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. 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.

    excuse me, if I do not read the rest of your comment.

    Zimmerman’s 911 call tells us that he spots the “real suspicious guy”, while entering the gated community through the “front entrance”. So it is clear that at that point he cannot have stolen anything.

    Dispatcher: He’s running? Which way is he running?

    Zimmerman: Down towards the other entance of the neighborhood.

    Dispatcher. Which entrance is he heading towards?

    Zimmerman: The back entrance. Fucking coons.

    Dispatcher: Are you following him?

    So it is not planning to “prevent a crime”, but is clearly not trying to prevent a crime in the community but is trying to prevent an assumed criminal from getting away. See map. What he cannot know is that the house of Brandy Green, Trayvon father’s girlfriend, lies exactly in that direction.

    If he only wanted to prevent a crime, report it to the police, and get the “criminal” arrested, he knows they are on the way, he could have watched the “criminal entering a house” from further off. But he is already assuming this guy wants to get away. Just as he is 100% sure he is both a criminal and trying to get away from him.

    Thus

    (n)Aggravated stalking,
    resulting in:
    (o)Murder of another human being,

    seems to pretty closely fit the situation.

    I, by the way, belong to the people that clearly heard fucking coons, after listening to the tape several times carefully to get a feeling for the situation. I have a very favorable impression of the man answering the 911 call, I think he tries to hold him back with more than just the sentence: We don’t need you to do this. He also reacts interestingly to: Now he is coming to check me out. Look at the place, Zimmerman reports he initially encounters the “suspect”. It’s the front entrance, Trayvon Martin has no other chance but to walk towards him, if he wants to go home.

    I do not rule out anything, by the way, apart from this basic assessment of the situation. I could even imagine that Martin indeed assaulted him, and made things worse. But what would you do if someone follows you onto a dark pathway? Trayvon clearly had no chance to understand what this man wanted from him. And considering the result, Zimmerman doesn’t seem to have tried to tell him either, after all he already knew: this guy is up to no good.

  2. MTinMO – sorry but you have NO credibility at all here. You make statements and present yourself as if you have some type of credential of authority as if we should accept it all as facts. People with commonsense wouldnt accept anything you just said.
    On the other hand the contributor “Real Investigator” posts nothing but COMMONSENSE.

  3. This entire situation is a tragedy, but I have felt all along that Zimmerman should be charged. First, as the person who organized the Neighborhood Watch (NW), we know Zimmerman knew that NW regulations forbids patrolling, forbids carrying a weapon and forbids confronting anyone. In order to get those NW signs around your neighborhood, you agree to the regulations/restrictions. You are also told if you do anything outside those regulations you can be held criminally responsible. So Zimmerman was completely in the wrong as far as NW is concerned.

    Second is that Zimmerman created fear in Martin because Martin was being pursued by an unknown stranger and Martin had no way of knowing if Zimmerman had bad intent. (Cell phone records prove Martin was on phone with his girlfriend and she can testify to the fear Martin shared with her.) Martin was committing no crime- just walking through the neighborhood. Due to the profiling Zimmerman obviously was doing, he was pursuing an innocent person and created fear in that person. So even if Martin did “attack” Zimmerman- Martin had a right to self defense against an unknown pursuer. Since Zimmerman created the situation and the original fear, he should not get to claim self defense after killing Martin. While Zimmerman may have had a concealed carry permit, he was armed in violation of the agreement the neighborhood had with NW in order to have those NW signs placed in the area. Had Zimmerman stayed in his vehicle and just called police, Martin would more than likely be alive today. As it is, a teen who was doing no wrong is dead and now Zimmerman wants a free pass for killing someone who was committing no crime and did nothing to create fear in Zimmerman until after Zimmerman created the original fear. I don’t see how the prosecutor could not charge Zimmerman. I can’t be sure about the degree of the charge, but I certainly believe it is the right thing to do. Zimmerman should have been charged in the first place and not allowed to be free for 1 1/2 months. I can understand why the parents were angry that a grown man had killed their son and was not going to pay for it. Had they arrested and charged Zimmerman in the first place, all the protests and anger would have never occurred.

  4. Gene,
    I agree that it is a reach, but the judge might want an out. Who the hell would want to preside on this circus?

  5. Trayvon Martin Case: Zimmerman Asks For New Judge After Conflict Revealed

    “SANFORD, Florida — The neighborhood watch volunteer charged with killing an unarmed black teenager in Florida asked a judge in the case to step down Monday after she revealed a potential conflict of interest.

    George Zimmerman’s attorney, Mark O’Mara, filed the request and said Circuit Judge Jessica Recksiedler revealed the potential conflict last week.

    Zimmerman was charged last week with second-degree murder in Trayvon Martin’s Feb. 26 death. The lack of an arrest in the shooting inspired weeks of protests nationwide.

    Zimmerman is pleading not guilty, saying it was self-defense.

    Recksiedler’s potential conflict involves her husband, who works with attorney Mark NeJame. Zimmerman’s family first approached NeJame about representing Zimmerman. He declined and referred them to O’Mara.”

    Since NeJame declined the case and only works with Recksiedler’s husband, I’m not sure how this is would be considered a conflict. Seems like a bit of a reach.

  6. Intriguingly, California has had Stand-Your-Ground for over a hundred years and most states had them until 30-40 years ago

    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/04/15/BA2J1O3418.DTL

    The stand-your-ground doctrine, which has vaulted into national prominence with the killing of Florida teenager Trayvon Martin, isn’t limited to the two dozen states that have passed laws since 2005 expanding the right to use deadly force in confrontations.

