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.
“The malice issue will likely turn on the enhanced voice recording of Zimmerman as he approached Martin”
I’d like to know where in the audio Zimmerman is approaching Martin. The transcript of the call is;
Zimmerman:
Yeah, now he’s coming toward me. He’s got his hands in his waist band.
Now let’s combine this with the statement from Martin’s girlfriend that he was “walking fast”.
So, according to the call transcript, and the account of Martin’s girlfriend, we have Martin walking fast as he approached Zimmerman.
Once the two were close enough, Martin allegedly said something along the lines of “Why are you watching me?” To which Zimmerman responded with “What are you doing here?”
Up until this point, no one had broken any law. No one had a reason to retreat, and no one had justification to suspect a serious threat.
It is the next chain of events that will be important for the judge, and or jury, to decide.
Who initiated any physical assault? Did Martin punch Zimmerman, or did Zimmerman punch Martin? According to Zimmerman, it was Martin who punched him. Zimmerman then, allegedly, was knocked to the ground and Martin then, allegedly, began banging Zimmerman’s head into the ground. The police report would seem to support that. Fire/EMS and a doctor visit allegedly could be used for further support.
Then there were screams for help. These screams could be heard on the recording of the 911 call made by the neighbor. -Who was it that was screaming? We have one audio expert who says it wasn’t Zimmerman, based on the results of a relatively new piece of software. (A demonstration video of that software indicates that a minimum of 6 seconds of acceptable audio is required. Was the software able to acquire 6 seconds of “usable” audio from the redacted recording? I don’t think so, but I’m not an audio expert. Can the software make an accurate comparison based on one word that is being screamed repeatedly? Again, I don’t think so. I think there is not a sufficient sample set, nor have sufficient comparative tests been performed for the software to result in a reliable conclusion at this point. -Then we have the second audio expert, who, by his own admission, would need an in context sample before he could make an expert conclusion.
Let’s look at the reason for someone to scream for help:
If someone has a gun pointed at you, would most people stand there screaming for help, or would most people either (a) try to run away -or- (b) try to calm down the guy who is pointing the gun? -I have yet to hear of someone screaming “help” because a gun was being pointed at them.
If, as Zimmerman claims, Martin was on top of him, and Zimmerman could not get away, would Zimmerman have a reason to call for help? Most people would say yes. How long did the screams for help continue? They continued for over 30 seconds! If someone was on top of you, beating you, for 30 seconds, that would feel like a very long time. And when no help came, and the beating continued, what would you do? How much longer would it continue? -Note: at the time of the shooting; after at least 30 seconds of calling for help, no help was on the scene. If there would have been help in the vicinity, there would have been a witness in close proximity.
If Zimmerman hit Martin, where are his injuries? (other than the gunshot wound that ended any scuffle)
Now let’s look at the neighbor who said she heard “a child crying”, and determined that it must have been Martin who was crying because the crying stopped. If Zimmerman was calling for help, and Martin was crying, she would have surely heard the call for help, but she does not say that. All she claims to have heard was a child crying. -Was it Martin, Zimmerman, or maybe just a neighbor’s child crying? Because it stopped after the gunshot, why would it have to have been Martin? If it was a neighbor’s child crying, the noise of the gunshot might have caused the child to stop out of surprise. If it was Zimmerman or Martin, why would either be crying after the gunshot? Martin couldn’t and Zimmerman would no longer have the need.
2112 says,
“Overcharging to force a plea should be met with disbarment for abuse of the process.”
Actually, no, it’s not nor should that be grounds for disbarment. Judicial resources are limited. Over charging is a valid tactic that forces people with weak cases to plea to what they actually did, saving time and money. Should it be used in every case? No. But then again, it isn’t. It’s usually only done when the prosecution knows for a fact they have a winner on one or more of the lesser included charges.
“Adding in dozens of duplicative ancilliary charges as OS suggests just to allow the jury, suggest to the jury, to convict on something, anything, is also a bullshit abusive maneuver.”
