Zimmerman Charged With Murder But Can The State Make The Case For Second Degree Murder?

The second degree murder charge of George Zimmerman has received widespread approval. I am in Fort Worth to speak to the Fort Worth Lecture Foundation this afternoon. However, I am receiving a lot of calls on the basis for the charge. I must confess that I am not optimistic on the chances of a conviction unless the special prosecutor has undisclosed evidence to meet the high standard under the state law.  As I discussed on BBC last night, there are substantial challenges to make such a charge stick in this case.

I was surprised to see a second-degree murder charge which requires proof beyond a reasonable doubt that a person was killed, without any premeditated design, by an act imminently dangerous to another and evincing a depraved mind showing no regard for human life. This is a lower standard than the premeditated standard for first degree murder. However, the evidence in the case would seem to more closely resemble manslaughter. Section 782.07(1) provides that standard:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree ….

Special Prosecutor Corey went for the maximum charge allowed without using a grand jury. The decision not to go to a grand jury knocked out the availability of murder in the first degree — though such a charge would be highly questionable on these facts.

In Corey’s defense, she is merely giving the state a chance to make the case before a state judge who will first have to decide whether there is a viable affirmative defense under the Stand Your Ground law. It is at that stage that we will be able to see what new evidence Corey has to support the case. I remain doubtful on the chances solely due to the language of the state law and past rulings of state judges — absent more evidence of malice or depravity by Zimmerman. However, I have previously maintained that there was ample evidence to arrest Zimmerman at the scene.

Zimmerman is reportedly maintaining that that he shot 17-year-old Trayvon Martin after a struggle and in self-defense. “Stand Your Ground” law allows individuals who feel threatened in a public place to “meet force with force,” rather than retreat. Moreover, while Zimmerman claims Martin came at him, citizens are allowed to allowed suspicious individuals in their neighborhood.
Zimmerman says that he was driving to a grocery store when he saw Martin walking through the gated community and called the police to report a suspicious person. He says that he was bleeding and injured from the encounter. There is ample reason to contest those assertions, but the past application of this law shows a considerable deference given defendants in the use of force. We discussed the prior ruling in the the case of Greyston Garcia and the dangerous ambiguity created by these laws. The second-degree murder charges against Garcia were thrown out by a Florida judge under the Stand Your Ground law despite the fact that he did not just stand his ground, but ran after a man who tried to steal his car radio and proceeded to stab the unarmed man to death.

As discussed previously, I have been a long critic of these laws and the earlier Castle Doctrine or “Make My Day” laws. These laws address a problem that does not exist. There are ample protections under the common law for individuals to use the privilege of self-defense, including reasonable mistaken self-defense. As noted earlier, I find it a bit maddening to hear Florida legislators now claim to have never anticipated abuses under these laws. Critics like myself have been vocal about the potential for abuse under these laws for years. Legislators have ignored those warnings because of the popularity of these laws.

The problem with both “Make My Day laws” (applying to the home) and “Stand Your Ground laws” (applying in “other places”) is that they facilitate or enable those who are inclined to use lethal force. The Horn case out of Texas is such an example where, as with Zimmerman, Joe Horn ignored instructions not to confront the suspects. Even cases that border on executions have been found protected under such laws.

In the earlier case, Garcia, 25, saw Pedro Roteta, 26, trying to steal the radio from his truck outside Garcia’s Miami apartment. He grabbed a large knife and chased the unarmed Roteta down the street and proceeded to stab him to death. This week, the state judge threw out the charges under the state’s “stand your ground” law.

Cases like Garcia undermine the confidence in the Zimmerman charges. Putting aside the affirmative defense, Corey would need to show much more than is currently known to support a second-degree murder charge, in my view. Based on the current evidence, I would be surprised if she could secure a conviction for second-degree murder.

Zimmerman today is seeking bail and should receive it under the state standard. He turned himself in and cooperated with the police at the scene of the alleged crime.  While he has a prior minor record, the prior conduct would not normally be a barrier to release on bond.

135 thoughts on “Zimmerman Charged With Murder But Can The State Make The Case For Second Degree Murder?”

  1. It occurs to me now: Zimmerman is in jail. There should be a complete physical of him, including x-rays, to make sure of his physical condition right now, at “base-line” because there may be some questions down the line. Possibly, also, a bone broken on 2/26/2012 will still show something on an x-ray on 6/6/2012. Right?

  2. @Gene H — I think there are lots of Americans who confuse “crime” with “doing stuff I don’t like.” Zimmerman did not observe Martin committing any crime, yet Officer Ayala’s police report indicated that at least one officer that night intended to charge him with the crime of accidentally killing someone while trying to apprehend them as they were committing a crime. The attitude persists on many public forums [forgive grammar please] that Zimmerman was not doing anything wrong by following and confronting a person who was “looking suspicious” or “acting wrong” or any variation on that theme. THere are indignant mini-tantrums flying all over the web about Martin’s responses or reactions having been less than optimal or even just “other than” what Zimmerman’s supporters would have had the be! And all this says nothing. You don’t get to shoot someone for acting, dressing, behaving, speaking, or otherwise conducting themselves in a way that you don’t like. And you don’t get to excuse having shot them by bringing up any of these issues to “justify” your behavior.

    Only the legislature can define crimes. If you haven’t done anything that can fit into one of those descriptions, and EVEN IF YOU HAVE, you’re not supposed to have to fear being shot by someone who doesn’t like your conduct at any particular time.

