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.
Digital – the case in Tulsa that induced that clown to go on a killing spree was a guy attacking a burgler at a neighbors place. The guy hit the burgler with a stick and came after him with a bat. He shot the guy. While he is doing time for burglary he could not be chagred with murder because of OK’s stupid SYG law.
Even as a gun owner I find these laws to be way over the top stupid.
There are several sick, sad, bits in this drama. Almost ignored is that state with SYG laws have much higher rates of “self-defense” shootings & not much change in random killings. This is a return to the wild west and an invitation to abuse.
Secondly, crap like this or the case in Baltimore happen regularly around
the country and how they get handled is too often a fluke or the result of public outrage. That is no way to build respect for law and justice. This is the result of a lot of small changes: Militarizing the police, reducing funding for and the number of police who could deal with these things, ever more revenge driven public opinion, The eternal media circus that loves to focus on the latest missing pretty white girl taking time form other investigations and a host of minor things that all add up in the wrong direction.
I have a question. If a person tries to use the “Stand your ground” law in self defense, say for instance some dude is stalking you and appears intent on attacking you, but in the process the stalker or a friend of his decides to react with deadly force.
Can the stalker claim “Self Defense” because he felt his life was endangered? Basically, can everyone use this law to justify every action?
I hardly think what happened in the Horn case in Texas is germain at all since the law clearly allowed for the use of deadly force to stop the commission of a crime in progress. As I have pointed out earlier, Horn went further than the law required since he gave the burglars a chance to surrender their loot. The crooks decided that the loot was more important than their lives so they ran and were legally shot and killed.
Unless you think that armed guards should be banned, you have to agree with the Texas law and it proper application in Horns case.
Public outcry overruled ol’ boy back scratchin’. What a god damned sick system.
W=^..^
They do, if as OS noted, the lesser included offenses are included in the intial charge (and the usually are).
This was the obvious next step in the legal process. I just blogged on what could happen if Zimmerman is found not guilty. Think of that. The resulting chaos will make the beginning of this sad chapter look mild.
Jeff Metz
http://www.mostly-right.com
Gene H.1, April 12, 2012 at 9:37 am
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when this is tried, doesn’t the jury have the ability to apply lesser charges if that is where they discern guilt, if any?
The Sanford Police Department detective who applied for an arrest warrant, very early in the case, listed homicide / manslaughter on the application.
Lesser included offenses for Second degree (depraved mind) murder 782.04(2), are: Manslaughter — 782.07; Third degree (felony) murder — 782.04(4); Attempt, Culpable negligence — 784.05(2), Aggravated battery — 784.045, Aggravated assault — 784.021, Battery — 784.03, and Assault — 784.011.
See e.g. Brown v. State, 206 So.2d 377 (Fla. 1968).
Is that how it’s done? Overcharge to force a plea? Just another example of a screwed up “justice” system.
Hopefully the prosecutor learned something from the Casey Anthony verdict and will not put all her eggs into one basket. Look for lesser included charges to be tacked on if this ever goes to trial.
Mike A.,
Thanks and agreed. I wonder what Vegas says or if anyone has a prediction market going on the question?
rc,
“It’s sad that it took a national publicity effort to get done what should have been routine, but there you have it.”
That sums up my whole bone of contention from the start. Well said.
Wow, that sounds like a charge designed to secure a pre-meditated dismissal. Then the prosecutor can say “Hey, I tried, what else can I do?”
Or perhaps it is a scare tactic, to get Zimmerman to plead down to manslaughter.
Gene H.:
I think you got it exactly right. I understand that this prosecutor has a reputation for overcharging. I still think we’ll see a manslaughter plea somewhere down the road.
“You might just as well spend your time licking your crotch talkindog.”
That’s your answer for everything isn’t it, Frankly? Building a better tomorrow through more crotch licking! You know . . . that’s . . . not a half bad idea if implemented properly. It takes a village. 😀
But you’re right on topic. This is still going to be a media circus even if She Who Must Not Be Named doesn’t sink her cadaverous fangs into the story. To wish otherwise is indeed wishful thinking.
At least each side will get their say in court. That’s all the family, the statre and the public can ask at this point. Zimmerman could be acquitted. He may get a plea deal to a manslaughter charge which is the current odds-on bet. He might even be found quilty.
He can still assert the “Stand Your Ground” defense and he likely will. In my conspiracy theory mind I can see a Florida judge tossing the case on Stand Your Ground basis. That would absolve Gov. Scott and the Special Prosecutor who could still be seen politically as going the extra mile while Zimmerman could still go free. But, at least it’ll play out in the public arena rather than having the Stanford Police Chief make the decision that no arrest was necessary despite a young boy being shot dead and the recommendation of the lead detective. It’s sad that it took a national publicity effort to get done what should have been routine, but there you have it.
“Based on the current evidence, I would be surprised if she could secure a conviction for second-degree murder.”
Agreed. As I’ve said elsewhere on the blog, I think she’s overcharging to force a plea, but I’m willing to consider her evidence.
You might just as well spend your time licking your crotch talkindog. In modern day America neither side will allow a day to go by without the PR machine cranking out some bullshit to put their side in the best possible light. Then there is the whole media machine full of ghouls like Nancy Grace who feed on the souls of people dumb enough to watch them.
No matter what you think about this case there will be plenty to be outraged about even befoer the jury returns a verdict.
Now that he is chartged with murder it is time for all the critics and pundits to back off and allow the man a free trial. There is a jury pool out there and we do not need the Third Reich tactics of weighing in on his guilt in the media. Each one of us who wants to go on about his guilt and his bigotry is henceforth intentionally attempting to deny him a fair trial. This blog should discuss this problem and we should get out in front of this issue and not be part of the problem of denial of due process and fair trial in America.
He is gonna need some dogs on that jury panel that listen and dont bark first.