Former State Prosecutor here (25 years).
Much to the chagrin of a fair number of individuals (per the private mails I have gotten), I have maintained, and STILL maintain, that it was 100% appropriate to charge Zimmerman. I have also said, that a conviction is another thing. Not sure what your question is, but let me try and address the issue.
It seems that your question is the “depraved mind”. That is really a term of art and has nothing to do with insanity. Second Degree murder is murder minus the premeditation. The frequently used example is someone randomly firing guns in residences, or in the air, or shooting bottles in their window next to another house. There is no premeditation in any of those actions, but the act itself is so “depraved” that anyone of even basic intellect would know that would kill someone.
Next is the Voluntary v. Involuntary. Voluntary is the old “heat of passion” murder, i.e. you walk in on your spouse having sex with someone else and in a fit of rage kill one or both of them.
Involuntary is typically death via DWI (DUI) or reckless behavior such as speeding 65 in a 25 mph zone and hitting someone.
Now this case, if I were prosecuting, I would argue the following for each charge:
1. 2nd Degree - that by ignoring the police and chasing down someone, while armed, Zimmerman was extremely reckless to the point of “depravity. I would also suggest that any false statements I can prove (and there sure seem to be some) indicate that his version is not to be believed and that he chased down Martin with a “hair trigger” and was just begging for an opportunity to shoot.
2. Voluntary - Zimmerman reacted angrily and with excessive force. He was angry to the point of heat of passion because he thought the police were going to let yet another one get away. That when Martin confronted him, he unjustifiable shot him.
3. Involuntary - Zimmerman had no intention to shoot, but he was out there, in the dark chasing down someone. Zimmerman did not have police training, ignored police instructions, and that his extremely negligent behavior resulted in someone’s death.
There WILL be a hearing on “stand your ground”. Zimmerman has a VERY tough way to go with that one. Because he initiated the chase, he can not avail himself of self-defense. The only argument his atty can make is that he broke off the pursuit and that Martin jumped him. However, based on what I have seen (which is NOT all the evidence so there is a danger of trying via the press), Zimmerman has serious credibility issues. He’s got a 50-50 on winning this motion. Not at all sure of the law in FL, but in VA that would be a closed hearing with that evidence being kept confidential by the court.
Also, Voluntary and Involuntary are lesser included offenses of 2nd. If the Prosecution so requests, then the jury can find guilty of one of those lesser offenses instead of 2nd.
If for some reason they don’t ask for the lesser included instructions ,then, you are correct, double jeopardy prohibits re-trying for Voluntary or Involuntary.
Finally, the Fed charges (if any) are not lesser included so Double Jeopardy does not apply. However, I would be VERY surprised if there are Fed charges. I just don’t see hate crime evidence. I wouldn’t be shocked, but surprised.
Hope that helps a little.
But Stand Your Ground is tried how?
Preliminary hearing with only a preponderance of evidence required to show Zimmerman acted in self defense?
Two witnesses saw Martin on top of Zimmerman.
Isn’t that game over?
That is the exact argument he is making!
Based on the fact that he was physically attacked after he had returned to his truck, it is self-defense.
“Because he initiated the chase, he can not avail himself of self-defense.”
I gather you are not familiar with Florida law...
Zimmerman said he was returning to his truck. Can you prove he wasn't?
How did Zimmerman get the bloody nose?
How did he get the wet grass stains on his back?
How did he get the cut on the back of his head?
If he was sucker punched from the back and the “boy” was straddling him and pounding his head on the sidewalk do you contend Zimmerman should have asked nicely “Please get off me?”
I know that your prosecutor's’ hat means you are trying any way to charge him so he will ask for a plea deal, but why is that “Justice”.
Thank God you’re retired
From reading your analysis, it is clear that you really haven’t studied the reported facts.
So your analysis doesn’t carry much weight because you get so much of the facts wrong.
There is no evidence on which to claim probable cause that Zimmerman physically assaulted Martin. (Unless there is some sort of secret witness, but that is quite unlikely given the media attention.)
Shooting someone is not ipso facto a crime. It must be an unlawful shooting.
The affidavit does not even literally state that Zimmerman initiated the physical struggle. It just says that a struggle ensued, using the passive voice, which is laughable that they resorted to that language.
