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Thursday, April 12, 2012

The Selection of Charges in the Zimmerman case

I've been getting a bunch of media inquiries about the Zimmerman case, most of which ask me things far enough outside my expertise that I decline to help (a soft version of the Fallon amicus rule!). But I watched with surprise at the unfolding decision by state attorney Corey to file second degree murder against Zimmerman.  Corey is reputed to be a prosecutor who is both tough and possessing integrity. For all I know, she and her colleagues have all sorts of evidence that hasn't yet been leaked and that would support a murder charge beyond a reasonable doubt.

But if everything we've seen reported is true (and I'll assume this provides a useful summary), and there aren't other missing pieces of evidence, I cannot fathom how a jury would return a guilty verdict for murder. If that's right, what could justify bringing a murder charge? Certainly, the idea of charging high with the hope of inducing a plea could explain bringing a murder charge as a matter of tactics. But it would not be a justified basis for bringing a murder charge. To my mind, it would be repugnant to bring a high charge if the prosecutor herself does not readily believe in it, and if it is not readily provable beyond a reasonable doubt. Some jurisdictions or prosecutors' offices might say: this is complicated stuff, we have an adversary system, let the jury sort it out. That's a cop-out. Prosecutors are not partisans or advocates; they're agents of public justice. I have no special insight into Corey's evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice, and one that happens so frequently that it's become difficult to see in plain sight. 

Anyway, curious if anyone shared my surprise (I don't want to say disappointment b/c it requires evidence of facts that I don't have) at the murder charge?

P.S. I'm having trouble getting Typepad to allow me to comment on my own post, so after the jump, I'll respond to Sam's first comment. Also, I've appended a comment to AF's comment. Last, for now, here's an interesting document that constitutes the probable cause statement by the government. This scenario reveals a story different than the one told in the NYT summary I linked to earlier. So, of course, change the facts, change the analysis...

Sam, I'll issue the same caveats. I'm not a member of the Florida Bar and don't study this stuff as part of my research. 
That said, based on what I've seen, for 2d murder, you have to have evidence showing a depraved mind without regard for human life. I can't yet see a jury, faced with the evidence purported by Zimmerman and the witnesses, etc,  conclude that kind of mens rea brd. 
By contrast, if one thinks Martin was engaged in unlawful battery against Zimmerman, and one thinks that Zimmerman unnecessarily killed him (some form of imperfect self-defense) then the following statute section would probably apply.  
782.11 Unnecessary killing to prevent unlawful act.—Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082.
Moreover,  the culpable negligence for the manslaughter statute you mention is defined in the jury instruction in a most peculiar way (ie, it allows recklessness to be conflated with negligence):  Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others.  Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

One more thing:  Apparently even Martin's mother thinks the shooting was an "accident." She told NBC: "I believe it was an accident. I believe it just got out of control and he couldn't turn the clock back."
Maybe Martin's mom doesn't quite understand the significance of what she's said, but, wow, this case keeps getting more interesting. Can you imagine if Zimmerman had just said, Sorry, your son and I got into words, he was beating me up and I felt I had no choice but to shoot, but I'm sorry for your loss. Do you think this whole thing would have been stopped right there? 

Update: Martin's mother has now clarified her statement to the effect that she still believes Zimmerman did in fact stalk and murder her son in cold blood. 

Posted by Administrators on April 12, 2012 at 01:35 PM in Blogging, Criminal Law, Current Affairs, Dan Markel | Permalink


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One point of interest in the affidavit: the garbled language from the dispatcher tape that media outlets reported as a racial epithet is reported in the affidavit as "punks."

Posted by: David Bernstein | Apr 13, 2012 6:28:29 AM

Here is the arrest affidavit: http://media.trb.com/media/acrobat/2012-04/69353440.pdf

FWIW, Alan Dershowitz had the following reaction on MSNBC: "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." "It's irresponsible and unethical in not including material that favors the defendant."
"This affidavit does not even make it to probable cause." "Everything in the affidavit is completely consistent with a defense of self-defense. Everything." He further accused the prosecutor of overcharging for political reasons.

Posted by: David Bernstein | Apr 13, 2012 6:21:05 AM

Yes, we should let this rest now, if your point is only "if a jury believes Zimmerman, it won't convict him of murder." I think we can all agree on that.

DM: Alice, I think your summation quite misses my point, but yes, we'd benefit by letting this rest now.

Posted by: Alice Ristroph | Apr 12, 2012 10:08:46 PM

Dan, I don't believe that one can slice lunch meats too thinly. That's why I prefer Carnegie to Katz's. But that's a whole other debate.