  3. There you go, Tony.

    Puncturing male macho fantasies everywhere.

    Intervening to stop a crime in progress is only excusable under exigent circumstances, but it is never recommended.

  4. @Bosco: Would you have approached someone that ,hypothetically, was acting in a suspicious manner under those particular circumstances, have walked up to the guy and asked him that?

    Apparently that is precisely what Zimmerman did; the earwitness testimony of the girlfriend is that Trayvon asked Zimmerman “Why are you following me?” and Zimmerman replied “What are you doing here?” and then she heard what sounded to her like a scuffle.

    A “neighborhood WATCH” is not a neighborhood cop, vigilante, deputy or other law enforcement. If he had stuck to watching we would not be having this conversation. He could have watched, witnessed any crime committed, taken pictures, written down license plates or addresses or called the cops. All of those are within the scope of a neighborhood WATCH. Confrontation of any kind is not, we have hired and trained professionals for that job, and it should be left to them and not undertaken by amateurs without any authority or training.

  5. Leander ,first of all my intentions here are not to insult you or create an argument. I appreciate your responses especially this one. Ill say this about GZ’s 911 words,
    “This guy looks like he’s up to no good, or he’s on drugs or something..”
    We weren’t there to see what GZ saw. TM could very well have been acting in an erratic way based upon GZ’s statement. Who are we to say that is a lie? Keep in mind, GZ volunteered to be a part of the Neighborhood Watch Group” That organizations title is
    SELF EXPLANATORY as to why GZ got out of the car to see where this guy was going next. Especially when there had been in that area, a rash of home break ins in the last few weeks. Most of which done by young black men.
    You ask ,”..why doesn’t (GZ) simply ask “the real suspicious guy”, who he is and what he is doing there?”
    Would you have approached someone that ,hypothetically, was acting in a suspicious manner under those particular circumstances, have walked up to the guy and asked him that? Unless your SUPERMAN you would NOT.
    I live here in the near west side of Chicago,Im a mixed Latino/White person
    too. If i see something suspicious ,Ill watch to see if it results to anything that would lend to having the police come out. I will not approach anyone here. Anything can happen. Im not a member of a neighborhood Watch group but i WILL call the police if i see something that isnt right to the eye. No matter what color the other person might be.

  6. Bosco, I am not parroting anything I read somewhere. Quite the opposite I do not agree with many of the assumptions made, e.g. I don’t hear car noises, or car doors open and shut, or clicks of seat belts. I spontaneously made the above up, it was meant to be provocative.

    It’s an interesting case. I don’t think that Zimmerman is a “cold blooded racist killer”. I am interested in the human issue, which means interested in both victim and shooter. The psychological profile, the people they are or were at the time that resulted in a death. I do not completely trust the witnesses on either side.

    Can I ask you some questions? When Zimmerman first reported the “suspect”, he stated:

    Zimmerman: Hey we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy, uh, [near] Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he’s up to no good, or he’s on drugs or something. It’s raining and he’s just walking around, looking about.

    We had some break-ins in my neighborhood, a couple of years back. You obviously react to strangers, and people that appear suspicious to you. Now why doesn’t he simply ask “the real suspicious guy”, who he is and what he is doing there?

    Why does he think TM is on drugs or something? What signs do people have that are up to no good? Do you occasionally go out in spite of the fact it is raining? If you stay for a short holiday somewhere aren’t you looking around? What does it mean in GZ’s mind that the “suspect” is now running and running towards the back entrance in your opinion? He could have put it any other way. Earlier he gives precise descriptions, no matter how on edge he seems to be about having to do it, on at least one point.

    Admittedly I never had a chance to listen to something similar.

  7. Leander, It is true that we will never know EXACTLY what happened between these two BUT once we get all of the FACTS pertaining to this tradgedy we will be a lot closer to knowing what happened instead of SPECULATING to what happened. For example ,those that have stated as a fact because of SPECULATION that Zimmerman is a cold blooded racist killer. Media manipulation is a big part of this slanted view. For ‘us’ to parrot what we have heard others say,,i.e.
    ‘Zimmerman called Martin a coon on the 911’ is irresponsible at best, no matter where you are from.

  8. Judge steps aside from Zimmerman-Martin murder case

    MSNBC says, “Seminole County Circuit Judge Jessica Recksiedler took herself off George Zimmerman’s second-degree murder case on Wednesday because of a possible conflict of interest.

    The new judge on the case is Judge Kenneth Lester Jr., a 15-year veteran who has heard death penalty cases, the Orlando Sentinel reported.”

  9. i would refuse to sit in the jury, Bosco. I am clearly biased in this case. Besides I am no American.

    If you prefer this mindset can sit in the jury:

    13 percent of the population, 61% of the homicides.
    Saint Trayvon lived by thug life, and died by thug life. C’est la vie.

    Whatever happens it won’t give TM his life back. Ideally we will learn what really happened, but I somehow doubt.

  10. Leander- so YOU have decided that the following is FACTUAL:
    “Zimmerman: The back entrance. Fucking coons.”

    There has not been any shread of evidence to PROVE that to be true, that he called Martin a “coon”

    YOU have made that assumption which makes you at the very least a BIASED individual in regards to U.S. Justice laws. If there is a jury trial on this case lets HOPE no one like YOU sits in the jury pool.

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