    It’s also the rule in California, by court decree. For more than a century, the state’s judges have declared that a person who reasonably believes he or she faces serious injury or death from an assailant does not have to back off – inside or outside the home – and instead can use whatever force is needed to eliminate the danger.

    The California Legislature has never enacted one of the National Rifle Association-sponsored laws, pioneered by Florida in 2005, that spell out the rights of a defendant in such confrontations and the procedures for applying them in court. But in California, the judicial rulings had much the same effect. The rulings are binding on state courts and are reflected in judges’ instructions to juries in cases involving claims of self-defense.

    The instructions say a person under attack is even entitled, “if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.”

    Most states had similar rules until 30 or 40 years ago, when some passed laws barring a claim of self-defense outside the home if the person could have fled safely, said Andrea Roth, a UC Berkeley law professor. She said almost all states still allow the use of deadly force against home intruders.

  7. http://www.mediaite.com/tv/harvard-prof-alan-dershowitz-zimmerman-arrest-affidavit-irresponsible-and-unethical/

    Harvard University law professor Alan Dershowitz appeared on MSNBC’s Hardball where fill-in host Michel Smerconish asked him his opinions of the arrest warrant issued and carried out for alleged Trayvon Martin murderer, George Zimmerman. Dershowitz called the affidavit justifying Zimmerman’s arrest “not only thin, it’s irresponsible.” He went on to criticize the decision to charge Zimmerman for second degree murder by special prosecutor Angela Corey as being politically motivated.

    “You’ve seen the affidavit of probable cause. What do you make of it,” Smerconish asked. “It won’t suffice,” Dershowitz replied without hesitation.

    “Most affidavits of probable cause are very thin. This is so thin that it won’t make it past a judge on a second degree murder charge,” Dershowitz said. “There’s simply nothing in there that would justify second degree murder.”

    Dershowitz said that the elements that would constitute that crime are non-existent in the affidavit. “It’s not only thin, it’s irresponsible,” said Dershowitz.

    Dershowitz went on to strongly criticize Corey’s decision to move forward with the case against Zimmerman. “I think what you have here is an elected public official who made a campaign speech last night for reelection when she gave her presentation and overcharged. This case will not – if the evidence is no stronger than what appears in the probable cause affidavit – this case will result in an acquittal.”

    Smerconish identified the total lack of any mention of the supposed fight that occurred between Martin and Zimmerman prior to Martin being shot. He said he was disappointed that he did not see any mention of that conflict that led to Martin’s murder.

    “But it’s worse than that,” said Dershowitz. “It’s irresponsible and unethical in not including material that favors the defendant.”

    “This affidavit does not even make it to probable cause,” Dershowitz concluded. “everything in the affidavit is completely consistent with a defense of self-defense. Everything.”

    Watch the segment below via MSNBC:

  8. I also agree with Wootsy’s statement- justice ‘serves’ the body of a society…”
    but regardless of wether or not the protesters- the marchers-Sharpton have a valid point or not, it is still MOB MENTALITY. There is a reason that there is the ideology of BLIND JUSTICE created by our Forefathers and Framers of the Constitution.

  9. Woosty: “on the issue of ‘Justice’ being served….”

    Very nicely said.

  10. on the issue of ‘Justice’ being served….

    Justice ‘serves’ the body of a society, hopefully w/greater understanding than the mob but how could it do it’s job if it did not listen to the cries in the street?

  11. Swarthmore mom1, April 14, 2012 at 10:21 am

    Woosty, Charles Blow is a prominent …
    —————————-
    sorry, that was my little self piping up….the linkline struck me as a dble entendre….so if it was serious it could be a tad undermining…

    and funny….no offense to Mr. Blow…

  12. @Sheafferhistorian: That is ridiculous. The prosecutor doesn’t control the judge, and although is involved in jury selection, no more so than the defense, and neither control how the jury finally decides.

    What, precisely, would be inherently unfair if the prosecutor is “folding to public pressure”?

    Justice is not served by keeping a case out of court, that is what would be unfair. Once it is in court, the only things the prosecutor can do that would be unfair to Zimmerman is manufacturing evidence; a crime itself. The main thing a prosecutor can do, which would be unfair to the public, is fail to vigorously prosecute Zimmerman, to throw the case in Zimmerman’s favor.

    Zimmerman is not being unfairly treated by being prosecuted, no matter what the motivation of the prosecution. The public will decide his fate, and my hope is they put him in prison for life. he pointlessly stalked and killed a child that was doing him no harm. I do not know what drove him to play self-appointed cop with a loaded gun, I do not know how he lost the line between his heroic self-fantasy and reality, but in my mind he is clearly a danger to society that should be separated from society.

  13. Woosty, Charles Blow is a prominent african american journalist. The article is positive.

  14. shaefferhistorian:

    “There is no hope for a fair trial as the prosecutor’s office is clearly folding to public pressures.”

    ******************

    That’s about the dumbest comment I’ve ever heard an American history teacher say. Read some Jefferson would you:

    “A judiciary independent of a king or executive alone is a good
    thing; but independence of the will of the nation is a solecism,
    at least in a republican government.”

    –Thomas Jefferson to Thomas Ritchie, 1820.

  15. Swarthmore mom1, April 14, 2012 at 10:06 am
    ———————————
    well, that’s an unfortunate headline…..

    hope it’s not an ill-wind or just a lot of hot air….

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