So anyone who is not under a rock knows that Zimmerman is now in custody and charged with Murder 2 in the case of the killing of Trayvon Martin. What I'm going to do here is lay out my non-expert thinking as to what is likely to go down should this end up in trial and some of the pitfalls that I see in the Murder 2 charge vs. Manslaughter or some other "non-intent" non "frame of mind" charge.
I, like everyone else not in the prosecutors office, only have what has been leaked or given to the media to use to form my positions. There may be evidence that is in the possession of the prosecutor that I am not aware of that will make for a stronger case for murder 2. I offer this piece due to what happened in the Sean Bell case. In that case, I thought that the charges of murder 1 were not provable beyond a reasonable doubt. It took me a while to understand that, but it was certainly the case. The problem with the murder charges against the NYPD officers was that the police are assumed to
not have malicious intent to kill anyone, but rather that anytime they shoot it is to protect themselves or others. When we looked at the testimony we saw that all the statements made by all the police in that incident kept saying how they felt threatened by Sean Bell who was "assaulting them" with his vehicle and "reaching for waistbands" and that they "heard shots".
I wrote then that I thought that the murder charges were a community set up. There was intense pressure to "get justice" and the prosecutor IMHO decided on a show trial with a charge they knew could not be proven, particularly to a judge who, in my opinion, was far more disposed to believing in the "good will" of the police than any jury taken from the local pool would have been. I will say outright that I believe that such a possibility exists here.
Let me first get the following out: Regardless of what was said by the special prosecutor, the only reason that Zimmerman has been taken into custody and charged e is due to the national backlash once the word got out that a coverup was afoot. We know that the DA had decided on the night of the shooting to take Zimmerman at his word over the concerns and recommendation of a professional homicide detective. Had there been no outcry, Zimmerman would be a free man.
I just had to get that off my chest.
So lets' look at Murder 2 under the Florida statutes:
782.04 Murder.—
(1)(a) The unlawful killing of a human being:
1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;
2. When committed by a person engaged 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,
q. Felony that is an act of terrorism or is in furtherance of an act of terrorism; or
3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or methadone by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,
is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.
(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.
(2) The unlawful killing of a human being, when perpetrated by any 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, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.[my emphasis]
Of interest is the portion that states:
perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life
Evincing a "depraved mind". This is the key here. The prosecution is going to have to prove
beyond a reasonable doubt that Zimmerman acted with a "depraved mind". While the defense has
no obligation at all to present
any evidence that Zimmerman was not of depraved mind, they are expected to present evidence and argue against this particular point. Therefore it is important that we understand what a "depraved mind" is in legal terms.
If we look at the
Florida Supreme Court in regards to Jury instructions (2008) we find the following for depraved mind:
1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite, or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.
In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.
Did Zimmerman express "ill will"? "Hatred"? "Spite" or "evil intent" on the night in question? That is going to be the first hurdle.
It is likely that the defense is going to point to three things to refute these items:
1) They are going to point to the recent rash of break-ins in the neighborhood. They are going to say that Zimmerman was motivated not by "hate" or "ill will" but a genuine
concern for the well-being of his community and neighbors. They are going to point to reports that Zimmerman had come to the aid of a break-in victim and offered all manner of help to her.
2) Zimmerman's defense is going to point to the phone calls that Zimmerman made prior to this incident and say that it shows that Zimmerman was concerned and being
vigilant. And if ANY of the persons he called about are non-black, they will highlight that to deflect the racial angle.
3) Zimmerman's defense is going to point to the actual 911 call and argue that Zimmerman was again concerned for the safety of the neighborhood when he saw Trayvon who may have "fit a description" of those who previously burglarized homeowners.
They will argue that in prior break ins, the perpetrators had brandished or acted as if they had weapons so Zimmerman was
reasonable to believe that when Trayvon was "eyeballing Zimmerman" as he "walked towards him" with his hands in his pocket that Trayvon was armed (just like the other burglars) and therefore Zimmerman felt that he had the right, under Florida law to stop a felony he
reasonably thought was in progress.
The Defense will likely argue that when Trayvon ran he was exhibiting the same behavior as the other burglars that had
terrorized the community (and I fully expect the use of the word "terrorized" to be used) and that behavior added to Zimmerman's
reasonable thought that Trayvon was in fact a criminal caught in the act of committing a felony.
This point is how they are likely going to attempt to explain Zimmerman's exit from the "safety" of his vehicle. He, based on recent events had reason to believe that a crime was occurring (because Zimmerman noted so called "erratic" behavior displayed by Trayvon). This is important because not only does Florida law provide for citizens to stop a felony from occurring, but they also do not have to wait until harm is done to interfere. Think of it like this: If you see a man on the street following a woman and he's acting "oddly" and you go over to him and ask him why he's following that woman, you have not committed a crime. If that man yells at you and then throws a punch at you, you can, in fact, claim self-defense and defense of others.
