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.
Thanks for explaining that, mespo. When the cops think they OUGHT to be the judge, jury and executioner they need to be struck down with all impunity.
Am waiting for the grand jury on Kenneth Chamberlain Sr.:http://www.democracynow.org/2012/3/29/killed_at_home_white_plains_ny
A Marine gunned down in his home by the cops who were responding to a MEDICAL emergency. Now, if this is the sort of discretion the police would like to have, I say absolutely NO. They killed a sick old man for no reason and all of the policemen involved
should be IN JAIL.
Darren Smith:
“Finally, as Law Enforcement Officers go, I disagree that our only duty is to bring the defendant before the court as it might seem through inference blindly. We are provided with some wide discretion in many areas as to how to proceed in incidents. We do take an oath in addition to upholding the laws of our jurisdiction, but we also take one to do so with our state and federal constitutions which often does include the defendant’s rigths as well.”
*******************
Of course, you, as a LEO, have some discretion in the charging decision but it is neither final nor unfettered as this case has shown time and time again. I’m sure you make as prudent as decision as you can at the scene or maybe even after some reflection with your colleagues and superiors but the decision to charge ultimately has to be given to a constitutional officer who answers to the people and not a public servant who answers to his superior. That is the nature of a democracy and contrasts it from a bureaucracy.
That said, the complaining officer should have no discretion in the nature of the final charge or the probable cause thereof as those decisions are the job of the prosecutor to proffer and the judge to decide. Then once the charges are tested a jury may decide if the factual elements of the charge are present such that a conviction is appropriate. Any other solution renders the LEO with too much discretion in the process and provides a too tempting opportunity for abuse. The nature of our criminal justice system, like our governing system, is a separation of powers and checks and balances.
“Finally, as Law Enforcement Officers go, I disagree that our only duty is to bring the defendant before the court as it might seem through inference blindly. We are provided with some wide discretion in many areas as to how to proceed in incidents. We do take an oath in addition to upholding the laws of our jurisdiction, but we also take one to do so with our state and federal constitutions which often does include the defendant’s rigths as well.”
Interesting comment considering the only ‘discretion’ I have seen the police use these days is lack of basic common sense, lack of any respect for the American public, and taking the lazy way out of all encounters (by unnecessary force, ridiculous use of the Taser and pepper spray, etc. et al). I have had an encounter with police that made no sense whatsoever, the Occupy Movement is proving every single day that the police in America have freaking lost their damn minds on power and control issues- so much so that the new rally cry is “WHO do you serve and WHO do you protect”.
Sorry you might be a stellar officer, but the stupid, cruel and outright dumb actions of your fellow officers paints all of you with a broad brush. Clean up your act if you want to have any honor or respect in the justice system. And advise your comrades in the force to do so. We hard working civilians are sick and tired of the thick blue line being used to wreck our civil liberties even to the point of criminal actions on the part of the police departments all over the nation.
Because face it, if George Z. had not been the son of a judge, or if he had been black, he would have been charged a month ago with a crime.
Oy. How in the world can this be an overcharge? To prove second degree murder the prosecutor needs to prove that Zimmerman deliberately shot Martin, resulting in his death. That’s it. There need be no intent to kill. Once your intent is to put a bullet into another human being you have the intent necessary to prove an “act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual,” and if the shooting isn’t justified it is, in fact “unlawful.” It is crystal clear that Second Degree murder is an appropriate charge in this case, and once justification is determined not to exist it’s an easy case to make. Zimmerman admits shooting Martin and no one contests that that shooting caused Martin’s death. The failure to charge Second degree murder, unless the prosecutor believed there was justification, would be legal malpractice and a disbarrable offense.
I’m pretty sure that everyone arguing that a second degree murder charge is an overcharge is either a liar or has not even bothered to read the Florida homicide statute.
anon nurse: Zimdecision 2012: ‘The Daily Show’ Mocks George Zimmerman’s Media Coverage (VIDEO)
it has begun, from Yahoo news
George Zimmerman buys $79.84 worth of items from jail store
Thank you Dred for the clarification on Florida’s procedural differences. This is certainly different from the state I reside in and it was an interesting read. In Washington State a defendant who has been found not guilty may request the jury decide if the action was a self defense. If the jury decides the action was in fact a self defense the state is required to pay the defendant’s legal fees and costs. This is a factor that can weigh on a prosecutor’s decision to charge a person if threre is a possibility of a self defense claim due to the notion of having to pay these fees, especially if it involves a near capital offense.
