What Zimmerman’s Charge Means (Or Doesn’t)

Well, okay, the press conference by Angela Corey is over. Let us be clear, it was the performance of a politician and, not necessarily that of a grounded and by the book prosecutor. Seriously.

First off, Ms. Corey talked in repeated and continued platitudes and never, at any point, identified what the exact charge she was prosecuting Zimmerman under, nor her basis for doing so.

This is important to me, and the discussion herein at this blog, because 1) we are intelligent and actually care about such specifics, but 2) It is really important in a publicly and hotly contested case such as the Zimmerman shooting homicide of Trayvon Martin.

I stand by everything said in my preliminary post today as to why the path, via information filed and prelim process is not only appropriate, but absolutely smart. That still stands.

The only issue, at this point, is the actual charging of the criminal defendant, in this case George Zimmerman. Here is the SOLE charge filed by Angela Corey against George Zimmerman:

COUNT 1: IN THE COUNTY OF SEMINOLE, STATE OF FLORIDA, On February 26, 2012, GEORGE ZIMMERMAN, did unlawfully and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill TRAYVON MARTIN, a human being under the age of eighteen, by shooting the said victim, and during the commission of the aforementioned Second Degree Murder, the said GEORGE ZIMMERMAN did carry, display, use, threaten to use or attempt to use or attempt to use a firearm and did actually possess and discharge a firearm and as a result of the discharge, death or great bodily harm was inflicted upon any person, contrary to the provisions of Sections 782.04(2), 775.08(1) and 775.087(2), Florida Statutes.

That would be 2nd degree murder, as charged. Under what actual section of the pertinent Florida statute are we talking? Well, 782.04(2), 775.08(1) and 775.087(2). does that really tell you where and how the state is proceeding? No. Not to my eye, it does not. Take a look, if you can see the specific, definable, path to charge, then you are a better man and lawyer than I. If you can see, maybe, potential, possible, applicability then join the club. But, that is, of course, not the standard.

Here, however, is the manslaughter provision I proffered in the earlier post. I now see legal gadabout Mark Geragos on CNN saying the 2nd degree statute charged may be actually easier to prove up than a manslaughter charge. He is is fucking crazy loopy off his rocker if he really believes that bleating bullshit.

Seriously, I cannot speak as an active criminal prosecutor, but as a defense attorney, bring this on. If my client has to be charged, I would rather he be over charged, especially nebulously and with all the justification defenses available under Florida law, as either described and/or linked, in the earlier post.

So, to sum up, I would say it is a bit batty to charge the HIGHEST POSSIBLE CHARGE IMAGINABLE, and ONLY THE HIGHEST CHARGE IMAGINABLE, with no lesser included backups. But, hey, what me worry Angela Corey?

Yes, I am perplexed at this. Completely. Let the college of internet knowledge school us on why this is wrong.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
45 replies
  1. rugger9 says:

    As usual you’re on target, bmaz. Do any FL legal beagles know whether the judge can permit lesser charges to be considered at trial, or did Corey have to charge this now?

  2. Elliott says:

    “charge the HIGHEST POSSIBLE CHARGE IMAGINABLE, and ONLY THE HIGHEST CHARGE IMAGINABLE, with no lesser included backups.”

    Feature, not bug?

  3. bmaz says:

    @rugger9: Yes, if requested and supported by evidence (which it will be) before the case is handed to the jury – assuming it makes it that far.

    @Elliott: yeah, not sure yet. Have questions.

  4. nolo_contendre says:

    Long time no squawk to, bmaz!

    Here’s my best theory, of the moment: Corey has seen a ballsitics report — that much is already almost certainly true (its been almost seven weeks). Just posit that the report points toward George Zimmerman confronting Trayvon Martin, face to face, standing up — and firing into Trayvon’s chest, while they are both STILL STANDING UP. That is, the entry and exit wounds are level with one another, at about Zimmerman’s extended arm height. [The contra notion here (to support Zimmerman in a manslaughter/self defense claim) would be that the bullet would have taken a from-down-to-up path, from the front entry wound to the back exit wound on Trayvon’s body, if the two were struggling with each other on the ground, and as Zimmerman has reputedly said, alledging that Trayvon was on top of Zimmerman, bearing down when the gun went off.] Zimmerman could easily have pulled the boy, after shooting him, on top of him, and caused the superficial wounds on the back of his head, himself.

    In sum, I cannot imagine that she would charge second degree murder, if she didn’t think she had some very probative PHYSICAL evidence that soundly, and completley contradicts Zimmerman’s claims of self-defense.