If the prosecution is not willing to allege that Zimmerman initiated the PHYSICAL aspect of the altercation, then they have no legal basis to charge him.
Because if Martin physically assaulted Zimmerman (rather than the reverse) as Zimmerman has stated, then Zimmerman has the right to defend himself, and the only question is the reasonableness of his belief as to death or bodily harm.
But you are right in one sense; there is no way the charges will be dismissed by reason of technical deficiencies in the information and supporting documents.
This will go to the preliminary trial before the judge on the self-defense claim and after a lengthy public hearing with all of the witnesses and physical evidence, the charges will be dismissed by the judge (which preliminary trial will be after the election.)
My disagreement is with your apparent assumption that there was a “chase.” Of all the things that may have happened in the 2 1/2 minutes between Zimmerman’s call and the fight, a “chase” is the least likely. The known timeline and locations - neither of which are dependent upon Zimmerman’s account - show that Martin was out of Zimmerman’s sight, and maybe 100 yards from his house two minutes before Zimmerman even hung up with police. If he had wanted to go home, he had more than enough time to do so, without even running.
If Zimmerman was “chasing” him for 2 1/2 minutes, I think the prosecutor will need to explain why they ended up no more than 250 feet from Zimmerman’s car.
It seems to me that Martin circling back to confront Zimmerman fits this timeline - at least within the parameters of reasonable doubt - far better than the chase you are suggesting.
And to be honest, having listened to the recording of Zimmerman’s call, I just didn’t get anger or vigilantism in his tone at all, and I’ll be interested to see whether it’s the prosecution or defense that seems most eager to play it in court.
You never answer a simple question. Let’s assume that Zimmerman used poor judgment in following Martin. Let’s assume the confrontation started with mutual argument (no evidence of this). Once Zimmerman was on the ground, with Martin pounding the snot out of him (much evidence of this) what was Zimmerman supposed to do? Was he supposed to wait until he was comatose or paralyzed as a proper punishment for his mistake. If Zimmerman is correct that he was walking back to his car when Martin sucker punched him, does that not represent self defense and end this discussion?
Now this case, if I were prosecuting, I would argue the following for each charge:
********************
Since you were a prosecutor, I understand why you would put forth your three arguments; because prosecutors lose their jobs if they can’t lie or significantly stretch the truth to get convictions. ........Before you get upset with me, I understand that you were probably just saying those three arguments are indicative of what a prosecutor might put forth before the court. All three should fail in this case if any on the jury can think rationally.
1. Zim didn’t talk to police and they did not order him to do or not do anything. He was only talking to a 911 operator who suggested “we don’t need you to do that” when Zim said he was going to follow the guy. He did not “chase down” the guy and, infact, told the operator that the guy ran away and he lost him.
2. Zim’s voice on the audio tapes seemed to be very calm and just was telling what was happening. He was not “angry to the point of passion”, as you would argue.
3. Zim did not ignore any “police instructions” because he had not received any. After saying he had lost the guy who seemed to be running toward the other entrance, he was walking back to his vehicle.
Also, the Stand Your Ground law isn’t in play here. Zim’s former attys. stated a couple of weeks ago that it didn’t apply because this was a simple matter of self-defense.
OK, I’m not a lawyer so maybe I’m missing something. Zimmerman claims Martin was on top of him bashing his head against the ground. That would indicate that retreat was not possible, making “Stand Your Ground” irrelevant. If that is true and the jury thinks a reasonable person in Zimmerman’s position would feel his life was in danger, then it’s self defense and GZ should be acquitted on all counts.
If the jury thinks a reasonable person would NOT think Zimmerman was at risk of death or serious injury, then it’s not self defense and murder 2 seems reasonable.
If Zimmerman is lying about Martin being on top of him, then the jury isn’t going to believe anything he says and he’s toast.
Does anything else really matter from a legal standpoint?
Looks like your involuntary is your strongest argument, yet still weak on known facts, Zimmerman’s lack of “police training”, for instance, O’Mara could let a first year associate handle the light lifting.
I don’t doubt your possible attack plans, it’s just the known evidence is on Zimmerman’s side.