I brought my views on to the forum on the PC statement, to address another posting’s comments, because at least in our state defective charging documents can cause the loss of otherwise solid cases. Here, we have what is referred to a Knapstad Motion. ( State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). ) which essentially means the defendant can seek dismissal of charges because the state has failed to bring a prima facie case against the defendant. Essentially the specific statutory elements, such as intent, permanently deprive, etc, were not presented by the prosecution and the judge should dismiss the action; somewhat akin to a summary judgement in the federal system.
At least in our state due to these it is important to make PC statements or charging documents tight as to meet the statutory elements. I
Regarding the issue posted previously about the demonization of Mr. Zimmerman it is known that he has received death threats publicly by some caught up in the emotion of the issue.
Finally, as Law Enforcement Officers go, I disagree that our only duty is to bring the defendant before the court as it might seem through inference blindly. We are provided with some wide discretion in many areas as to how to proceed in incidents. We do take an oath in addition to upholding the laws of our jurisdiction, but we also take one to do so with our state and federal constitutions which often does include the defendant’s rigths as well.
“The Horn case out of Texas is such an example where, as with Zimmerman, Joe Horn ignored instructions not to confront the suspects. ”
And while stand your ground laws can be abused, this is the problem I have with claiming that normal self-defense laws already have this taken care of.
By the book, under non-stand-your-ground laws, if you – lawfully – go out and confront someone that you think is committing a crime and they jump you, and you end up needing to shoot them to protect the whole life-and-limb bit, then that is a legitimate shoot. You don’t lose that right to self defense simply because you went out there. The duty to retreat is the duty to retreat at the time they are presenting a threat, if you can do so in reasonable safety. You ARE NOT lawfully required to refrain from confronting them before that absent an order from an actual peace officer who is present (not a dispatcher), and if they jump you and you *then* cannot retreat, you may use force.
The duty to retreat comes into play AFTER the threat or action is presented, not before. This doesn’t mean that you can’t do something that will result in your being found responsible for provoking their threat or attack – but simply “entering” or “not leaving” a public or private area you have a right to be in will not result in that.
That should be why stand your ground laws are not needed – but people keep getting charged anyways because there is always some busybody in the back telling everyone they should just sit inside and wait for someone else to come take care of it. You don’t get to make that call for Horn.
There are a lot of people who don’t want the law (or the authorities, interpreting it) to force them to cower inside while criminals cart off their or their neighbors’ property.
Note that there is a vast difference between not wanting forced inaction and approving of people simply running around shooting criminals – people aren’t asking for a license to harm people, they simply want to be able to defend their property without fear that they’ll be prosecuted for wanting to do something about it.
When I see people out taking my stuff, I don’t have the right to simply walk out there and harm them or threaten them, but I certainly have the right to walk out there and tell them to knock it off. If you want to handle it differently, knock yourself out, but don’t tell me I have to sit on my hands, because I don’t.
http://www.wtsp.com/news/article/250607/19/Judge-may-recuse-herself-from-Zimmerman-case “Judge Jessica Recksiedler may recuse herself from George Zimmerman case”
Zimdecision 2012: ‘The Daily Show’ Mocks George Zimmerman’s Media Coverage (VIDEO)
http://www.huffingtonpost.com/2012/04/13/zimdecision-2012-daily-show-mocks-zimmerman-media-coverage_n_1423044.html
If everything that was on the police report (Zimmerman’s account and an alledged eyewitness to the incident) is proven to or decided to be true in court, then he should NOT have to plea down to manslaughter. He should walk.
As we know, especially when it comes to race at trial , things can go ethically wrong. The OJ Simpson case is a good example of that.
I expect it to plea down to involuntary manslaughter…..
Darren Smith:
“One would think that a little more evidence would be offered than this, especially in a case involving such serious a felony against a defendant who has been so demonized in the public arena with those who genuinely in their minds feel a miscarriage of justice has happened.”
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Demonized? One wonders why you criticize the public for complaining that an armed man who confronts and then kills and unarmed child is not then arrested and called to account for his actions. Not hung on the rack, not put in the public stocks, merely called to explain his actions to his peers and accept their judgment as to their propriety.
