a lot to ask

I feel a little like Michael Corleone in that horrible third Godfather movie. “Just when I thought I was out…they pull me back in.” I keep thinking I’m done writing about Trayvon Martin and George Zimmerman, but then something happens…and they pull me back in. I really didn’t think the special prosecutor, Angela Corey, would charge Zimmerman with a crime. But she did, and here I am again.

I’m here again because a lot of people I know seem to think Zimmerman’s conviction is almost guaranteed. After all, he clearly shot and killed a young, unarmed man who’d done absolutely nothing wrong. Even more egregious, he did that after being informed by a police dispatcher than he shouldn’t follow the soon-to-be victim. And still worse, he was apparently following Trayvon in large part because of what appear to be racist suspicions. How could Zimmerman NOT be convicted?

Here’s what most folks don’t understand: our court system isn’t about justice. It’s about procedure. It’s about rules of evidence and interpretations of law; it’s about a process that deliberately tries to remove as much passion as possible from the consideration of the evidence. And that’s a good thing. It’s a good thing because passion leads folks to make really stupid decisions, and in a courtroom passion almost always works against the accused. Of course, the accused is usually guilty–but on those occasions when the accused is factually innocent, passion is anathema. Down at the bone, what takes place in a criminal court is–and should be–about protecting the innocent. And as I’ve said elsewhere, when he walks into that courtroom George Zimmerman has to be considered an innocent man.

Normally, almost all the advantages in a criminal trial belong to the prosecution. They have more investigative manpower, they have crime labs and technicians, they have more lawyers, they have the entire power and authority of the State on their side. The defense, in most cases, consists only of an overworked lawyer and maybe, if they’re lucky, an investigator.

To counterbalance that inequity of power, the State has the burden of proof in a criminal case. They have to prove beyond a reasonable doubt that the defendant committed all the elements of the crime of which he’s accused. Zimmerman is charged with Murder in the Second Degree, which is 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.”

In this case, the prosecution will have to prove two things that will likely be difficult. First, that the killing was unlawful and second, that Zimmerman had a ‘depraved mind’ at the time of the shooting. Depravity of the mind generally means the crime was committed with ill will, hatred, spite, or an evil intent, even if the crime wasn’t premeditated. My guess is the prosecution will use Zimmerman’s use of the racial epithet ‘coon’ and his comment that ‘these assholes always get away’ combined with his continuing to follow Martin even after being told he shouldn’t as evidence of a depraved mind. It could work–though the defense will surely point out that if Zimmerman had possessed a depraved mind at the time of the crime, he wouldn’t have called the police to report what he thought was a suspicious person.

It’s that first element–that the shooting was unlawful–that will be most difficult for the prosecutor to prove. Unless there’s some evidence or a witness to counter Zimmerman’s claim that he was in fear for his life at the time of the shooting, the case could collapse before it goes to trial. It’s possible, though unlikely, the case could be dismissed during a pre-trial hearing on the ‘stand your ground’ law.

My guess is the prosecutor will argue that the justification defense doesn’t apply because Zimmerman provoked Martin. In Florida law, provocation trumps justification–with a couple of exceptions, one of which is if the “force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.”

In other words, if Zimmerman provoked Trayvon into assaulting him (by, say, following him around in the dark with a handgun) then Zimmerman can’t rely on the ‘stand your ground’ law…unless the level of violence that resulted from the provocation was enough to put Zimmerman in fear of his life. And if both Trayvon and Zimmerman believed they were in fear of their lives, then the law still protects Zimmerman. In the absence of eyewitnesses to the actual confrontation between the two, anything is going to be difficult to prove beyond a reasonable doubt.

I suspect the prosecution brought the Murder in the Second Degree charge against Zimmerman in the hope that the judge will allow the jury to consider what’s called a “lesser included offense.” That’s a lesser crime whose elements are also encompassed by the larger crime. In this case, the jury might not be willing to find Zimmerman guilty of Second Degree Murder, but might find him guilty of the lesser crime of Manslaughter, which doesn’t require the ‘depraved mind’ element.

If this case goes to trial and the trial goes to the jury, it will revolve around the willingness of the jurors to decide what George Zimmerman was thinking and feeling at the moment the shooting took place. That’s a lot to ask of a jury.

But the killing of a young man who’d done nothing wrong gives the prosecutor the right to ask it.

Update: The prosecutor has released the affidavit of probable cause in the Zimmerman case. In it she states Zimmerman “profiled” Trayvon Martin, which sounds pretty accurate. She also says the police dispatcher “instructed Zimmerman not to” follow Martin, which is a little less than accurate. Most importantly, she says “Zimmerman confronted Martin,” which is something we’ve suspected but never had any evidence to support it. However, she also says “Witnesses heard people arguing and what sounded like a struggle,” which suggests there are no eyewitnesses to the confrontation. That’s pretty critical. Nor did she refer to any racial epithet, which seems an odd omission.

3 thoughts on “a lot to ask

  1. Thanks for explaining, Greg. I find it very helpful, actually. I have very little faith in the judicial system these days after serving as a juror for three months on a discrimination case. The manipulations that both the prosecution and the defense went through as well as the general intelligence level of the jurors selected left me more than a little cynical about how such circuses are conducted.


    • Oddly enough, I have a lot of faith in the judicial system–or at least in the design of the judicial system. I like the fact that the design recognizes that in an adversarial system like ours, the weaker party–the defense–should get a bit of parity through the rules. I dislike the way the design gets warped, but the design itself is very sound. In my opinin, anyway.


      • I agree that the system itself tries to be fair and enable justice, but watching the way the parties involved tried their damndest to warp the system left me sick. It’s amazing when the system is allowed to work the way it was intended.


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