Let there be no doubt the decision to charge George Zimmerman with 2nd Degree Murder is a political decision first, and a legal decision second.
The Politics
There will no doubt be those who would naively state politics was not part of the legal consideration and decision. That is a ridiculously disingenuous position. Angela Corey is an ELECTED official. Get that. ELECTED. So yes politics are inherently woven into the decisions of highly public cases. Politics, and the politicians who engage in it, are tied at the hip to being swayed by public opinion. It doesn’t matter the legal profession of the politician, they are a politician first and a lawyer second.
The Announcement
The primary person missing from the highly public announcement was Joe Friday who was desperately needed to state “just the facts ma’am”. Obviously special prosecutor Angela Corey was as concerned about the “optics” of her decision, as she was the substance. One does not need to be highly in tune to the body politic to witness and understand the announcement was filled with “feeling” over “fact”. Ms. Corey did a masterful job in attaching a specifically intentional emotion factor with specific use of verbage to connect her decision to emotion over logic.
When you watch the professional political class engage in intentional electorate connection it can appear insufferably self-serving. This was definitely the case with Angela Corey.
The Motivation for Charge
Against the shere weight of the political pressure, and with forethought for outcome, she chose to prosecute George Zimmerman with the absolute maximum charge. One charge. Second Degree Murder. She threw the book at him.
Was this a smart decision? Legally – no. Politically – heck yeah.
Remember she provided ONE CHARGE. Just one. So Zimmerman only has to defeat one charge and defend himself against one charge. (Setting aside the possibility of pleading the case down to a lesser charge)
Was this legally smart? No, ….. but remember this is about politics not legality.
2nd Degree Murder defined by Florida Statute 782.04:
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.
This 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.
Looking at the charge you understand the delay. “The unlawful killing of a human being” – this is the first hurdle, and the hurdle the investigators have spent the past 6 weeks reviewing. Was the killing “unlawful”, or was George Zimmerman acting in “self-defense”. Remember self-defense is only applicable in 2nd Degree cases. Obviously, after gathering all the facts the special prosecutor Angela Corey felt the killing was unlawful. But as we have previously outlined the “immunity defense” will strike at the heart of this single biggest issue.
In Florida, after charges are filed a preliminary hearing with a judge is allowed where the defendant (Zimmerman) can initiate the immunity statute and protect himself from prosecution. If a judge finds Zimmermans actions justified, and agrees the immunity statute applies, against the weight of the evidence against him the entire case can be dismissed. Remember, there is only one charge, 2nd Degree Murder .
Immunity Statute: 776.032
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
So the very first legal test will be one of immunity. Was the killing indeed “unlawful” as the prosecutor claims?
The law continues:
…….when perpetrated by any act imminently dangerous to another……
So in this aspect the prosecutor is going to have to prove that Zimmerman took specific action that was eminently dangerous to another. Here is where the “did Zimmerman initiate contact” question comes in to play. Did Zimmerman’s action of getting out of his car and following Trayvon constitute an “eminently dangerous act”? Obviously Angela Corey thinks so.
But again, this is a big hurdle in this case. To find such actions imminently dangerous is to state that a lawful citizen while inside their own community, is acting recklessly by identifying a suspicious person, and even though on the phone with police is watching their movements. Big legal hurdle.
Next hurdle:
…………. and evincing a depraved mind regardless of human life…..
This one is even more challenging. Here is where the question of “what was Zimmerman’s mindset at the time” comes into play. This is also where his specific wording while on the phone with 911 operator will be used. Did he say “fucking Coons, or Goons, or Cold, or …”? And is it reasonable to state that such an emotional statement is enough to convince a jury that Zimmerman was of a “depraved mindset” evidencing of an aggressive indifference to his conduct.?
What would a reasonable person do, or say, in the same, or similar, circumstances? Obviously Ms. Corey feels she can convince a jury that Zimmerman was “depraved” at the time. Really big hurdle considering his open, voluntary and unrepresented cooperation with police, and combined with testimonials from others within the community who support Zimmerman.
Lastly:
…although without any premeditated design to effect the death of any particular individual..
This is the key aspect that diminishes Murder in the first degree, to Murder in the second degree. The absence of forethought, or premeditation. This is obvious because Zimmerman was actually the one who initiated contact with police by dialing for assistance. It would be impossible to prove he had specifically set about that evening to track down Trayvon Martin and kill him. He didn’t.
Summary: Unless there is profound contrary evidence within toxicology, coroners reports, physical evidence, forensics and testimonies than are already known, Zimmerman has a really strong case to defend himself.
Additionally, if, as currently suspected, there is little chance of a conviction, then it is reasonable to state that Ms. Angela Corey has intentionally lit the powder keg of racial division for a summer of riots following a non-guilty verdict.
….. and who does that help?
For the prosecutor, Angela Covey, to embrace the Martin family attorneys with thanks at the press conference, and for AG Eric Holder verbally to praise Sharpton today, tells me that a case which should be about facts of who did what to whom is going to turn into an even bigger racial narrative for a variety of purposes which have nothing to do with the guilt or innocence of the accused. – Prof Jacobson