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.
Tony C.
Listen, bitch. You’ll call me RI or Real Investigator. What kind of low-life piece of crap enters into a conversation by insulting a participant? Is that your pathetic attempt to silence me?
“Clearly, if Trayvon was “running,” and Zimmerman was “following,” then following could be taken as “chasing.” Which means Trayvon was being chased by a man with a gun. That is reason enough for Trayvon to be Trayvon was not approaching Zimmerman, the audio clearly indicates that, he was trying to escape him.”
Who said Martin was running? The record doesn’t indicate that Martin was running. His girlfriend didn’t say he was running.
Did Zimmerman have his gun drawn? Nothing in the record indicates that he did. Then how do you arrive at your absurd conclusion?
and you have the nerve to call me dumb.
Real Investigator:
“The key word there is “if”.”
********************
Nope the key word there is “murder.” Martin cannot be charged with anything since he’s dead there, Javert. If he were alive and been charged with battering our busy-body night watchman then he could invoke the law as he was engaged in a lawful activity. Tragically, our young victim here brought mere fists to Zimmerman’s gun fight.
Real Investigator:
“Really, Mespo? You’re advocating unprovoked violence?
**********************
Nope, I’m advocating that “real investigators” learn to read and not proffer cherry-picked information designed to advocate a position while clinging to a veneer of faux-objectivty.
By he way,thanks for the catalog of comments too. I make no apology for my advocacy of the position aligned with the prosecution. Seems the State of Florida agrees with me in this regard since probable cause to arrest has been established. We’ll see how the trial works out, but until then I suggest you stick to finding out “Where’s Waldo,” capturing Big Foot, or handling the grid search for DB Cooper.
Real investigator? You couldn’t find your way home.
“if in reasonable fear for his safety from a larger armed man who accosted him for no valid reason while he was walking home in the rain,”
The key word there is “if”. There is nothing in the current public record that indicates that Zimmerman accosted Martin. At best, the record indicates that it was Martin who accosted Zimmerman.
I meant to type, “reason enough for Trayvon to be threatened.” The word “threatened” is missing from that last post.
@Real Dumb: Clearly, if Trayvon was “running,” and Zimmerman was “following,” then following could be taken as “chasing.” Which means Trayvon was being chased by a man with a gun. That is reason enough for Trayvon to be Trayvon was not approaching Zimmerman, the audio clearly indicates that, he was trying to escape him.
No matter what Trayvon does to Zimmerman when Zimmerman catches him, Trayvon was justified in doing in self defense by the very Stand Your Ground law Zimmerman is trying to hide behind.
RI,
Oooo. Anecdotal evidence. How precious. And an anecdotal problem that would have been mitigated had the person in question had adequate representation. Which I believe was mentioned. As to the rest of what you say culminating in . . .
“It’s an abuse of the system. It’s political prostitution, and it should be recognized to be unacceptable.”
That’s your opinion and you’re entitled to it. It’s clearly not an abuse of the system though since the pleading in the alternative of lesser chages (such as manslaughter in this case) are permissible under Florida law and incorporated into the standard jury instructions you cited. Just because you don’t like the practice doesn’t mean it’s an abuse. It just means you don’t like it.
However, if you’re so concerned about political prostition, why not address the ALEC sponsored legislation that is in large part fueling this media debacle? Because permissible and tactically valid trial strategy doesn’t sound like prostitution to me, but allowing corporations to draft and promote legislation that creates the kind of confusion and invited disaster like the SYG legislation certainly does sound like prostitution to me. Corporatist fascism too. Corporations shouldn’t be allowed to make the rules. This case is a perfect example of why they shouldn’t.
leejcarroll:
“Mespo I am not an attorney but it reads to me as if Martin would have also had the right to shoot Zimmerman.”
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You may not be a lawyer but you think like one. Martin, if in reasonable fear for his safety from a larger armed man who accosted him for no valid reason while he was walking home in the rain, could have invoked the law if he was charged with a crime against Zimmerman. Sadly he won’t get that chance. But the law could still rear its head as a shield for Trayvon if Zimmerman is deemed the aggressor since Trayvon would be fully justified in fighting back and even smashing Zimmerman’s head into the pavement while in reasonable fear for his safety. That would be a irony of the first order if the jury concludes that, despite the desperate fight, Zimmerman was the aggressor and thus legally culpable for the homicide.
“I take the common definition of ‘following’ to be synonymous with the word ‘approaching'”.
You might also take the common definition of “house” to be synonymous with “steak”, but that would do you much good if you ever leave your land of fantasy.
Why do you have such a problem with using words as they are already defined? “following” is not a synonym for “approaching”;
“If you want to quibble with how fast Zimmerman was following or if the gap between the two was narrowing, so be it.”
Zimmerman said “he’s coming toward me”. I don’t need to “quibble” over anything. Zimmerman identified Martin to be the one coming toward him. If you have evidence to the contrary, provide it. If you have reason to discount Zimmerman’s account, you can provide it too. I’m going off the record. Just because you don’t like the record, doesn’t not grant you the creative license to deviate from it, and then try to sell it as being the record.
“In either case, he was disregarding the dispatcher and proceeding in Martin’s direction”
Again, facts not contained in the record. You’re making it up.
From the transcript:
911 dispatcher:
OK.
