case that Zimmerman’s action that led to a situation where serious bodily harm may occur was when he left home carrying a firearm, but that doesn’t cut it as self-defense is a lawful use of a weapon.

The State’s basic idea would have to be that Zimmerman did not have to deploy his weapon but, instead, should endure the beating. They are going to have to show that Martin could never pose a serious threat to Zimmerman no matter what he did. Good luck.

I think that the State is wasting everyone’s time with this. They fail two-thirds of the requirements hands down. They are trying to increase Zimmerman’s costs and show for TV that they are doing everything they can. I hope they loose big time. I don’t see that they have a case.

[…] first Zimmerman-related blog post went live on Legal Insurrection this evening:  Getting to Murder 2:  Finding George Zimmerman’s “Depraved Mind”.  In it I talk about the fact that the prosecutors need to prove, beyond a reasonable doubt, that […]

[…] In this case Zimmerman and Martin did not know each other, so there was no existing grievance.…depraved-mind/ Read it and weep in greater detail… Undisputed 2012/13 Debating Champion! Reply With […]

[…] element of murder in the second degree, the crime with which the State wanted to charge Zimmerman (click here for an in-depth explanation of Florida’s “depraved mind” requirement fo….).  Perhaps if they could prove that Zimmerman had killed Martin, even if only in part, for racial […]

Bert_Sterling | June 18, 2013 at 12:10 pm

Thank you for the professional analysis, Mr. Branca. My amateur analysis is along the same lines but much less in-depth. Simply, Zimmerman did not fire out of “ill will, hatred, spite, or an evil intent.” He fired because of the “fight” or the “attack.” Now, the prosecution could argue that he watched, pursued, and/or “profiled” Trayvon out of racism (thus ill will), but the following is not the act that caused Trayvon’s death. There’s no evidence that the shooting itself was out of ill will, and lots of evidence that it was done because of the physical confrontation.

I would love to hear your analysis of the manslaughter LIO. My (again, NON-professional) understanding is that a homicide is justifiable if the defendant was “resisting an attempt to murder or commit a felony upon the defendant.” In this case, that felony is going to be aggravated or felony battery, which entail “great bodily harm, permanent disability, or permanent disfigurement.”

Now, I don’t know whether the broken nose is, in and of itself, “great bodily harm.” A broken nose *can* be permanently disfiguring, but it this case it doesn’t appear to have been. Nonetheless, the defendant doesn’t have to have suffered great bodily harm to be resisting an attempt at great bodily harm. Had Trayvon continued to beat Zimmerman, surely there could have been a good likelihood of further broken facial bones, concussion, or loss of consciousness. And according to Montijo v. State, among others, the burden remains on the prosecution. Zimmerman does not have to *prove* he was resisting an attempted felony; the state has to prove he was not.

And barring that, if somehow the jury does not believe that Zimmerman would have been in danger of serious bodily harm, Florida’s 776 statutes come into play, and the state will have to prove that Zimmerman didn’t *reasonably believe* he was in danger of serious bodily harm.

It seems to me that if the jury will follow the judge’s instructions, the prosecution has an insurmountable burden of proof.

Can’t wait for your professional analysis!