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One More on Zimmerman and ‘Depraved Mind’ Murder

July 1st, 2013 - 7:59 am

I am a fan of Bill Jacobson’s Legal Insurrection (legalinsurrection.com) and as such I am not surprised at the stellar job LI’s Andrew Branca has done covering the George Zimmerman trial in Florida. (Mr. Branca’s most recent update is here.) I am only surprised to find myself in a disagreement with Mr. Branca — or at least what I thought was a disagreement — over the viability of the prosecution’s legal theory that Zimmerman’s killing of Trayvon Martin was a “depraved mind” murder (i.e., murder in the second degree under Florida law).

My post here at Ordered Liberty on Sunday was in part addressed to a discussion Branca had on that subject with Powerline’s John Hinderaker (detailed in John’s post here). John had argued that the accused’s attitude (if any) about race — a distorted focal point of the media coverage and of the prosecution’s sly presentation — ought to be irrelevant to the central question of whether Zimmerman acted in self-defense. Mr. Branca seemed to take issue with that, although there is some ambiguity about how much his responsive contentions reflect his own views as opposed to reflecting his explanation of what the prosecution is (waywardly) trying to do.

I countered that while I agreed with Branca on what the prosecution was trying to do — namely, use Zimmerman’s purported racism to fill the gaping evidentiary hole in its case — I disagreed with Branca’s explanation of depraved mind murder and with what I took to be his “suggesti[on]” that the prosecution’s theory was “viable.”

Branca has now responded on Powerline (I think it is another email to John; I do not see it cross-posted at LI. If I’ve missed it there, I apologize). He says I misconstrued what he insists was his crystal clarity in arguing “that the State’s strategy was not viable,” and claims to be astonished that I “managed to miss that.” In particular, he takes issue with my purportedly attributing to him the word “viable” which he has taken great pains to confirm that he never uttered.

Let’s take the easy part first: I never said Branca used the word “viable.” And note that I did quote Branca’s argument at great length (and quote it yet again below). Readers can judge for themselves, but I thought I was pretty clear about when I was quoting Branca and when I was using my own words (like “viable”) to analyze his contentions.

Now, let’s get to his argument. He asserts that it “is beyond” him “how [I] managed to miss” his point that the “State’s strategy was not viable” given that he has written a blog post in which the lack of viability was “the entire point.” I’ll take him at his word on that, but I was going with what he wrote to John Hinderaker. Here, again, is what he said:

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.

It seemed to me from reading this that Branca was saying the state’s focus on Zimmerman’s supposed racism was a “viable” (my word) way of proving the required mental element. I further deduced that Branca may have been led to that incorrect conclusion by his apparent misunderstanding (in the paragraph excerpted above) of what that mental element is in a “depraved mind” murder case.

I felt pretty confident construing it this way not only from what Branca wrote here, but from the context. Branca was writing in response to Hinderaker’s suggestion (correct in my view) that racism is irrelevant to the legal issues in the case. As John wrote, “Andrew Branca, a criminal law expert … wrote to say I had overstated the point,” and to explain that “[t]here is a reason … for the prosecution’s dragging race into the case.” Whereupon Hinderaker quotes Branca as stating: “Actually, those elements [i.e., racism, profiling, and Zimmerman’s acting as a 'wannabe cop'] are being pursued by the State for a good reason – they are essential to the State’s ability to prove the ‘depraved mind’ necessary for a murder 2 conviction, which is what the state is pursuing (however foolishly) against Zimmerman.” (My italics.)

Comments are closed.

Top Rated Comments   
All white people have depraved minds, according to the Left.
41 weeks ago
41 weeks ago Link To Comment
One 'argument' against Zimmerman was that his injuries are minor. They are only that because he stopped the attack.
41 weeks ago
41 weeks ago Link To Comment
Zimmerman's actions prove he was NOT a racist.
Zimmerman protested and organized a City Hall meeting to support a black homeless man whom was a victim of a beating by the son of a Sanford police officer, from December 2010, through January 2011.

Was there any action, at any time, by Trayvon Martin, to show he was involved in any inter-racial activity that would indicate he was NOT a racist? On the contrary.

If the character of Zimmerman is evidentiary, the character of Martin is evidentiary.
Case dismissed; Let the riots begin.
41 weeks ago
41 weeks ago Link To Comment
All Comments   (51)
All Comments   (51)
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De facto, racism and race are relevant in every case, criminal or civil, public or private, national or international, earthly or interstellar. If we learned nothing else from the OJ, Duke lacrosse, and the double-jeopardy Rodney King trials, that would be it.
41 weeks ago
41 weeks ago Link To Comment
As an old fangrrl of McCarthy and a new fangrrl of Branca, I'm just sitting back watching two great minds debate the issues. Don't let us interrupt. Pass the popcorn.
41 weeks ago
41 weeks ago Link To Comment
"He says I misconstrued what he insists was his crystal clarity in arguing “that the State’s strategy was not viable,” and claims to be astonished that I “managed to miss that.” In particular, he takes issue with my purportedly attributing to him the word “viable” which he has taken great pains to confirm that he never uttered.

