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.)