    We will know before too terribly long, but my strong suspicion is that the evidence led her directly to the highest possible charge.

    [On that score, no way do the “as-agreed” facts, known thus far, make out premeditation — so Murder I was never in the cards; no need for a grand jury.]

    And — after all — if she is now thinking politics, she may be thinking that this allows room for a plea, if the evidence isn’t actually quite as strong as I posit.

    Even so, I think today’s events strongly suggest there is some piece of very solid evidence we know nothing about, yet — and I mean beyond the statement from Trayvon’s undertaker that his hands and arms showed no signs of any physical struggle — only the gunshot wounds (all allegedly).

    For now, Mr. Zimmerman needs to be held over — facing the potential of life in prison, he quickly becomes a flight risk. I am pretty sure he thought he was being brought in to be charged with manslaughter, even as late as this morning. Now he’s in for a potential life sentence.

    Stay tuned.

    And, Namaste,

    — nolo

  5. greengiant says:

    From the state that dismissed two state prosecutors during the mortgage crises, from the state where only the state bar can discipline lawyers for disrespecting the court, from the state which speeds up fraudulent foreclosures. I expect this is just theater with the eventual acquittal of Zimmerman being the prosecutor’s goal. Further disclosures forthcoming like ballistics may change that.

    I think there are any number of cases which deserve more scrutiny than this one, murder by police, “burglar” shot in the back, drunken Native American shot and killed while banging on the wrong front door.

  6. MadDog says:

    @nolo_contendre:

    “…For now, Mr. Zimmerman needs to be held over — facing the potential of life in prison, he quickly becomes a flight risk…”

    I don’t know whether I heard this at the start of Rachel’s broadcast on MSNBC (I think so), but it sounded like there is no bail allowed under Florida law for a 2nd Degree Murder charge.

  7. Robert Halford says:

    Why can’t the judge instruct on manslaughter as a lesser included offense, even if not charged in the information? Is there some quirk of Florida law that would prevent that?

  8. Robert Halford says:

    See Florida Rule of Criminal Procedure 3.510, which would seem to specifically permit instruction on lesser included offenses not charged in the information. I’m not a Florida lawyer or a criminal lawyer generally, so there may be something I’m missing.

  9. bmaz says:

    @MadDog: No, there should be availability of release conditions (bail); question is, if so, what are they? I would expect some monetary bail, maybe not that high/outrageous plus restricted movement and electronic monitoring.

    @nolo_contendre: NOLO!! Dammit, get back here! I have missed you! Seriously!

  10. nolo_contendre says:

    No, actually, MadDog — Zimmerman’s new defense lawyer (O’Mara) may shortly make a motion for bail/bond — but the special prosecutor has initially set out the information as s “no bail” charge.

    Once the magistrate declares there is good grounds (akin to probable cause) to hold him over for trial (not that I am assuming away an important step here), his attorneys may move for bail/bond. I am sure they will. I am equally pretty sure it will stay a no bond case.

    For the record, I personally think it would likely be a seven figure sum, if granted at all (and it presents the possibility that some pro-gun benefactor(s) — like the Koch brothers, swoop in and post his bond).

    No, I expect he’ll be in custody from now until trial.

    Namaste,

    — nolo

  11. MadDog says:

    @bmaz: @nolo_contendre: So maybe I misheard or misunderstood Rachel. I wasn’t paying total attention.

    This is from CBS News:

    “…He is being held without bail. The sheriff would not discuss whether Zimmerman will be held in protective custody, but that seems certain, according to analysts.

    His first court appearance will be tomorrow in a secure courtroom within the jail facility. It will be televised. Although he is currently being held without bond, his new lawyer, Mark O’Mara said he will be seeking his full release on bond…”

    And Nolo, your final point regarding the money brings to mind the question of who pays for Zimmerman’s defense attorney O’Mara.

    His original “consulting” attorneys claimed that they were working pro bono until such time charges were filed. Tie that into Zimmerman’s apparent PayPal solicitation for donations recently reported, and that seems to speak directly to the point that Zimmerman and/or his family are not able to fund the attorney fees.

    Seems to leave open outside funding sources like the NRA, a substantial force behind Florida’s Stand Your Ground law.

  12. MadDog says:

    @Robert Halford: Just heard one of Lawrence O’Donnell’s guests, a former US Attorney for Florida, indicate that yes, a manslaughter charge can be a lesser charge for a jury to choose.