Posted by: Michael J.Z. Mannheimer | Apr 12, 2012 10:07:28 PM

Dan, I read your post quite carefully. Your caveat was "if everything we've seen reported is true." I reasonably took that to mean "if the claims of the witnesses are being reported accurately" NOT "if the witnesses are telling the truth." If you meant the latter, you should have said it.

Mike, see my comment above to Alice. That clarifies what my qualification was. FWIW, I think you're slicing the baloney too thinly, since I'm just trying to see it as a juror might, taking into account what we've heard from both sides so far.

Posted by: Michael J.Z. Mannheimer | Apr 12, 2012 9:35:08 PM

I'm going to hold your feet to the fire on this one. I agree about not rushing to judgment, but your qualification doesn't justify this statement: "If that's right, what could justify bringing a murder charge?" and the following statements about overcharging.

Of course, if all the facts are true then there likely would be an acquittal. But where there is significant doubt about whether the facts are true (which I think should go to the jury given the refusal to abide by the dispatcher's instruction to stop following), then that might justify the elevated charge. This isn't my area, so I have no idea about depraved heart, etc., but I have to think that most indictments do NOT assume that everything the defendant claims is true.

Posted by: Michael Risch | Apr 12, 2012 9:31:17 PM

To Dan's note on AF's 7:43 comment: Nonsense. Taking "everything we've seen reported as true" is not at all the same as taking "everything Zimmerman says as true." The media reports what Zimmerman says, but obviously can't confirm it. In any case, if you're proceeding from the assumption that everything Zimmerman says is true, then ANY charge would be overcharging. And if you're proceeding from that assumption, there's nothing interesting or remarkable about this case. In pretty much every case, if we believe everything the defendant says, the prosecutor is overcharging.

Actually Alice, since defendants plead guilty in the vast majority of cases, I sure hope we take what they say seriously rather than dismiss it out of hand.

But putting that aside, let me take a second to clarify, and then hopefully sit out of the discussion for a while because I think we're coming close to the limit of the value of our speculation in the absence of knowing more facts. My point was that if you took into account all the evidence summarized in that NYT multimedia thing, which would include the statements and evidence supporting Martin, and the statements and evidence supporting Zimmerman, I think a jury would be hard-pressed to return a murder verdict based on a BRD standard. That's all I'm going to say now. I could imagine how more facts fill things out differently. Perhaps an audiology report will confirm that it was Martin's voice pleading for help, and not Zimmerman. Perhaps the witnesses will all state that Zimmerman was on top of Martin. Perhaps the medical reports will reveal that the gunshot came from above, rather than from below. All that would drastically undermine Zimmerman's account, and if so, be cause for murder. But if Zimmerman's account is vindicated by some of the physical or eyewitness testimony suggested in the NYT thing, a murder verdict will be possible only at the expense of the BRD standard, imho.

Posted by: Alice Ristroph | Apr 12, 2012 9:28:17 PM

I don't under the difficulty here. Obviously, the prosecutor has concluded that Zimmerman is lying. When you disregard Zimmerman's uncorroborated and self-serving testimony, the remaining evidence strongly suggests that Zimmerman pursued Martin with a gun with the intention of ensuring that he did not "get away" ("these assholes always get away"), provoked a confrontation with him, and then, despite suffering only minor injuries in the fight, shot him. That sounds like murder to me.

Since I'm having trouble still responding to comments through typepad, I'm hijacking this comment to insert my response.

Thanks for these great comments. My friend and distinguished foil, Alice Ristroph, had trouble posting her comment too (boo typepad!), but the gist of her thoughts she reports were made by AF's comment above.

So let me respond briefly: it strikes me that some folks who might be questioning my "surprise" are not reading my comments carefully.
What I said specifically and carefully in the post and in the media reports where I've been quoted (the NYT/Guardian), is that if we take *all the facts reported as true, and this would include Zimmerman's account as well as the witnesses,* (as summarized in the NYT thing I linked to) then there is no way a jury will return a verdict of murder. If you change the facts, my analysis will obviously be vulnerable to change. Most of the, for lack of a better term, pro-murder charge comments, require a scenario that is at odds with what we are told right now. That scenario may well be true, but it avoids the very qualifications that I tried to make on this delicate case. I am trying not to rush to judgment and I hope my interlocutors will read what I wrote in that light.

Related story of interest. I had a talented local crim defense lawyer (who's also a former FL state prosecutor) in my sentencing class this evening. He was convinced that a jury will acquit on all and any charges. I'm not sure I'd go so far, but I'm increasingly interested to see how this case plays out. Last, I have great fondness for the lawyer representing the Martin family (a wonderful FSU alum) and I'm doing my best to just call it as I see it unfold.

PS (again by DM): The Guardian story I was quoted in also reports that Martin's mother has now clarified her earlier statement that this was an accident.