The Coon CommentWhat could sink this defense is the "fucking coon" comment. The 911 tapes clearly has Zimmerman stating that "they" always get away. Then under his breath he says something that many, including the author, believe to be "fucking coon". I am not clear as to whether there will be an audio forensics (if that is the proper term) expert on the stand to testify as to what was actually said on the audio. At the very least, the audio strongly suggests either "goon" or "coon". We know that linguistically it is pretty easy to confuse a G and a C. The mouth formation necessary to make either sound is very similar. I fully expect the defense to lean
heavily on the "goon" interpretation arguing that goon and 'thug' and "criminal" are easily associated words. I'm not sure of the mindset of the prosecution but if they are anywhere close to my mindset they will lean heavily on the "coon" interpretation. Such an interpretation, if believed by the jury would be in my opinion enough to meet a "hate", evil or "spiteful" burden.
The Point Of ContactAfter dealing with why Zimmerman left his vehicle with his alleged
reasonable suspicion the argument will move to the point of contact. This is the muddiest part of the waters. First and foremost because the victim is dead and therefore cannot speak on his own behalf. Secondly there is, as far as I know, only one person, who witnessed any of the actual conflict. His commentary to the
media indicates that Trayvon was on top:
"The guy on the bottom who had a red sweater on was yelling to me: 'help, help…and I told him to stop and I was calling 911," he said.
Trayvon Martin was in a hoodie; Zimmerman was in red.
The witness only wanted to be identified as "John," and didn't not want to be shown on camera.
Everyone else, as far as I can tell from the media reports, only heard the yelling and the gunshot. None of them actually took a look out of their windows or doors. Therefore at best, their calls can only serve as a means of creating or confirming a timeline of events. If this "John' is called to testify and repeats this story, the defense will say that this shows that Zimmerman was under attack and shot Trayvon to protect his life. They will no doubt show the enhanced video footage showing the blood on the back of Zimmerman's head and on his nose to show that it was a "life or death struggle".
This will go to the argument of "indifference to human life" and Zimmerman's "act of defense" may be believed by the jury/judge. Once they "establish" that Zimmerman was acting in defense of his community and a "reasonable" belief that Trayvon presented a danger to it (which is why he left his vehicle), they will add that even if one wanted to believe that Zimmerman should not have left his vehicle, that since he was confronted
after he gave up catching Trayvon, that Zimmerman had a right to defend himself at the point of alleged "aggressive contact" initiated by Trayvon. I call this the "disjoint" argument, where they will attempt to disjoin the leaving the vehicle from the "fight" which they will unlikely describe as a "fight" but rather as an "ambush" or something to that effect (anything to make Zimmerman look to be the victim).
The kink in this argument would be the phone call from Trayvon's girlfriend. Her comments to the media indicate that Zimmerman initiated contact with Trayvon. The defense will certainly grill this young woman. They will say that she did not hear the entire conversation and that when she heard Zimmerman say "what are you doing here?" it was in response to Trayvon's "do you have a problem?" question at point of contact. The defense will likely get the jury/judge to believe that this young woman has a reason to distort the truth (it's her boyfriend, community pressure, etc.) and perhaps even lie. That she could not have possibly heard everything that happened and that any "scuffling" she heard does not prove that Zimmerman
initiated aggressive contact with Trayvon. They will attempt to get her to admit that it is "possible" that the noises she heard were actually the result of Trayvon's actions.
The Closing ArgumentThe defenses closing argument to the jury would probably be something along the lines of: Zimmerman was concerned for his neighborhood after a rash of burglaries that involved African-American males. Zimmerman prior to this had called the police numerous times about suspicious people, but they often got away. On the fateful night Zimmerman happened upon a person who was acting in a suspicious manner, much like criminals usually do. Zimmerman called the police. Trayvon ran away, Zimmerman pursued, putting himself at risk for the protection of his community. He was confronted by Travon after losing sight of him and returning to his vehicle. Trayvon beat on Zimmerman who in self defense, shot Trayvon. It is a tragedy. A Trajedy that would not have happened if Trayvon had not beat on Zimmerman.
Understand that an "unbiased" jury is going to enter deliberations with the idea that Zimmerman is not a "murderer" in the way that we typically associate the word. He certainly will not "look" like a murderer when he is in court. The prosecution will no doubt try to enter into evidence about Zimmerman's past arrests and behavior. The defense will likely counter that while it may show Zimmerman to be zealous it does not make him "depraved".
The above summation is why I think a lesser charge of manslaughter should have been levied against Zimmerman. I think the depraved indifference borden is going to be a high bar to hurdle. As noted before, it is entirely possible that the prosecution has evidence that leads them to believe that they can meet the burden, but allegedly so did the prosecution of the Sean Bell shooting.
