“Viable” is a word that can mean a couple of different things in the context of analyzing a prosecutor’s case. I was using it in the strict, technical sense of “legally cognizable,” meaning: I took Branca to be arguing that what he called the State’s “good reason” for trying to prove Zimmerman was a racist is that, as a matter of law, racism can satisfy the prosecutor’s burden of proving the depraved mind mental element of second-degree murder. That is the proposition I took exception to.
“Viable,” however, can also connote “persuasiveness,” meaning: even if racism could in theory satisfy the prosecutor’s burden of proof on the mental element, it only works on the facts of the case if there is persuasive evidence that Zimmerman actually was a racist. I did not mean to suggest that Branca thought the case was viable in that sense — after all, he tells John he believed the state had acted “foolishly” in charging Zimmerman with second-degree murder.
My argument was, and continues to be, that Branca’s description of the law of “depraved mind” in his original email to Hinderaker is inaccurate. He also appears to be saying that the State has no hope of proving that Zimmerman is a racist or that he otherwise had a depraved mind, and I wholeheartedly agree with that. But my point was that the prosecution should be precluded from infecting the trial with meanderings about racism (and, relatedly, “profiling”). As a matter of law, racism cannot prove “depraved mind”; therefore, it becomes a dark atmospheric that is unfairly prejudicial to the defendant.
Again, Branca asserted: “To get to a depraved mind they [i.e., the prosecutors] need to show some kind of hatred or ill-will.” That’s inaccurate. It is not “some kind of hatred or ill-will”; it is a very specific kind of heinous mental state: callous indifference to human life. To be fair to Branca, the model Florida jury instructions are superfluously confusing on this point. (As an aside, I found in my many years as a prosecutor that model jury instructions were flawed more often than you might imagine. They’re a good place to start, but not always good to parrot.) They say that to prove second-degree murder — a death-causing act that was “imminently dangerous to another and evincing a depraved mind regardless of human life” — the state must show each of the following three things:
1. a person of ordinary judgment would know [the act] is reasonably certain to kill or do serious bodily injury to another, and
2. [the act] is done from ill will, hatred, spite or an evil intent, and
3. [the act] is of such a nature that the act itself indicates an indifference to human life.
The confusion lies in the second prong. The classic example of depraved mind murder — which many jurisdictions more helpfully call “depraved indifference” murder – is the savage who intentionally fires into a crowd, knowing but not caring that the shot is very likely to kill someone. We deduce from the nature of the act that the person is acting with ill will or hatred. The person’s indifference to human life is what makes the act hateful or the product of ill will. I don’t see why it should be necessary for the jury to find, separately, that the act was done from ill will or hatred — the act necessarily speaks for itself in that regard.
It is worth noting that even these jury instructions speak of hatred or ill will to be deduced from the act of murder, and make clear that they are inadequate to prove the required mental state unless the act also “indicates an indifference to human life.” That is why, as the jurisprudence I discussed yesterday teaches, you will virtually never find depraved mind murder committed in a one-on-one scenario, especially one involving a claim of self-defense.
Branca had said: “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’.” That is not so. In depraved mind murder, the people frequently will not know each other (think of a terrorist bombing a building); more importantly, even if they do know each other (e.g., the mother who beats her infant to death), the required depravity (and the hatred we infer from it) must be found in the act itself. It is not found independent of the act or in any prior relationship between the actor and the decedent, and even less in any “generalized hatred” (such as racism) that the actor allegedly harbors.
If there is no depravity in the act — and self-defense, a natural right, cannot be depraved — then it does not matter if the actor held despicable attitudes.
I disagreed with Mr. Branca — who I happen to think is a smart guy — because he seemed to me to be saying that racism is arguably relevant to the case. I did not mean to suggest that he was buying the racism angle, only that he thought the prosecution had a plausible pretext for using it. If he doesn’t think so, I am glad to hear it. If he does, I respectfully disagree.