Let’s take the easy part first: I never said Branca used the word “viable.” And note that I did quote Branca’s argument at great length (and quote it yet again below). Readers can judge for themselves,"

Oy!

Y'know...this is why you have to pay lawyers money,(and pick up the check), for them to have lunch with OTHER lawyers.

Can you imagine these guys over a table?
41 weeks ago
41 weeks ago Link To Comment
McCarthy -- I am a big fan of yours. That being said, it seems a bit of an indulgence to go into all this detail regarding Mr Branca's apparent problem with your earlier article. I certainly understand wanting to defend yourself, but this seems more like a minor misunderstanding.

I mean, whether the notion of "viable" was implied or actually stated... really, be above all this. You can be trusted to provide top notch legal analysis. Part of that means to yes, take the time to answer once the criticism or attack of Mr Branca, but after that (in one or two sentences), move on to the weightier matters of the day.

Reclaim the high road :-)

-- FF
41 weeks ago
41 weeks ago Link To Comment
I've wondered from the outset, many months ago and from my legalistic naivete, why the State charged Zimmerman with Second-Degree Murder, when it required proof of a depraved state of mind, which did not seem to fit even the earliest reported information. These analyses help to understand the devious and political motivations behind the framing of the charges (framing being a particularly appropriate adjective, I believe).

A couple unanswered questions remain for me:

If the defense is relying completely on the self-defense, and all these arguments about racism, wannabe cop, etc. are irrelevant, why does the judge choose to allow them at all --- or is this part of the racialist pandering strategy to show they bent over backwards to allow a guilty verdict.

Can the jury decide to find Zimmerman guilty of a lesser charge (e.g., manslaughter, criminal negligence), or can the judge open the possibility of a lesser charge for them to find? This appears to occur in some jurisdictions, but has not been mentioned here.

Did the special prosecutor in this case paradoxically and purposely serve justice in the end, while kowtowing to racialist demands, by specifying a charge that sounds great ("Second-Degree Murder) against Zimmerman that would be essentially impossible to prove, and indefensible on appeal even if the jury goes wrong and falls for the gimmick?
41 weeks ago
41 weeks ago Link To Comment
It's racial pandering, not 'racist'. Racism is the belief that one race is in some objective way superior to all others. There is no such criterion, but back a hundred years ago some thouhgt so. Racism is not the simple observation of the fact that races do differ from each other in thousands of ways.
41 weeks ago
41 weeks ago Link To Comment
All white people have depraved minds, according to the Left.
41 weeks ago
41 weeks ago Link To Comment
All normal white people.
41 weeks ago
41 weeks ago Link To Comment
One 'argument' against Zimmerman was that his injuries are minor. They are only that because he stopped the attack.
41 weeks ago
41 weeks ago Link To Comment
I'm not a lawyer, though I've beaten a lot of them, and I've never been before a lay jury. I have, however, done many hundreds of labor arbitrations and labor board hearings before arbitrators, administrative law judges, and lay boards advised by ALJs. Over the years I came to believe that proof was just something lawyers argued about. There really isn't any difference between preponderance of evidence, clear and convincing evidence, and reasonable doubt. There is no fine metric to determine if and to what extent the elements of the misconduct are present or how much weight to give each element. It makes for good law class exams and spirited discussions between the initiates, preferably with a glass of fine whiskey in the hand, but the heart of the matter is an advocate must persuade the trier of fact or the jury or board that his position is "right," a term with no precise meaning. An advocate's demeanor and reputation has as much to do with prevailing as anything else; as do the atmospherics surrounding the case or controversy.

In this case the defense has a two-fold task: first it has to persuade the jury that Zimmerman had a reasonable fear for his life and, second, it has to convince the jury that it has a duty to society to acquit Zimmerman. The prosectution's whole case is to set up the atmospheric that the jury has a duty and that society has an expectation of Zimmerman's conviction. I think the second element is far tougher for the defense than the first; they'll get the picture of an ominous gangsta wannabe out and can show that Zimmerman was being badly beaten. It's tough even for experienced advocates when the other guy goes first not to be sitting there wondering why the Hell you're sitting there as you hear him put on his case. We've only heard the prosecution and some cross by the defense. Persuading that jury that the society to which they must return expects them to do something other than convict is a really, really tough burden given the atmospherics of this case. This case will not be decided on the fine logic of the elements of proof required to demonstrate a "depraved mind;" nobody really knows what that is anyway. The defense has to convince that jury that they can go home in safety and enjoy the approval of society if they acquit. Tough job!
41 weeks ago
41 weeks ago Link To Comment
That is what is so scary about this whole thing. That jury is going to have to have a lot of courage to do the right thing. Hopefully they are not cheating & following the judge's orders to not engage in any coverage of this case outside the courtroom. Katie bar the door if they are.
41 weeks ago
41 weeks ago Link To Comment
........& are following the judge's orders..........
41 weeks ago
41 weeks ago Link To Comment
All women jury, here we go again?
Judging from the deluge of women showing sympathy for charged murderer Aron Hernandez because he is cute and sexy leaves me wondering about having an all woman jury. Will the same thing happen when they repeatedly show Trayvon as a cute little 12 year old? The juries out all right.

