George Zimmerman has been charged with 2nd degree murder in the killing of Trayvon Martin. A 2nd degree murder charge, in this case, states that the government must have probable cause – a reasonably cautious person would suspect that a crime had been committed – and that probable cause must be shown in an affidavit and approved by a judge.
2nd degree murder, in Florida and specifically relating to this case, is:
§ 782.04(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 and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
As you can see, a 2nd degree murder charge, in this case, requires probable cause that the defendant carried out the killing with a depraved mind. So, just what is a “depraved mind”? Fortunately, the Florida Supreme Court provides jury instructions that further define “depraved mind”. These instructions require three elements be fulfilled and all of them must be:
An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:
- a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
- is done from ill will, hatred, spite, or an evil intent, and
- is of such a nature that the act itself indicates an indifference to human life.
The first element is not in dispute. Mr. Zimmerman is asserting an affirmative defense, so the first element has been admitted to.
Skipping to the third element, this one can be seen as possible to a reasonably cautious person, if they are given only one side of the story. The state, in its probable cause affidavit, states that “witnesses heard numerous calls for help” and that the calls for help were determined to be Mr. Martin by his mother, Sybrina Fulton, upon hearing a separate 911 call placed by one of the residents in the complex. I’ll get into this issue a little bit later. Suffice to say, given only that information, the third element appears to have been met, since the state is arguing that Zimmerman killed Martin amid Martin’s pleas for help.
Now, we get to the second element, which is, arguably, the most important one. The second element requires that the act be “done from ill will, hatred, spite, or an evil intent.” This element is also up for debate and it also depends on the information given. This is very important, specifically, because of Zimmerman’s claim of self-defense. In the probable cause affidavit, the state has used Zimmerman’s non-emergency call to provide the basis for the second element being satisfied. In it, Zimmerman refers to the person he saw, Martin, as an “asshole” and “fucking [punk?],” even if it was a general, not specifically directed, accusation, and it also states that Zimmerman “profiled” Martin. The implication with the word “profiled” is that there was a racial motivation to Zimmerman’s subsequent actions.
With just that information, the state has satisfied probable cause for 2nd degree murder. But, that’s not the whole story and the state is required to provide the truth as the facts present it to be. To omit certain facts because they may change the narrative the state would like the public, in general, and the Judge, specifically, to see is, as renowned lawyer and Felix Frankfurter Professor of Law at Harvard Law School, Alan Dershowitz, noted, “a half truth” and “a half truth is regarded by the law as a lie.”
With regard to the third element, the state failed to include the fact that Zimmerman had sustained several injuries in an apparent beating by Martin. It also omitted the fact that Zimmerman’s father stated that the cries for help were, in his opinion, his son, George Zimmerman, creating a he said/she said scenario to that particular aspect. In fact, several voice analyses have been conducted including, most notably, one by the FBI. The FBI determined that they couldn’t conclusively say who was crying for help “due to extreme stress and unsuitable audio quality.” This additional information, had it been presented to the Judge, would have allowed the Judge to make a more informed decision.
Going back to the second element, the state, as mentioned before, should have included the injuries sustained by Zimmerman in it’s affidavit. In addition to that, the state also omitted the medical examiner’s report of Martin. It would have shown that there were injuries to Martin’s knuckles, but no other injuries, other than the gunshot, which was a close-range shot to the chest and consistent with Martin being on top of Zimmerman when the shot was fired. Taken together, these two medical reports show that a struggle did ensue, as the state offered in the affidavit, but that there is a strong probability that Martin was the first to start a physical altercation. In recent developments, in fact, the state has admitted, in the most recent bond hearing, that it does believe Martin did hit Zimmerman first, but it still classifies Zimmerman as the aggressor for getting out of his vehicle, following Martin, and not offering to Martin a valid reason for why he was following him. I’ll get to that in a second. With these additional details, it appears that, while it may be argued that Zimmerman may have “hated” Martin in some general sense, the act of shooting him was in response to a physical altercation that the state admits was now started by Martin. The last nail in the coffin of the second element was the recent revelation that the FBI’s investigation into racial bias and/or a possible hate crime could find no grounding or factual basis for such an allegation.
Lastly, it is the state’s contention, probably because of Fmr. Det. Christopher Serino’s opinion, that Zimmerman should be charged with 2nd degree murder because the killing was “ultimately avoidable”. Serino stated that if Zimmerman had simply “remained in his vehicle” or “identified himself to Martin as a concerned citizen” that the incident would have likely never occurred. While this is true, it can be said of any action, including Martin’s decision to go to the store. There is literally no limit to the amount of actions or the people involved in these actions, if you don’t limit yourself on time, that ultimately led to Zimmerman and Martin meeting. For instance, if the 7-11 clerk had struck up a lengthy conversation with Martin, this incident would have likely never occurred. In addition to that, and more importantly, the state’s argument that Zimmerman should be held accountable for not saying the right thing, goes against everything our liberty provides for us. Our liberty allows for us to have control over our own actions, so long as they don’t encroach on another person’s liberty. If they do, then the law can intervene. It does not require one to make specific statements of intent in some distorted belief that a lack of any given intent is tantamount to a given threat. The fact that the state and this police officer do not know this, is incredibly disturbing.