All Zimmerman or All Trayvon Martin

Many criminal defense lawyers studiously ignore cases that catch the public’s attention. They just aren’t that legally interesting, even if the facts or issues give rise to popular passion. And so it’s been for the trial of George Zimmerman for murder 2º in the killing of Trayvon Martin.  Aside from John Steele’s having  raised the question of the ethics of overcharging, there hasn’t been a whole lot to write about.

Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter. 

As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.

George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?
The short answer: the judge said they could.
Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.

Notwithstanding what either party individually contends, it remains the judge’s responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it.  So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise.  That’s not happening here.

While it may be that Zimmerman’s claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn’t entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.

Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.
There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.
In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary  manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”

That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.

As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has  borne this out to a large extent.

But most damning is the prosecution’s  second request of Judge Debra Nelson.

Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.
But defense attorney Don West called the proposed instruction “a trick,” and he accused the prosecutor of springing it on the defense at the last minute.
“Just when I didn’t think this case could get any more bizarre, the state is alleging child abuse?” West said. “This is outrageous. It’s outrageous the state would seek to do this at this time.”

So a reduced charge of manslaughter still isn’t sufficient for the prosecution to reach its comfort zone, and it’s digging even deeper for an even lesser charge of murder 3º.  Not only is that damning and humiliating, but as West says, it’s “outrageous.”  What’s next, trespassing because Zimmerman walked on somebody else’s lawn?

It appears that while the judge hasn’t tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.

For the defense, given the evidence that’s come in, this isn’t a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.

While this isn’t the way it’s supposed to go in theory, it’s a nightmare for the defense, having fought the charge only to face being skewered by a compromise.


15 thoughts on “All Zimmerman or All Trayvon Martin

  1. Scott Brownstein

    I think that many see this a a political show. cooler heads had prevailed before the White House and others stepped into it. While it is interesting that the jury is sequestered and cannot hear all of the sword rattling from Martin advocates, the Judge can. By allowing the “compromise” charge of manslaughter, she is protecting her house!
    Hopefully the jury will refuse to oblige. Was it self defense…or not? Simple question…single answer to either charge.
    The question I have is what the general consensus is about the Judge committing reversible error if the jury compromises.

  2. cubanbob

    The State charges Zimmerman with 2nd degree murder and the defense prepares for that charge only to have another charge they were not allowed to prepare for sprung at the last minute. As a layman the only conclusion I derive is that the State has decided it lost the 2nd degree murder charge and has now decided to get a second bite of the apple with either a felony murder charge or a manslaughter charge. As Mr. Brownstein noted above either Zimmerman acted in self-defense or not, no matter the charge. I suspect that even if Zimmerman is acquitted the DoJ will find some federal charge to prosecute him. Another possibility, this being Florida, the jury despite being sequestered has knowledge of the racially charged atmosphere of this case and may convict out fear of personal retaliation if they acquit or if they acquit the verdict would be used to incite racial disturbances. It’s not for nothing the police departments in various parts of the state have all of a sudden started riot drills.

  3. SHG

    It’s not that the defense couldn’t have prepared for a lesser-included; they must have known it was possible, if not likely, that the prosecution would go for it.  But it’s very difficult to effectively defend again one charge without appearing to concede the other, so they focus on the top count, as that’s the primary charge, and leave their flank exposes on the lesser.

    The problem with the “self-defense or not” argument is that a jury could rationally find an imperfect self-defense, meaning that he may lacked the “ill will” intend necessary for murder 2, but that his fear of harm from Martin was excessive and unreasonable. From the defense perspective, it’s the state’s burden to prove every element of murder 2, and if they fail to prove the requisite intent, he walks. Or the jury fudges the intent because they don’t feel he’s sufficiently right in his self-defense position, and convicts him of murder for lack of a lesser.

    It’s a very convoluted argument all around. Yet another reason why jury trials are sausage factories.

  4. Turk

    I haven’t watched a single bit of the trial, therefore qualifying me to render a prediction on the Internet:

    Guilty of manslaughter, since he started the problem by chasing a kid at night and putting him in fear for his life. Not guilty of murder.

    I also have zero knowledge of Florida criminal law and sentencing, therefore likewise qualifying me to predict the sentence for the crimes he has not yet been convicted of: 2-4 years.

  5. Mondo

    Clicked through to your post on Steele and couldn’t help but notice that you criticized Freeman’s comments on overcharging allowing for a lesser included instruction and possible compromise verdict at trial as “having utterly nothing to do with the Zimmerman case”. Are we due for a rare SJ retraction?

  6. SHG

    Not even close. What Freeman wrote was a generic, simplistic, borderline idiotic, comment that bore no connection with either Zimmerman or the post Steele wrote. It was just a loony comment from a very old man whose lost enough off his fastball that it now barely rolls off the mound.  I would tell you what Steele told me about it, but it’s not my place to speak out of school.

  7. BL1Y

    My criminal law class largely consisted of a professor randomly shouting words and climbing on desks trying desperately to recover from some long-dashed dream of being a Shakespearean actor, so forgive me if I’m a bit ignorant about the inner workings of criminal law.

    How is introducing the voluntary manslaughter charge so late into the process not a violation of the Sixth Amendment?

    “In all criminal prosecutions, the accused shall enjoy the right […] to be informed of the nature and cause of the accusation […]”

    I can understand the argument for allowing lesser included offenses, the defense knew all the elements that the state was going to attempt to prove and had the chance to knock each one down as best it could. But, voluntary manslaughter isn’t a lesser included — it has a completely different mens rea.

    I may just be a simple country Cheeto connoisseur, but it doesn’t quite seem fair to me to convict someone of a charge he hasn’t been given a chance to defend against.

  8. SHG

    In the hierarchical scheme of law, lesser included offenses have no elements that aren’t otherwise included in the greater offense. As for mens rea, it’s got its own hierarchical scheme, from strict liability to intentional, each more stringent as to the requirement of proof of the defendant (at least theoretically) than the one before it.

    Think it sucks? Yeah, well, whatever. That’s how it is.

  9. BL1Y

    It doesn’t just suck, it’s also plainly a misunderstanding of the relationship between intentionally doing something and negligently doing something, not to mention the huge issue of what parts of the story are relevant to the different mentes reae.

    This is exactly the type of thing that causes me to tell 0Ls who “love the law” that the last thing they should do is become a lawyer.

  10. SHG

    Yes, the mental states (or lack of mental state at all, as the case may be) should preclude a lesser if it’s distinguished by the mens rea. It would make for a good argument on appeal. At least the judges will enjoy it.

  11. Scott Brownstein

    Based on what I have read here, it seems that the prosecution could not possibly have presented a case that claims that Zimmerman intentionally murdered Martin and simultaneously present a case that Zimmerman killed Martin as a result of some other action, but without direct intent. In fact, it even seems to me that the defense effectively stipulated that Zimmerman intentionally shot Martin in order to defend himself. I agree with the defense when they mentioned “tricks.” Seems Judge Nelson has failed miserably…again!

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