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Zimmerman Prosecution Predictably Collapsing

June 30th, 2013 - 10:13 am

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.

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Top Rated Comments   
The Stand Your Ground law does not come in to play in this case. That law assumes you have the possibility to retreat, and does not require you to do so. Zimmerman had no possibility to retreat, so this is a "standard" self-defense case.
1 year ago
1 year ago Link To Comment
As the facts, concerning this incident, dribbled out, it became increasingly clear, that this was an act of self defense on the part of Zimmerman. That said, never underestimate the possibility that a jury will incorrectly find him guilty. That a professional prosecuter worked to bring charges against Mr. Zimmerman, is disgraceful to her, and the State of Florida.
1 year ago
1 year ago Link To Comment
Very nice explanation of the legalities but none of it matters. We have a prosecutor performing a "great service," for which the Democrats will provide a reward. We have a judge acting on the knowlege that some Democrat will put her on a higher court for making sure the trial goes the "right way." We have a jury terrified, literally if they're not afraid for their lives they should be, should they return anything other than a guilty verdict. We'll see how much courage they have and I'm betting on not much. Even if the jury hangs the names and addresses of those willing to acquit will be tweeted and posted on Facebook in minutes and it will be open season on them. Even if they do acquit, Holder will bring in the USDOJ and there's no lynching like a federal lynching. This is the state of modern America anywhere there are large numbers of blacks and Democrats are in control.
1 year ago
1 year ago Link To Comment
All Comments   (78)
All Comments   (78)
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After a lot of the evidence it seem that this was a train wreck waiting to happen. Guilty of murder no. Stupid yes. But that is what train wrecks are: small errors leading to big consequences and the jump in before the fats by politicians.
1 year ago
1 year ago Link To Comment
Zimmerman is getting hosed because he shot a colored kid, martin got what he deserved, glad he is dead.
1 year ago
1 year ago Link To Comment
Welcome to Øbama's America. Once acquitted, Zimmerman should file civil charges against the State and several "media" outlets. I hope he gets millions and a permanent visa in New Zealand or somewhere cool.
1 year ago
1 year ago Link To Comment
Have we forgotten Rodney King? This will be that on crack!
The media will aim these stories any direction they want to, or just keep silent about them, play it down, but we know that won't happen.
1 year ago
1 year ago Link To Comment
Excepting that Florida is heavily armed.
1 year ago
1 year ago Link To Comment
This article is overly lawyerly. A white guy cannot shoot a black guy and expect to walk away. The white guy is singled-out and targeted by the president of the United States, the US AG, broadcast and cable television networks, metropolitan newspapers -- you name it. They lie, they cheat, they spread disinformation, they poison the jury pool and the witnesses, they threaten violence -- all by design. This is a totally corrupt justice system. The law is irrelevant except as an academic exercise.
1 year ago
1 year ago Link To Comment
Zimmerman will be found guilty. Preordained by the DOJ, Florida, the media, liberals, and the parasites who live or survive by playing the race card at any convenient moment. Even if there was video evidence to support Zimmerman, it wouldn't have been allowed because it would have been considered prejudicial to the prosecution's case.

This kangaroo court has been in session and guilt declared at the time of the announcement of Zimmerman's indictment.

Count on it!!!
1 year ago
1 year ago Link To Comment
Let's just move on with the show trial, get the verdict, and get on with the Summer rioting. Riot Season is August thru October in Florida
1 year ago
1 year ago Link To Comment
I believe everyone who has been following this case has made the decision to arm them selves in the event Zimmerman is acquitted.
I believe the riots will happen conviction or acquittal just because the Martin supporters want to riot.
The day of the verdict I'm staying home behind closed doors that will need to be broken down before entering that way I won't be in the same government lynching type scenario Zimmerman is in.
1 year ago
1 year ago Link To Comment
In case of riot, load those thirty round magazines. That doesn't leave much hope for NYers with those seven rounders, does it.
1 year ago
1 year ago Link To Comment
"I believe the riots will happen conviction or acquittal just because the Martin supporters want to riot."

Sadly, that's the truth of it.

But here's another truth that the "Get Wh1tey" crowd,(and not all Martin supporters belong to that crew), never learned from the LA riots:

In a time of general disorder with widespread acts of mayhem, there is no rule written anywhere that says that Caucasians cannot ALSO get them some rioting in.

Do you think that the LA riots were confined to South Central by ACCIDENT?

If you wish to send Cedric a birthday card, you might want to tape it to a brick and throw it into the La Brea tar-pits...his skeleton is likely down there, with his gold teeth and his Crips rag, riding the bones of a wooly mammoth.
1 year ago
1 year ago Link To Comment
It's amazing people like you are always calling on Jesus. Why do you need him? You can already forgive yourselves for anything.

Martin wasn't a thug. He was a teenager walking down the street who was stalked and confronted by a would-be vigilante with a gun. He stood his ground and knocked over a larger guy, who, it turns out, was also a wimp for all his kung-fu training and had to resort to lethal force to save himself from a kid. If this weren't a tragedy, it would be a farce since Zimmerman is so typical of the kind of ridiculous marginal characters who infest the American nutty right, i.e. you guys.
1 year ago
1 year ago Link To Comment
Never mind all the evidence, Harrison, just keep mouthing your alternate universe nonsense. Everything I've seen says Martin was a thug, and a wannabe criminal. Zimmerman was no vigilante, just a guy looking out for his neighborhood. Zimmerman had a perfect right, a duty even, to keep an eye on Martin. Martin's assault on Zimmerman was NOT justified by anything Zimmerman did. The only tragedy involved in this situation is that Zimmerman did us all a favor and it might end up ruining his life.

1 year ago
1 year ago Link To Comment
Wasn't a thug? Have you seen recent pictures of him recently? Did you read his postings about drug use, etc.? Did you notice that he was coming home from the store with tea and skittles, but the store clerk testified that he didn't buy anything?
1 year ago
1 year ago Link To Comment
It's amazing you people always calling for the presumption of innocence and the rights of the accused.

Zimmerman was just a guy walking down the streets who was attacked by an angry young man, right?
1 year ago
1 year ago Link To Comment
more to the point ... an angry young punk
1 year ago
1 year ago Link To Comment
Basically, yes.
1 year ago
1 year ago Link To Comment
Not that it matters to one of your perspective, but Martin was actually about a foot taller than Zimmerman.
1 year ago
1 year ago Link To Comment
You assume the prosecutions point of the charges is to win. I think it's cover, a very expensive, very crude and abusive case of CYA.

The charges are outlandish and dramatic - ethnic rabble-rousers appeased . . . check.

Zimmerman gets released, rational folks are appeased . . . check

Hold press conference saying "over the next few months we will review other possibilities" and never do it. Hopefully hold off riots, but if you don't that's not the prosecutors problem but for the police. Backside sufficiently covered!
1 year ago
1 year ago Link To Comment
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