"I made a comment that was later mischaracterised," she said. "In no way did I mean the shooting was an accident. We believe that George Zimmerman stalked my son and murdered him in cold blood," adding that she felt that it was the encounter that was accidental.


Posted by: AF | Apr 12, 2012 7:43:44 PM

I think we are well into the realm of speculation on inadequate knowledge of the facts and therefore can draw no conclusion, nor perhaps even speculate, as to whether this is an overcharge until we see the trial evidence. (And I don't think this D is likely to plead guilty, which is why I doubt, just from a strategic standpoint, that this was an intentional and improper overcharge designed to induce a plea.) Dan's pointing to the imperfect self-defense aspect of the manslaughter statute is helpful. So there could have been a manslaughter theory here, but not if they didn't think the evidence supported the victim having engaged in any aggression toward the defendant. We just don't know, and the prosecutor is right not to tell us yet. Meanwhile, I remain baffled by the law of second degree murder in FL. In another part of the jury instructions that Ken does not quote, it says the prosecutor does not necessarily have to prove intent to kill for second degree--which supports both the idea that this is a depraved-indifference-only statute and the idea that, by negative implication, a simple intent to kill case (without premeditation) might also satisfy the statute. It can't be the case that FL has no place in its homicide scheme for the ordinary intentional killing without premeditation or facts supporting a showing of depraved indifference. Right? Or is it that FL would treat any simple intentional killing as necessarily a case of depraved indifference, on a kind of greater-includes-the-lesser theory?

Posted by: Sam Buell | Apr 12, 2012 7:32:31 PM

Like Sam, I was very surprised to read the Florida homicide statute and discover that depraved heart is the sole basis for second-degree murder (putting felony-murder to one side). Typically, of course, depraved heart is an additional category (beyond purposeful, or beyond purposeful or knowing, killing). Why does this matter? Because depraved heart is an explicitly evaluative mens rea: the fact-finder must make a moral judgment about the highly culpable attitude of the defendant. This could be difficult for the state to prove in a self-defense scenario where D used excessive force but was entitled to use some force. (Perhaps that is what happened here.) In such a scenario, it might actually be easier for the state to prove that the D had purpose to kill or knowingly killed, than to prove he acted with a depraved heart: the jury might find that a defensive purpose negates depraved heart but does not negate P or K.

My reaction was reinforced by reading the Florida jury instructions for second-degree murder:

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:
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.

The second and third elements require an extremely culpable state of mind. If the excessive force scenario turns out to be supported by the facts, then second-degree murder seems quite a stretch. (But as others have pointed out, it may be that the prosecutor has a factual basis for this charge that has not yet been publicly disclosed.)

Posted by: Ken Simons | Apr 12, 2012 7:06:02 PM

"Given...everything we know about the two individuals, that strikes me as the most likely thing that happened."

The background information in terms of "everything we know about them" is evidence that will predominantly be inadmissible.

"The jury finds Martin's girlfriend more credible than a man on trial for murder..."

Wait -- couldn't they both be telling the truth? Their testimony isn't mutually exclusive. It's possible to both follow someone, and have that person punch you in the head.

Posted by: Joel | Apr 12, 2012 5:05:51 PM

"Given the lack of any evidence of Martin assaulting Zimmerman and everything we know about the two individuals, that strikes me as the most likely thing that happened."

There is in fact some evidence that Martin assaulted Zimmerman: Zimmerman's testimony, some of the testimony of the eyewitnesses, and the police report. And there isn't any evidence that your scenario occurred. So it strikes me as odd that you find this completely speculative scenario likely enough to support a conviction.

Posted by: q | Apr 12, 2012 4:44:52 PM

Dan, I'm not sure why you think a verdict of guilty of murder 2 is unfathomable. Say Martin's girlfriend testifies about her phone call with Martin -- Martin told her someone was following him (present sense impression and likely non-testimonial under the Confrontation Clause). Zimmerman testifies to a version of what he told the police -- Martin came up from behind and punched him in the face, started slamming his head into the cement, etc. The jury is given a falsus in uno instruction (if you find a witness lied about anything, you can but need not disregard all or part of his or her testimony). The jury finds Martin's girlfriend more credible than a man on trial for murder, finds Zimmerman was lying, and disregards all of his testimony tending to establish self-defense. Zimmerman will have admitted that he intentionally shot Martin. Murder 2.

Posted by: Michael J.Z. Mannheimer | Apr 12, 2012 4:37:16 PM

I also had the reaction that it's hard to conceive, based on what's public knowledge, that a jury could convict on second degree murder, but could (depending on how it resolves some facts in dispute) convict on manslaughter.