Is it just me or does something smell already with this latest media side show and legal circus.
41 weeks ago
41 weeks ago Link To Comment
Same phenomena is playing out with the surviving Boston Bomber Dzhokhar Tsarneaev.
41 weeks ago
41 weeks ago Link To Comment
You're right that self defense cannot be depraved but I don't think the prosecution is conceding the shooting was in self defense. If they are saying the shooting was self defense but that Zimmerman deserved a beating to death or near death because he had unfavorable feelings towards a particular group, well, it is time for a revolution.

If they are saying that Zimmerman hated blacks and provoked a confrontation with Martin solely as an excuse to kill him, racism would obviously be relevant as that would be the motive. OTOH, as that would indicate premeditation that would make it murder 1, which he is not charged with.

The bottom line is that Angela Corey and Bernie de la Rionda are either incompetent or so driven by ambition they have forgotten right from wrong and should be removed from the practice of law much less the enforcement of it.


41 weeks ago
41 weeks ago Link To Comment
The prosecution conceded the point of self defense yesterday (IMO). It was during the testimony of Serino. However, they continued to push their 'the injuries were minimal' meme so it seems they are trying to maintain that Zimmerman may have been defending himself but he could have done so w/o shooting Martin.
I also think this is where the prosecution's attempt to portray Zimmerman as some MMA ninja, able to break whole buildings with his bare hands was/is heading. Also their attempts to get his past college courses in evidence to show he knew the SYG laws and so knew how he should tailor his story to make it fit a self defense or SYG scenario. One problem with this is that it was 7 pm and in public. They will have to explain how Zimmerman could assume no one would be filming behind the shelter of their apartment windows.
Aha! Another reason the prosecution MUST convince the jury that it was Martin screaming. It throws their whole 'Zimmerman was a MMA ninja cop wanna be well versed in self defense law who stalked Martin to kill him' into a cocked hat.
41 weeks ago
41 weeks ago Link To Comment
Perhaps the jury will feel that they are being made scapegoats by state officials who are two cowardly to do the right thing, and so they do not wish to have their lives ruined. So perhaps they will deadlock intentionally, and the case will be re-tried until Zimmerman accepts a plea bargain.
41 weeks ago
41 weeks ago Link To Comment
In reality, if the jury deadlocks, it's not very likely anyone in government would want to retry the case. It should be very obvious to everyone that Zimmerman is NOT guilty of anything except attempting to perform a civic duty, and having to defend himself as a result.

The negroes and media will, of course, scream bloody murder, but this time it won't be so easy to lead people down the wrong path.
41 weeks ago
41 weeks ago Link To Comment
too
41 weeks ago
41 weeks ago Link To Comment
Who told you that right and wrong had anything to do with the practice of law or the enforcement of the law?
41 weeks ago
41 weeks ago Link To Comment
Yes. Have experienced this as well. My father also used to testify as an 'expert witness', as a doctor, in San Jose in the 60s. He learned to hate the trial system and was convinced that lawyers on both sides just twisted the truth to their own interest. I think my Dad was right.
41 weeks ago
41 weeks ago Link To Comment
Some guy who said "an advocate must persuade the trier of fact or the jury or board that his position is 'right'"
41 weeks ago
41 weeks ago Link To Comment
That doesn't mean that his position is objectively right; it's just the position he can get somebody to believe. You'd like to hope that an advocate wouldn't take a position he knew to be wrong, but defense lawyers, union reps, etc. do it every day. Even representing the employer I've been sent in a LOT of times to take a position in which I didn't personally believe but which my principals wanted advocated. It gets down to "Is this the one i quit over?"
41 weeks ago
41 weeks ago Link To Comment
But remember what my point is, that there is objective right and wrong -- i.e. you shouldn't charge a guy with a crime that you suspect he didn't commit/ that you shouldn't withhold evidence that would exonerate him/ that you shouldn't use witnesses that are likely liars etc. -- and that if someone in power is caught doing such things you should become very angry and demand they be severely punished.

It's not that there aren't liars in the legal system -- on both sides --, or that are laws are often written to benefit them, its that there comes a point where a line is crossed and we can't look the other way.
41 weeks ago
41 weeks ago Link To Comment
Just remember, Bill, probably less than half of Americans and a much smaller percentage of Americans under 40 or so believe in anything like objective reality or objective right and wrong; they live in the world of "right for me."
41 weeks ago
41 weeks ago Link To Comment
Exactly. Moral relativism has so badly permeated our society, it is at the point of no return.
41 weeks ago
41 weeks ago Link To Comment
I fear that might be true.
41 weeks ago
41 weeks ago Link To Comment
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