Breaking: Charge on Murder 3/Child Abuse is denied by Judge Nelson
This morning the Court in Florida v. Zimmerman conducted a hearing to finalize the instructions that will guide the jury on arriving at a verdict. While some of the instructions were long-expected and raised little debate, others could only be described as a preposterous effort of the State prosecutors to ambush the defendant, George Zimmerman, with the effect of once again denying Zimmerman his Constitutional right to due process.
I’ve gathered all the relevant jury instructions over at my Law of Self Defense blog (www.lawofselfdefense.com), and here will provide a brief overview and a link back to the full-length instruction there.
Florida Jury Instruction 7.4, Murder–second degree, is based on Florida statute 782.04, section (2) of which covers second degree murder.
Second degree murder has been the primary criminal charge against Zimmerman since the initial affidavit of probable cause. It’s requirement that Zimmerman must have acted with the characteristics of a “depraved mind” –hatred, ill-will, or spite directed at Trayvon Martin–and the absence of evidence of that state of mind has always made it unlikely that the State could obtain a conviction on this charge.
In Florida manslaughter is a lesser-included charge of second degree murder, so it was always inevitable that the jury would be read this instruction as well. Here, it is quite possible that the State may be able to prove the elements of the crime beyond a reasonable doubt–essentially that Zimmerman deliberately used force against Martin, and that Martin died as a result.
The challenge for the State, then, comes in the second half of the analysis in any self-defense case, and that is where the defendant claims that, yes, he did commit the acts with which he was charged but he was legally justified in doing so because he was acting in lawful self-defense. Self-defense is an absolute defense against conviction of any intentional crime, if accepted by the jury as true.
There had also been the suggestion that the State would seek to have the jury instructed on aggravated assault and/or aggravated battery. These charges are almost never brought when the outcome of the crime happens to be a dead person–that’s what murder and manslaughter are for. The State’s desire to include these, then, simply reflects a cynical effort to offer the jury something on which they could return a “compromise” verdict of guilt. In the end the State elected to not pursue these instructions.
The real shocker, however, came when the State sought to have the jury instructed on third-degree murder, the first time in this lengthy trial that this particular charge has been mentioned. Third-degree murder involves a killing with an underlying felony, and is included in the murder jury instructions.
In this case, the State is arguing that because Martin was 17-years-old he was a minor, and therefore Zimmerman’s act of shooting him was an act of child abuse. It appears initially that Nelson may be amenable to instructing the jury on this preposterous charge. Doing so would simply add to the mountain of improper decisions this Judge has made that will certainly result in any guilty verdict being overturned on appeal.
There has also been some wrangling on specific language each side has desired on such issues as “provocation” and “serious bodily harm,” and for the most part Judge Nelson has seemed to discard the desired variation on the standard jury instruction.
That’s all I have time for right now, be sure to follow us back at the live coverage:
–Andrew
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