Posted by: David Bernstein | Apr 12, 2012 4:31:50 PM

Why couldn't the prosecutor have concluded that Zimmerman was acting all macho asshole and Martin sasses him or laughed at him or simply ignored him and Zimmerman got angry and shot him. Given the lack of any evidence of Martin assaulting Zimmerman and everything we know about the two individuals, that strikes me as the most likely thing that happened. Wouldn't those facts support second degree murder?

Posted by: Andy Siegel | Apr 12, 2012 4:30:34 PM

Thanks for this post Dan. I looked into this earlier in the controversy, and recall that Florida’s judicial gloss on second degree murder required more than just a general indifference to life, but some victim-specific ill will or spite. Given that requirement, manslaughter (which does not require that piece) seemed like a more obvious fit to me. That said, Marcia Clark said on CNN last night that the 2d degree murder charge was a no brainer, so who am I to disagree.

Posted by: J Bellin | Apr 12, 2012 4:19:39 PM

I read about an audiologist who ran tests and concluded the screaming in the background of the 911 call could not have been Zimmerman's. If a recording of Trayvon could be found, the audiologist could do a similar test for him, and perhaps that has been done. Z claims to have had has face repeatedly pounded into the pavement but my understanding is that there was no mark on his face.

If a jury concludes Z is lying about the screaming being him rather than Trayvon, and that Z is lying about having his head pounded into the pavement, I think a jury could also find he had a depraved mind without regard for human life when he shot an unarmed teenage resident of the gated community which Z was supposed to be protecting.

@Jim, if all that is true/were true, I'd agree, we have a different set of facts, which is why I tried to carefully qualify my claim.
FWIW, my understanding is that the cops did see Z roughed up when they saw him right after the shooting, and that a witness saw Z being attacked by M, with M on top beating on Z. If such evidence exists, it makes it very difficult to conclude that Z shot M with the relevant mens rea for murder. But again, there are many facts and we don't know all of them so I'm only expressing surprise so far, and not disappointment. Yet.

Posted by: Jim | Apr 12, 2012 4:18:42 PM

I liked your point about how Zimmerman should say he's sorry to Trayvon's mother. That's ordinary decency, and doesn't require admitting to anything criminal (it could be that in truth Zimmerman did do something criminal, in which case I can see it could be morally OK for him to wait till after his trial to apologize). Would a lawyer advise Zimmerman against doing the decent thing, tho?

Posted by: Eric Rasmusen | Apr 12, 2012 4:05:08 PM

I'm not surprised, as "overcharging" (either with regard to the severity of the specific crimes, the number of crimes, or both) is a routine practice intrinsic, it seems, to the enormous scope of prosecutorial discretion (it's analogous to the developer who proposes massive a project to a city planning agency knowing full well it won't be acceptable, anticipating the bargaining process in which a putative 'compromise' is reached, assuring the developer that the project he truly had in mind will be built), a problem exacerbated by the lack of sufficient institutional accountability mechanisms.* The practice is encouraged or finds a propitious environment if only because so many cases are settled through plea bargaining. I think Corey is pandering to a significant segment of (angry) public sentiment (while I understand the anger, a media-saturated case like this becomes a magnet for historic and contemporary grievances and injustices that make it hard to focus on the case at hand with any semblance of proper perspective or legal equilibrium).

*As I've noted on this blog before, these topics are well covered in Angela J. Davis's Arbitrary Justice: The Power of the American Prosecutor (2007). As Paul Butler, a former federal prosecutor points out, "the adversarial nature of the justice system, the culture of the prosecutor's office, and the politics of crime pose insurmountable obstacles for prosecutors who are concerned with economic and racial justice [or, for that matter, the somewhat more modest goal of 'public justice']."

Posted by: Patrick S. O'Donnell | Apr 12, 2012 3:18:05 PM

Dan: Aren't the relevant choices under Florida's (atypical) homicide law: (1) 1st degree murder, which requires proof of premeditation (not at all likely provable in this case), (2) 2nd degree murder, which is defined oddly but seems to include intentionally shooting at someone in a manner evidencing high disregard for human life (and which explicitly does not EXCLUDE shooting someone with intent to cause death), and (3) manslaughter, which is causing a death through actions done with gross negligence as to the risk of death. If I am reading the law right, then if the prosecutor does not think Zimmerman was justified on grounds of self-defense, I don't see any choice consistent with the likely facts here other than to charge him and to charge him under (2). It would be odd and maybe unprofessional to argue that the facts are consistent with his conscious (and unjustified) choice to fire at the victim but that legally all he did was negligently cause a death. I am going on my facial reading of the statutes and FL jury instructions, and claiming no experience with FL practice.

Posted by: Sam Buell | Apr 12, 2012 2:51:56 PM

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