We don’t need you to do that. [2:26]
Zimmerman:
OK. [2:28]
The transcript indicates that Zimmerman said “OK” after the operator told hem they didn’t need him to follow. Do you have any evidence to support that Zimmerman did continue to follow? (not that it would be relevant, other than to show that you are basing your conclusion on nothing more than what you made up in your head))
“at least at the point Zimmerman uttered the possibly deciding word”
Keep hanging your hat on that. Recent enhanced audio has concluded that he said “fucking cold”.
Why don’t you at least attempt to sell your story with what you can verify right now, instead of what you want to believe took place?
As soon as someone suggested it, you determined that chuga chuk sounded like “fucking coons”. You’re hanging you hat on that because you need to make this about race. You don’t care that nothing else points to racism.
Here’s some of your first comments on this case:
March 17th: “I bet some of Zimmerman’s “best friends are black.”
March 19th: “Under the circumstances and If I’m the kid, I’m hitting the guy too and trying to get out of there.”
Really, Mespo? You’re advocating unprovoked violence?
You made up your mind without examining the available evidence. You don’t need evidence. You’re “Mespo”.
Mespo,
You are right that the “something” could be important!
Blouise,
good luck with the appliance problems!
Blouise:
You deserve the break today. Go out to dinner and stop by the dry cleaner!
“Well, Paul Drake,”
Ok, that was good … I’m still smiling and considering that both my dishwasher and my washing machine just broke … the smile is really appreciated.
Real Investigator:
“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.”
***************************
Well, Paul Drake, to answer your easily investigatable question, here’s the part of the transcript you apparently didn’t read:
“Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else.
Zimmerman: Okay. These assholes they always get away. When you come to the clubhouse you come straight in and make a left. Actually you would go past the clubhouse.
Dispatcher: So it’s on the lefthand side from the clubhouse?
Zimmerman: No you go in straight through the entrance and then you make a left…uh you go straight in, don’t turn, and make a left. Shit he’s running.
Dispatcher: He’s running? Which way is he running?
Zimmerman: Down towards the other entrance to the neighborhood.
Dispatcher: Which entrance is that that he’s heading towards?
Zimmerman: The back entrance…fucking [unintelligible]
Dispatcher: Are you following him?
Zimmerman: Yeah
Dispatcher: Ok, we don’t need you to do that.
Zimmerman: Ok
I take the common definition of “following” to be synonymous with the word “approaching” since both relate to closing or maintaining a distance. If you want to quibble with how fast Zimmerman was following or if the gap between the two was narrowing, so be it. In either case, he was disregarding the dispatcher and proceeding in Martin’s direction while Martin was not proceeding in his — at least at the point Zimmerman uttered the possibly deciding word. Zimmerman was clearly frustrated from his discernible comments and entering into harm’s way fully armed and with the intention to follow or apprehend a citizen engaged in a lawful activity.
The unintelligible word is what we need to enhance. He said “fuckin'” something. That “something” could decide the case.
It is apparent that some here (including those who claim familiarity with the legal profession or are active in the trial process) don’t know why the lesser charges are included, nor what standard is used.
In most jurisdictions they have what are known as “jury instructions”. As part of due process, the instructions given to members of the jury are required to be uniform.
In Florida these instructions are known as “FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES”. They are available via the Florida Supreme Court’s website.
http://www.floridasupremecourt.org/jury_instructions/chapters/entireversion/onlinejurryinstructions.pdf
The instructions for Second Degree Murder are on page 122.
Gene H.
“Over charging is a valid tactic that forces people with weak cases to plea to what they actually did, saving time and money.”
It is also the tactic of an overzealous prosecutor to appease the public. I have seen overcharging take place on numerous occasions when there was no chance of a conviction on that charge. The prosecutor lets the person sit in jail for a period of time and then offers a plea deal that would result in immediate release. Though the defendant committed no crime, the prosecutor gets his conviction (which helps come election time), and the defendant gets his get out of jail card. -It’s an abuse of the system. It’s political prostitution, and it should be recognized to be unacceptable.
Zari,
It would help if you knew that the booking photo was from 2005. (not Feb 26th of 2102 as you suggest.) Is your confusion due to your advanced age? 🙂
If you think someone is going to shoot you, do you really care if it is in the front or the back? I have yet to hear the report of someone screaming for help because a gun is pointed at them. Further, the person holding the gun is not likely to just stand there while you’re screaming for help.
Sorry! That would be PHOTO, not “photoe” (as in “potatoe”)!
@RealInvestigator: “If someone has a gun pointed at you, would most people stand there screaming for help, …”
Yes, I would, in order to call as much attention to myself and the situation in the hope that someone would call the police. I would not consider running away (esp. now at my advanced age), believing in the real possibility that the gunman would shoot me, and in the back.
Notice the big difference between this recent photo of Zimmermann shown here, and the booking photoe taken 26 February, the night Zimmermann shot Trayvon:
http://www.trutv.com/library/crime/photogallery/trayvon-martin-the-case-in-photos.html?curPhoto=8
Zimmermann has lost substantial weight in the past 6 weeks. To my eye, it looks like he is trying to be much less “substantial” than Trayvon in order to support his claim of self-defense-because-he-was-so-afraid-for-his-own-life.