Again, spoken like someone who doesn’t know what the hell they are talking about. Charges for lesser crimes are not duplicative – they are pled in the alternative. Not “and” but rather “or”. Charges for included crimes are “and” – actions that on their own would merit charges. To try all the charges related to an incident separately is hugely inefficient. Your opinion as to what is or isn’t bullshit is, as usual, wrong but you are still entitled to it.
“These are tactics designed not to promote justice, but to game the system and to game around double jeopardy.”
Nonsense. Including lesser and included offenses gives the jury a chance to find someone guilty of a lesser offense instead of forcing them to acquit on a greater charge and triggering double jeopardy. So actually, contrary to what you say, the tactic promotes justice by allowing alteratives to letting criminals walk and claim double jeopardy when they to a standard of proof did indeed commit a crime.
There is one flaw in overcharging though. In a small number of cases, people with inadequate representation might be coerced into accepting a plea deal when a trial would have found them not guility or guility of an even lesser crime. This problem, however, can be mitigated by providing more and better PD’s.
As to what I said, you really shouldn’t misrepresent it when I can clarify. What I said was “I think she’s overcharging to force a plea, but I’m willing to consider her evidence.” For clarification, this means I think tactically she’s overcharging but I find nothing wrong with this tactic, however, given the nature of the crime and evidence to date available in the media, I’m willing to consider her evidence of malice. She very well might not be overcharging and the 2nd Degree Murder charge is appropriate and a case she can make. This actually plays into a possible plea deal too. If her murder case is that solid, it gives her the upper hand on any plea deal. She can hold out for a maximum manslaughter penalty or simply refuse to take a plea deal at all. A superior tactical position or a superior tactical position? Hmmmm. I’m going to take . . . the superior tactical position. So did she.
Thanks for again demonstrating that you offer tales of sound and fury signifiying nothing, anon.
Jonathan Hughes 1, April 12, 2012 at 12:43 pm
All of us are convicted of death. Why convict anyone of anything.? To convict anyone of anything for a human that dies would be like a human in jail convicting someone that was not in jail. The convicting human ends up convicting their own soul. Be like Jesus, and show mercy. Then his glorious flight will not be hell to you not reducing you to nothing.
==================================================
These concepts arguably evolved in microbes, and in some cases have not improved a great deal in the last 2 or 3 billion years.
There is the law of the jungle, and then there is the law of the bungle.
@Jonathan Hughes: Why convict anyone of anything?
Because we value life, and we believe that punishment works to protect it by discouraging murder.
If you are religious, you apparently believe in the value of punishment as well. Otherwise, the threats of hell or damnation or falling into supernatural disfavor would be meaningless to you; and your words suggest they are not.
It is human nature to believe that threats of violence, curtailed freedom or seized property will deter acts we abhor, that is why we prosecute and convict people that undertake such acts. Zimmerman is one; publicly punishing Zimmerman will make other vigilantes less eager to confront and kill strangers (which could well be you or somebody you love).
Jeralyn Merritt at TalkLeft also thinks he was overcharged to force a plea: http://www.talkleft.com/comments/2012/4/11/181536/291/91#91
If it’s obvious to two lawyers and Gene H that he was overcharged even from the beginning, than it’s hard to have a lot of confidence in the prosecutrix lays out aside from theater.
34 comments, and nobody speculates regarding the contents of the autopsy report? If there’s a “smoking gun” to convict Zimmerman of Murder Two, most likely it’s in that report. That, and any inconsistencies in his statements, compared to the known facts.
Along with the 2nd degree murder charge, the Special Prosecutor has lesser included, meaning they could go down to manslaughter.
anon, nowhere did I suggest adding on “dozens of ancillary charges.” It is common practice to add on a lesser charge or two if the lesser charge is a viable alternative. The jury decides. Where the prosecutor made a big mistake in the Casey Anthony case was to not offer the jury the opportunity to find for something less than murder.