  13. bmaz says:

    @Robert Halford: Rob. Jeebus, I am assuming this is not the same Rob Halford I have partied with at the Mason Jar here in Phoenix. If you are that Rob, painkiller baby.

    Either way, the easiest way to get lesser includeds is to, you know, actually charge them. If not, unless the defense stipulates to them being included and going to the jury, it has to be granted by the court. If you want to make sure, you simply do not fuck around with this. Charge em from the get go, or have no certainty of getting them sent to the jury later. Unless Florida is diametrically different than what I know, and understand, that is simply how it is.

  14. bmaz says:

    @MadDog: It CAN be. But the only way to insure it WILL be is to fucking charge it. I am sorry, there are just idiots commenting out there from what I have seen.

  15. EH says:

    She’s charging him somewhat reminiscently of Johannes Mehserle, no? Highly specific, narrowly tailored, and definitely not overcharged, or even including a weapons charge.

  16. MadDog says:

    @bmaz: Well that also reinforces the very “strangeness” you noted as the central point to your post.

    And I notice that even with all the idiots you mentioned, that most everybody was surprised by the 2nd Degree Murder charge.

    As IANAL, I can’t speak to the actual legal difference between Manslaughter versus 2nd Degree Murder, but as a layperson it would seem that there would be a fairly big difference between the two.

  17. DWBartoo says:

    @bmaz:

    There is certainly a great amount of blithering going on … bmaz, which is why it is both a relief and a pleasure, a comfort of sorts, to come here and encounter saner heads less given to displays of righteous ignorance and facile supposition. That you’ve got nolo to join in is simply fantastical.

    My sincere appreciation to all here gathered.

    DW

  18. orionATL says:

    @greengiant:

    my thought exactly,

    from the choice of this particular “prosecutor” to handle the case,

    to the decision not to use a grand jury.

    this case, i suspect, is all about the nra in fla politics, not at all about treyvon williams’ killing.

    further, based on my personal neighborhood experience, i’d bet that g. zimmerman is either mentally deficient or psychologically deficient.

  19. orionATL says:

    look,

    if the guy hit zimmmerman,

    if zimmerman had grass/water/dirt on the back of his clothes,

    that’s it.

    why? because williams is dead and can’t say nuttin’,

    because zimmerman is alive and can make up any story he – or his defense lawyers – want to concoct, and

    because the voters and legislators of florida, in their right-wing madness and lack of caring for the commonweal,

    have authorized an especially brutal version of gun control.

    the central point in this case is not zimmerman’s guilt or innocence,

    it is that the nra represents the manufacturers of pistols and ammunition, and has figured out a way to intimidate state and federal legislators and office holders, in order to maximize the sale of those machines and their necessary accessories

    to anyone w/out a criminal record.

    this is how the mentally-ill va tech killer was able to obtain his weapons and ammunition.

  20. JTM says:

    An opening in a game of chicken? The idea being, when the judge sends this to trial, she can offer manslaughter and get a plea? (Just thrashing wildly here, hoping she isn’t an idiot.)

  21. Cos says:

    According to 782.04(2)Second degree (depraved mind) murder, Manslaughter is the CATEGORY 1 LESSER INCLUDED OFFENSE

  22. bmaz says:

    @Robert Halford: Hi Rob, nice to meet you. Actually, I think the Florida Crim Rule you found, Florida Rule of Criminal Procedure 3.510, does make it easier than I was thinking to get manslaughter as a lesser included. Here is the text:

    3.510. Determination of Attempts and Lesser Included Offenses

    On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:

    (a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense; or

    (b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

    Now, that would presume of course that the evidence adduced at trial truly supported both, with manslaughter being a lesser (and maybe even the further lesser of negligent homicide too), but you would think it likely would. So, it looks like Florida is pretty liberal with allowing nearly automatic lesser includeds to go to the jury, which is good. I would assume the defense could move to not instruct on lesser included offenses if they tactically thought that a good idea (takes some real balls to do that, but it does happen every now and then when the defense is convinced the jury will not convict on the higher count).

    I will be honest, without any experience in Florida trial courts to know how they really deal with these matters in instructing the jury in actual practice, it is hard for me to know for sure how this would play out there. Thanks for pointing that rule out, very helpful.

  23. bmaz says:

    @Cos: Yes, that appears, assuming the facts play out as we think, to be the case. My question was how easy it would be to get the instruction to the jury, but it appears Florida is actually pretty good in that regard, so I may have to take a slight bit of what I said in the post back.