There is more than enough evidence of depraved mind in the PC affidavit and you yourself disclosed as much in your statutory recitation at subsections (h) and (o). The Judge properly agreed especially in view of the profiling allegation. I suspect the word was not used lightly.
I heard a judge say once in response to a very respectful question by a law enforcement officer such as yourself that it was the officer’s role to bring the defendant to court and the judge’s role to scrutinize his conduct with the microscope of the law. Not the other way around.
Darren Smith 1, April 13, 2012 at 5:33 am
Thank goodness we have juries rather than paper to decide these matters.
==============================
The case I cited up-thread, Brown v. State, 206 So.2d 377 (Fla. 1968), goes into great detail to explain why, in Florida, “lesser included offenses”, including “degree”, “attempts”, “necessary included” offenses, and offenses which also “may be included”, whether charged or not in ink, depend on the allegations / proofs, and on the jury.
In this case there is an added element, the affirmative defense of “self-defense”, complicated by Florida’s “stand your ground” law.
It is probably better to grasp it procedurally, rather than on the full-blown factual elements pulling and tugging on comprehension.
The admission of the killing simplifies matters, setting up a prima facia scenario leaning toward a charge / arrest. This is why the lead homicide detective on the case requested a search warrant.
The claim of self-defense throws a curve, requiring another view of the evidence. That secondary inquiry was handled by a prosecutor who saw it one way.
Following that prosecutors recusal, another prosecutor, upon a deeper review of the evidence, came to a different conclusion: the self-defense claim was not sufficient to decide the case at that point in the process.
So we have a murder charge, which in Florida, tends to include anything lesser that the evidence and jury verdict would come up with.
The out-of-the-ordinary, from the perspective of non-Florida criminal procedure, is the upcoming hearing before a judge, to determine if a jury trial is required following the criminal defense’s presentation of their self defense case.
If a judge dismisses the charges based upon the self-defense case presented, the state can appeal, and the feds can still bring federal charges.
So this has a long ways to go.
@TalkingDog: I suppose the girl on the phone will testify as to what she heard– objection hearsay.
You apparently do not understand the term “hearsay.” The girl on the phone can testify, under oath, to what she personally heard on the phone, which includes everything Trayvon told her, and the exchange between Trayvon and Zimmerman, and her sense that what ensued sounded like a struggle to her. That was her personal experience and the jury can hear it.
“Hearsay” means she cannot testify that anybody was actually following Trayvon, because that is just something that he told her, not something she personally experienced.
As an example, if a man tells his wife on the phone he is at the office, she can testify she heard him say that on the phone (her personal experience), but her testimony is not proof he was at the office, he could have been lying to curry favor with her or conceal something from her.
The girlfriend can personally attest to what she heard transpire on the phone, and to her state of mind at the time. That is not hearsay, that is called ear-witness testimony. The law does not treat that as qualitatively any more suspect than eye-witness testimony; other than obvious physical differences between hearing and seeing.
I have seen a man convicted of murder (and sentenced to life) based partly on the ear witness testimony of a neighbor in an apartment that overheard the fight that ended in a spousal murder.
Being a speck of dust in the wind, and late in this thread, I have reviewed the PC affidavit linked in this forum and based on my opinion I am surprised the judge signed off on it.
I reviewed Florida’s Murder Statute (782.04) and I would have expected more coverage of the elements of the crime.
The Second Degree Murder Statute has an element which reads (in pertinent part):(2) unlawful killing of a human being, when perpetrated by any act imminently dangerous to another AND (emphasis added) evincing a depraved mind regardless of human life
I question where in the PC Affidavit the state has established the defendant has a “Depraved Mind” and since it seems according to the statute “Killing” AND “Depraved Mind” together must be satisfied I don’t see it here.
Thus lends us to look at section (3) which describes some of the criminal acts that in conjunction with the killing establish additional possible elements. sorry for the length due to enumeration, but you might see my point:
(3)When a person is killed in the perpetration of, or in the attempt to perpetrate, any:
(a)Trafficking offense prohibited by s. 893.135(1),
(b)Arson,
(c)Sexual battery,
(d)Robbery,
(e)Burglary,
(f)Kidnapping,
(g)Escape,
(h)Aggravated child abuse,
(i)Aggravated abuse of an elderly person or disabled adult,
(j)Aircraft piracy,
(k)Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l)Carjacking,
(m)Home-invasion robbery,
(n)Aggravated stalking,
(o)Murder of another human being,
(p)Resisting an officer with violence to his or her person, or
(q)Felony that is an act of terrorism or is in furtherance of an act of terrorism,
by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree,
And in the above enumerations there isn’t an allegation of any of these, perhaps the stalking but the affidavit itself indicates the defendant was acting to what he believes to be preventing a person involved in crime from eluding the police.
