Apropos of that, Powerline’s John Hinderaker has had an interesting exchange with Legal Insurrection’s Andrew Branca. Putting aside the lack of evidence that Zimmerman is a racist, John forcefully argues that, in the context of this homicide prosecution, his purported racism is “utterly beside the point.” The crux of the case, instead, is a simple matter of whether Zimmerman’s admitted shooting of Martin was in legitimate self-defense. Mr. Branca counters that the prosecution is using racism (or at least the specter of racism) to substitute for its dearth of evidence on the required mental element – namely, that Zimmerman acted with a “depraved mind.”

Mr. Branca is quite right that this is what the prosecution is trying to pull. He goes off the rails, though, in suggesting that this is a viable theory. With due respect, I think his explanation of the statutory term “depraved mind” is wrong. In part, he is conflating two separate mens rea concepts that arise in murder cases: depravity and premeditation.

After correctly observing that “Murder involves premeditation to kill or, in Florida, a ‘depraved mind’,” Mr. Branca elaborates (italics are mine):

In order to prove the second degree murder charge the State brought against Zimmerman they must prove beyond a reasonable doubt that he acted with a depraved mind. To get to a depraved mind they need to show some kind of hatred or ill-will. In most murder 2 cases the people know each other and have a long history of animus, which is the source of the “depraved mind”. Here Martin and Zimmerman did not know each other, so the State is forced to pursue some more generalized hatred – such as racism.

I disagree. Generalized hatred has nothing to do with “depraved mind” murder. In such cases, we are not talking about intent driven by an attitude specifically related to the victim, triggered by long-held animus. We are talking, instead, about something almost diametrically opposite: a perverse lack of regard for human life – not the victim’s human life but all human life.

Explaining this concept (with reference to New York state law) in the 2012 case of Gutierrez v. Smith, the Second Circuit U.S. Court of Appeals instructs (my italics):

The archetypal depraved indifference murder … would resemble “shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions’ cage in the zoo.”  By contrast, … a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.

Zimmerman’s killing of Martin is a one-on-one shooting. Now, to be sure, the court did not say that one-on-one killings can never qualify as “depraved indifference” murders. But it is exceedingly rare. When it does occur, the focus is not on the subjective intent of the killer but the objective recklessness of the killing – e.g., a mother who beats her infant to death (uncommon brutality combined with a particularly vulnerable victim), or perhaps a game of Russian Roulette (or “Polish roulette” as it was called in a 1989 New York case – People v. Roe – in which the accused loaded a gun with both real and dummy bullets, pointed the gun at the victim, and callously fired).

With due respect to Mr. Branca, when the murderer knows his victim and there is a long history of animus, we are usually talking about premeditated murder. The animus tends to prove that the decision to kill was made before the act that caused death. In Florida, that is first-degree murder, which is not charged in the Zimmerman case.

Depraved mind murder, to the contrary, involves a state of mind evincing no regard for human life. Far from a feeling of hatred or ill-will toward the victim, what makes the killing depraved is the perverse lack of feeling for the victim (i.e., there is no recognition of the victim’s humanity). Having a motive is indicative of acting with deliberation, not recklessness or indifference. In a depraved mind case, motive is superfluous because what establishes the mens rea is the objective barbarity of the act itself, not some fuzzy “generalized hatred” that may have been crawling around the killer’s brain.

It is virtually inconceivable that a situation involving self-defense on the killer’s part will fit a “depraved mind” charge. And I am not limiting myself to situations when the self-defense claim is legally convincing. I am saying that in any one-on-one scenario where self-defense is worth raising, it is nigh inconceivable that a “depraved mind” murder has occurred. To be more concrete, let’s say we are in a self-defense situation where the claim is legally insufficient: for example, the use of lethal force was not a proportionate response to the threat; or perhaps the killer provoked the altercation that eventually led to his use of lethal force. In such circumstances, we can reject the self-defense claim but still recognize that the killing was not “depraved.” The degree of inhumanity required to make a killing “depraved” is not going to be found in circumstances where a person is defending himself, even if that defense is – as a matter of law – excessive.

There is thus a chain of abuses that makes the Zimmerman prosecution a disgrace. There is no evidence that Zimmerman is a racist. Racism cannot be inferred from invocations of “profiling” – which tell us more about the prosecutors than about Zimmerman. The imagined “profiling” cannot be inflated into a “generalized hatred.” Even if there were a generalized hatred, it cannot substitute for proof of the required mental element of depraved indifference to human life – racism is a noxious attitude, but there are people who are mildly racist; no one is mildly depraved.

It is abundantly clear that the murder of Trayvon Martin is not a case of second-degree murder, a charge that carries a possible life sentence and a minimum of 25 years’ imprisonment (because a firearm was used). Yet, the special prosecutor brought the charge anyway. Plainly, she hoped Zimmerman would be either railroaded in a trial that substituted incitement for proof, or intimidated into pleading guilty to a lesser charge.

This case does not belong in a criminal court. That it has gotten this far is a sad triumph of demagoguery over due process.