The charged crime is second degree murder. The following excerpt is not a complete list of all the possible ways to reach second degree murder in Florida, but it is the section Corey uses in making her charge against Zimmerman.
F.S. 782.04 Murder. --
(2) The unlawful killing of a human being, when perpetrated by any 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, is murder in the second degree ...
Quick sidetrack, I think the charging document does not recite facts to support the element of depraved mind. A person is required to infer too much, in order to conclude that.
Back to the charging document. Rule 3.140 in Florida Rules of Criminal Procedure defines the requirements for the charging document, be it an information or indictment.
Florida Rules of Criminal Procedure 3.140 - Indictments, Informations
3.140(d)The Charge.
(1) Allegation of Facts; Citation of Law Violated. Each count of an indictment or information on which the defendant is to be tried shall allege the essential facts constituting the offense charged. In addition, each count shall recite the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.(k) Form of Certain Allegations. Allegations concerning the following items may be alleged as indicated below:
(4) Exceptions; Excuses; Provisos. Statutory exceptions, excuses, or provisos relative to offenses created or defined by statute need not be negatived by allegation.
It's that last part, Rule 3.140(k)(4), that allows Corey to omit the exculpatory information. The information and affidavit have to cover all the elements of murder, 782.04; but the indictment does not have to "negative" or "disprove" Zimmerman's claim to self defense under a separate statute, 776.032. The statutory exception of self defense defined by Florida statute 776.032, need not be negatived by an allegation of murder under 782.04.
The right to self defense, and immunity from government harassment for justified use of force in self defense, are not elements of murder. The murder statute does not point back to Chapter 776, Justifiable Use of Force, with a recitation like "unless the killing was justified under chapter 776." Corey doesn't have to refer to Chapter 776 (which is where Zimmerman's defense lies) in an information alleging murder to 782.04.
All that said, Corey's charge is unethical. The fact that it conforms to the "form" of legal process in Florida does not save her bacon.
Affidavit claimed as fact “Zimmerman confronted Martin” when the lead detective stated under oath there was no evidence regarding who confronted who before “the struggle ensured”.
If the charge can be successfully defended by use of the excluded evidence - then it is exculpatory, plainly enough for every ditch-digger to see. That someone is making a legal argument otherwise screams out one of the big problems with our legal system - much like questioning the meaning of “is”.
She brought an indictment that excluded clear evidence refuting the charge (I don't give a rat's, what number does or doesn't “point” to another number - if it was self defense, he rightly goes free; which in plain english means she hid evidence from the judge in her indictment.)
Which is the greater breach (as Dershowitz points out the hypocrisy) Z not telling how much was in the Pay Pal account, though his wife offered to get accurate information and was declined by the judge; or this #$%^*$ not presenting clear evidence that implies a different story than she was telling?
Thanks for the clarification.
The statute’s statement that self defense need not be “negatived” is not the same as ignoring exculpatory evidence when bringing the charge. The state doesn’t have to say “and it wasn’t self defense, for the following reasons....” However, she knew of Zimmerman’s injuries, eyewitness accounts, etc., yet she brought the strongest charge possible.
Dershowitz’s argument is the charging affidavit explains to the judge why the charge is justified. Dershowitz really is saying the prosecutor overcharged and “covered up” significant evidence of that by leaving out Zimmerman’s injuries.
It’s very iffy to say the affidavit was unethical. More to the point, bringing the charge may have been unethical. I say may have, because she’s not the first prosecutor to over charge a crime.
The prosecutor is not a friend of either the defendant or ultimate truth. I do think this is a case of politically motivated charges by a prosecutor who surely realizes Z did not commit 2nd degree murder.
Dershowitz, otoh, is a self promoter who loves to claim other lawyers don’t know what they are doing. He’s also a defense attorney.
The key here will be Z’s allegedly contradictory statements to police. That’s her main evidence, and it wasn’t detailed in the affidavit, either.
Takeaway lessons are the police and prosecutor are not your friend, don’t talk to them and get a good lawyer.