But in cutting through the fog, I see only one short paragraph that would lend credence to the murder complaint:
” Zimmerman confronted Martin and a struggle ensued. Witnesses heard people arguing and what sounded like a struggle. During this time period witnesses heard numerous calls for help and some of these were recorded in 911 calls to police. Trayvon Martin’s mother has reviewed the 911 calls and identified the voice callign for help as Trayvon Martin’s Voice.”
Again, where is the PC that the defendant had committed murder? He confronted him, Okay, but what evidence is presented that Zimmerman intended to unlawfully kill Trayvon, in at least this affidavit it does not indicate what the context of the fight was other than in the next paragraph that Zimmerman shot him. Very lacking in my view. There is the mention of the cries for Help but when did this happen and why? I’ve personally arrested many people who suddenly cry out Help or scream and this did not invalidate the arrest or was indicative the arrestee was being assaulted. This is a somewhat difficult pill to swallow but the killing of another person is not always unlawful and it is up to the state to show in charging someone that it is, and in my view the document does not establish it.
Furthermore, much mention is made of the defendant’s “mistaken or false” belief Martin was involved in a crime, it would seem to me that rather than making a weak attempt to paint the element of a Depraved Mind it is actually assisting the defense in the case.
It would probably also be a good measure to refrain from such inflammatory language as “Profiling” where “saw” could have been just as descriptive and not so prejudicial.
I’m not making any judgement as to the guilt or non-guilt of those involved, obviously that is for the jury, I do take exception to this lacking PC Affidavit and thus the reason for my post. One would think that a little more evidence would be offered than this, especially in a case involving such serious a felony against a defendant who has been so demonized in the public arena with those who genuinely in their minds feel a miscarriage of justice has happened. At least it would lend a better appearance of legitimacy, especially when the investigation is instigated from a governor’s executive order, a non-law enforcement political officer, where the king’s men tend to follow the king’s orders.
I feel bad for what happened to Trayvon and everyone would have been better off if Zimmerman would have chosen to just hang back but when the dust had settled could just a little more effort and due process be spent to charge a man with second degree murder? One and a half pages: Were Writs of Assistance as short? Would we like to be held to second degree murder charges on the efforts required of a page and a half?
I suppose my criticisms could, not as if it mattered, be addressed by an addition of a few more lines and better editing. Thank goodness we have juries rather than paper to decide these matters.
I agree with the departed “sleuth” in only one aspect of his comments. Overcharging has been used repeatedly of late to raise bail, have underfunded defendants languish in prison and force them into plea deals and/or informing. In this case, however, I don’t think it was overcharging. There seems to be a reasonable possibility that this was second degree murder, but if the current “facts” hold true I think it will be some version of manslaughter. However, let’s wait for the trial and see what the evidence discloses.
Mespo:
this is actually a pretty hard case. It is the perfect storm for Zimmerman. It is too bad the press muddied these waters. It will be hard for the process to produce an untainted outcome either way. I think the justice and the mercy will be in sentencing. The verdict of the jury is going to be suspect either way. At least in my opinion.
Bron:
“Who can argue with Victor Hugo?”
*********************
Adèle Foucher 😀
Mespo:
Who can argue with Victor Hugo?
Bron:
Ol’ RI has been spouting about his capabilities as a seer of facts and investigative genius. I just threw up a few fictional detectives to tweak him.
As for Javert getting his man he certainly did but it wasn’t Valjean:
Javert: Reform is a discarded fantasy.
Javert: What did you say? Speak up, people don’t mumble when they speak to me.
Javert: It’s a pity the law doesn’t allow me to be merciful.
Javert: I’ve tried to live my life without breaking a single rule…
[takes Valjean’s shackles off, pushes him to the ground and puts them on himself]
Javert: You’re free.
It was Javert himself that Javert saved from being unleashing on humanity.
I love that book. What a race down the center line between justice and mercy!