I don’t do hyperbole, and do not appreciate having hyperbole attributed to me.
All of us are convicted of death. Why convict anyone of anything.? To convict anyone of anything for a human that dies would be like a human in jail convicting someone that was not in jail. The convicting human ends up convicting their own soul. Be like Jesus, and show mercy. Then his glorious flight will not be hell to you not reducing you to nothing.
“Is that how it’s done? Overcharge to force a plea? Just another example of a screwed up “justice” system.”
Thank you BettyKath, absolutely 100% correct.
Overcharging to force a plea should be met with disbarment for abuse of the process.
Adding in dozens of duplicative ancilliary charges as OS suggests just to allow the jury, suggest to the jury, to convict on something, anything, is also a bullshit abusive maneuver.
These are tactics designed not to promote justice, but to game the system and to game around double jeopardy.
Ironic that any commenters here that parade themselves as progressive would encourage that sort of prosecutorial bullshit.
Can someone explain though why the first degree murder charge required a grand jury, but not a second degree charge that could still result in life in prison? What is the rationale for that?
It seems obvious to me, based on the girlfriend testimony, that Trayvon had every right to “stand his ground” and attack Zimmerman for confronting him.
The girlfriend on the phone says Trayvon asked Zimmerman “Why are you following me?” To which Zimmerman responded “What are you doing here?”
To me, were I on the jury, that is clearly agression by Zimmerman, and Trayvon had every right to feel threatened. After all, Zimmerman had a gun, which Trayvon probably saw, and I think was within the SYG right to then try and get Zimmerman’s gun away or otherwise render Zimmerman harmless. Logically speaking, the SYG law cannot ONLY apply to guns, it applies to violence in self-defense when threatened, which, IMO, Trayvon clearly was, as evidenced by his final words.
If even Bush says it you have to think Zimmerman was wrong.
Mespo I am not an attorney but it reads to me as if Martin would have also had the right to shoot Zimmerman.
In re malice evidence, what mespo said.
rafflaw:
I think Martin would have a SYG defense is charged but more importantly was Zimmerman engaged in a lawful activity after being told not to confront Martin? Trespass, battery, disorderly conduct, or disobeying an officer, maybe. Jeb Bush and other Florida lawmakers say Zimmerman was the aggressor when he disobeyed the dispatcher and moved to confront Martin and unable to claim benefits of the SYG law.
Mespo,
Can the state claim that any physical actions by Martin were lawful under his rights via the SYG law? If so, wouldn’t that rebut any self defense claims by Zimmerman?
Digita Dave:
The SYG law requires you to be engaged in a lawful activity before invoking the doctrine. In your case the stalker, if committing a crminial offense, is barred. Here’s the Florida provision:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
What Frankly and Mespo said. Mr. Zimmerman is his own worst enemy when it comes to his attempts to paint his actions as total self defense.
The malice issue will likely turn on the enhanced voice recording of Zimmerman as he approached Martin as well as Zimmerman’s credibility and evidence of his propensity for violence. If the jury concludes he said “coons,” I think that evidence of malice will be hard to overcome. The defense will surely rebut with their own experts but jury’s rely on their own ears and if one of the leaders thinks it’s a racial slur, it could be over right there.
Based on what I know, i think it’s manslaughter but that recent photo of the defaced African-American recreation center posted on Zimmerman’s website tends to give credence to the claim of hate crime. His prior record of violence along with his anger management issues could also be front and center in the jury’s mind. The coup de grace could well be the voice identification evidence of someone pleading for his life just before teh fatal shot is fired.
DigitalDave I have wondered that too, Could Martin have claimed stand your ground had he had a gun. He may well (and ultimately rightly so) have felt ‘in imminent danger’ /’felt threatened’ by Zimmerman. That phrase is so potentially ill clarified as to justify anyone killing anyone – but then so too are the concealed carry laws in the wild west that used to be called Florida.
to be more clear – the bugalar shot the guy. ZIt was SYG because he felt his life was threatened.