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Zimmerman Prosecution Predictably Collapsing

Posted By Andrew C. McCarthy On July 2, 2013 @ 12:37 am In Daily Mailer,FrontPage | 95 Comments

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This article first appeared in PJMedia.  Andy McCarthy is the director of the Philadelphia branch of the David Horowitz Freedom Center.

The state of Florida’s politically driven decision to charge George Zimmerman with murder has resulted, as some of us predicted it would, in a pathetically weak case. It has taken only a few days of trial to collapse of its own weightlessness – undone, in fact, by the direct testimony of a prosecution witness, as Bryan Preston relates at the Tatler and Ed Morrissey details at Hot Air.

Over a year ago, I explained why this would happen:

When Trayvon Martin was first shot to death nearly two months ago [on February 26, 2012], state authorities sensibly opted not to charge George Zimmerman with murder. It wasn’t that they were looking to excuse wrongdoing. It was that the evidence was insufficient to prove murder beyond a reasonable doubt.

Plainly, there was a lack of criminal intent: There was obviously no premeditation; and, alternatively, the facts do not remotely suggest that Zimmerman acted with a “depraved mind regardless of human life” (e.g., the savage indifference of a man who fires into a crowd, heedless of the consequences). To the contrary, the known facts indicate (a) Zimmerman’s concern that Martin was acting suspiciously (the depraved do not call the police, as Zimmerman did, before shooting), and (b) a struggle in which Zimmerman may well have been severely beaten and, in any event, would have a strong basis to persuade a jury that he shot in self-defense.

In advancing that argument, Zimmerman would be aided by Florida’s “Stand Your Ground” law, which gives the law-abiding latitude to use guns for protection….

The “Stand Your Ground” point was gravy as far as the baseless murder charge was concerned. If a prosecutor cannot prove the statutorily required intent element (mens rea) for murder, then the accused’s conduct cannot amount to murder, period. The accused only needs to rely on a legal defense of his conduct (such as self-defense) if the prosecution’s proof is sufficient to establish the offense (here, murder) in the first place. But “Stand Your Ground” would have been very relevant had Zimmerman been formally accused of an offense less serious than murder. Regarding that, as I observed when Zimmerman was initially charged:

Florida law makes causing the death of a person under the age of 18 manslaughter, provided there has been “culpable negligence.” It also criminalizes as manslaughter the “unnecessary killing” of a person in order to resist or prevent that person’s violation of law (e.g., the use of lethal force to repel a clearly non-lethal threat). Neither of these charges would [be] a slam-dunk; indeed, they’d be losers if Zimmerman shot because he was justifiably in fear of his life.

Despite the palpable lack of evidence that Zimmerman had the required intent to commit murder, the state bowed to pressure from the racial grievance industry (led by Huckster-in-Chief Al Sharpton), shamefully aided and abetted by the most politicized, race-obsessed Justice Department in American history. Lest we forget, it was Attorney General Eric Holder’s collaboration with Sharpton and threat to trump up a federal civil rights prosecution that induced state officials in Florida to reconsider the initial decision not to charge Zimmerman.

It’s easy for a corrupt process to produce criminal charges. It is quite something else to prove them. To try to fill the gaping intent hole in its case, the Zimmerman prosecution has transferred the hobgoblin of racism from the headlines into the courtroom. Indeed, it did not even wait for the trial to do that; the prosecutor injected racism directly into the charging documents.

As I noted at the time, the affidavit in “support” of the murder charge employed the explosive term “profiling” to describe Zimmerman’s suspicion of Martin. That word has no place in a charging instrument: It was transparent code to imply, in the absence of any evidence, that Zimmerman is a bigot who assumed Martin was up to no good just because he was black.

“Profiling” is an ambiguous term. Generally speaking, it is a perfectly appropriate, commonsense practice – a marshaling of various characteristics and behaviors typically found in kinds of criminal conduct. It is routinely used by police to avoid hassling innocent people. Like all sound police practices, it can be abused – a bad cop can invidiously home in on one characteristic (like race, religious belief, political stance) and groundlessly associate it with criminality. The latter is rare, but it is unfortunately what the racial grievance industry, echoed by the media, has conditioned the public to think of when the term “profiling” is used. It is this slanderous connotation of “profiling” that the prosecution wants people (especially juror-people) to associate with Zimmerman. Rather than as a legal term, the charging documents use “profiling” as an atmospheric – since prosecutors had neither the evidence to prove racism nor the courage to be forthright about what they were doing.

It would be bad enough to do this in a case where attitudes about race were pertinent – say, a prosecution for violating someone’s civil rights. But it is even more shameful to do it in a case where attitudes about race are legally irrelevant. However much the media may be fascinated by racial dynamics, racism or the lack of it should have no bearing on a prosecution for what the law calls “depraved indifference” murder (second-degree murder in Florida).

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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