    However, then there is the question of how the charge is treated for preliminary hearing purposes, although you would sure think that Corey is certain she can make the burden on the higher charge for that purpose. The fact she has already obtained an arrest warrant from a court for that charge would support that conclusion.

  24. chetnolian says:

    Late to this but as you know bmaz I am not in your homeland.

    From out here with knowledge of the case gleaned entirely from CNN every morning during my sojourn I wonder if the known(?)fact that Zimmerman went after Martin against specific instructions drove the prosecutor to start from the higher charge. That surely makes the higher level of intent appropriate.

    I also like nolo_contendere’s idea of some really solid evidence.

    But the real reason I came in on this was to say that for a Brit the actual level of media discussion, even though no charge had been laid, was astounding. Our contempt of court laws make us always very leery of any detail analysis even of known facts, let alone point-by-point examination of surveillance videos! Two countries divied not just be ya common language but a legal system most believe to be quite similar!

  25. earlofhuntingdon says:

    Charging only the top charge makes this an all or nothing. The psychology here reminds me of the sort of thing a southern prosecutor might have done in the 1960’s, when forced to bring charges against a white man for having committed an alleged felony against a black man.

  26. harpie says:

    Zimmerman arraignment set for May 29; Miami Herald; 4/12/12

    […] Mark O’Mara, Zimmerman’s defense attorney, asked the judge for a “complete sealing” of future records entered in the case, including witness statements and identifying information.

    [Judge Mark E.] Herr concurred, and said he would make public a two-page probable cause affidavit that backs up the charge of second-degree murder. Herr said he found probable cause for the murder charge. […]

  27. orionATL says:

    @EH:

    furthermore, your comment @ #17 is very intriguing, but very obscure to this non-lawyer.

    could you elaborate?

  28. bmaz says:

    @earlofhuntingdon: Earl, that was very much my concern initially. I am starting to feel a little better because of the, apparently, fairly liberal rule for instruction to the jury on lesser includeds that Rob Halford noted above. So, I would think that would cover the case as presented to the jury. I wonder how such considerations play out on motion to dismiss hearings to the judge pre-trial though?

  29. jimbo says:

    A scenario that may make sense is that Zimmerman may have set out to kill Martin as a ‘scalp’ knowing that he could hide behind the state ‘Self Defense Law’. The motive? Getting in the good graces of local law enforcement, maybe hoping to get a job. Perhaps if the special prosecutor has knowledge of such an attempt, then the second degree murder charge may make sense.

  30. GulfCoastPirate says:

    Here I come with my non lawyer questions if anyone is still reading this thread.

    1. Why seal the documents? What’s in there or could possibly be in there that we don’t already know?

    2. Is it reallly possible where the legal system could make it more advantageous for the average citizen to arm himself/herself to the teeth, shoot first and let the court ask the dead man questions later? This is nothing more than Bush’s and Israel’s idea of preemptive action brought to our neighborhoods.

    Don’t we all really know what happened? Let me explain it for those who haven’t lived in the south for the last 60 years like some of us. A ne’er do well with a gun and an attitude decided to harass a black kid with skittles. The police told the gun toter to back off and he didn’t. The skittles kid ended up dead and the ne’er do well says it is self defense. Self defense from a bag of skittles? How convenient when the skittles kid is dead and can’t talk. The legal niceties seem to be irrelevant to me. If the Zimmerman kid gets off then the lesson is very, very clear. Arm yourself, shoot first and ask questions later. Everything becomes self defense against a big, bad dead person who can’t testify.

    Am I missing anything? This will set the south back 60 years.

  31. harpie says:

    Miami Herald writes about the word “profiled” in this article.

    […] A man who seven weeks ago studied criminal justice and dreamed of becoming a cop is jailed without bond on a second-degree murder charge, accused of profiling and slaying an innocent teenager. […]

    Here’s that bit from the affidavit:

    […] Martin then walked back to and entered the gated community and was on his way back to the townhouse where he was living when he was profiled by George Zimmerman. Martin was unarmed and was not committing a crime. […]

    What does the word “profile” mean in the affidavit? Is Zimmerman being “accused of profiling”? Is there an inconsistency in the way the word is being used in these two examples?

    Miami Herald has a page with all of their coverage, here

  32. Bob Schacht says:

    “Perhaps if the special prosecutor has knowledge of such an attempt, then the second degree murder charge may make sense. ”

    What I’ve been hearing on the toobz is that Corey’s indictment does not need to present all the evidence, and that she probably has evidence not yet public that makes her case more significant. I guess we shall see.

    Bob in AZ

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