On Wednesday charges against George Zimmerman for the shooting death of Trayvon Martin were filed in Florida and he was taken into custody.

This is a look forward to the issues that are likely to appear at Zimmerman’s trial or be raised in pre-trial proceedings.

The Affidavit of Probable Cause filed in conjunction with the charge of second degree murder has appeared in the media. That document states that Zimmerman initiated the confrontation with Trayvon that eventually led to him using his gun.

Second degree murder cases often involve a death that allegedly occurred because of a heat of passion or act that was so dangerous is warrants a criminal action be brought against the Defendant. The classic example is the spouse who finds their partner having an affair with another person and immediately acts to kill either the partner or the partner’s lover. In order to convict a defendant in Florida of Second-degree murder, the State of Florida must prove the following three elements beyond a reasonable doubt:

  1. The victim is dead;
  2. The death was caused by the criminal act of the defendant;
  3. There was an unlawful killing of the victim by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

Understanding a second degree murder can be more confusing than the more serious first degree murder. The “criminal act” reference in the statute must be a single event or series of related actions arising from and performed pursuant to a single design or purpose of committing the murder or creating the dangerous condition that led to the death. Although second-degree murder can carry a potential incarceration of up to life in prison, the death penalty cannot be imposed on a person found guilty of second-degree murder.

Whether a Defendant’s actions could have been reasonably foreseen as endangering a human life to the point of warranting a prosecution is a question for the jury…

Unlike in a first degree or felony murder prosecution, a grand jury does not need to indict the defendant before a prosecution may begin. Second degree murders often are decided on the “common sense” of the jury. Whether a person’s actions amount to the requisite intent or recklessness to warrant conviction is often left up to the jury’s determination.

The defense of a second degree murder often comes from a defense’s argument that the death was justified, excusable, or was self-defense.

There is also what is called a “lesser included offense” as an alternative to second degree murder.

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree…

For instance the prosecution may not be able to prove Zimmerman had the “depraved mind” as an element necessary to convict of second degree murder but the evidence will demonstrate that George was culpably negligent with no justification for using deadly force.

This is how the defense of self-defense is defined under Florida law.

776.012 Use of force in defense of person.–A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other’s imminent use of unlawful force. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

That definition is the traditional one used in court. However, Florida also has what is known as a “Stand Your Ground Law” which appears to give more leeway to a person to act with deadly force. That is because under traditional law, a person was generally required to flee a potential deadly situation if a means of retreat were available.

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Note the elements of availing oneself of that defense. The person must “not be engaged in unlawful activity” himself and is “attacked in any other place he…has a right to be”.

Consider these widely reported “facts”

Zimmerman saw Trayvon (returning from a trip to the 711) and deemed him “suspicious”.

Zimmerman called 911 and reported this and that he was following Trayvon to continue his observation.

The 911 operator informed Zimmerman that he was NOT to continue to follow the “suspect”.

The eventual confrontation and shooting, no matter who initiated it, took place on private property.

Zimmerman, through others, has claimed that Trayvon attacked him.

I would submit that, since the incident culminated on private property, George Zimmerman cannot use the “Stand Your Ground” law in his defense as he was not attacked…if at all… in a place where he had a right to be.

That law is designed, I believe, to allow a person who is in a public place to use the force necessary to resist an attacker. If it occurs on private property and the defendant was not invited onto that property, then he is a mere trespasser himself.

The complete set of facts that a jury or judge will have to rely on to determine whether  George Zimmerman’s killing of Trayvon Martin will be excused under either the “Stand Your Ground” statute or the more traditional and also statutory definition of self-defense will be determined by the documents and witnesses and other evidence properly placed before the court.

One obstacle for the prosecution will be that there may not be sufficient evidence to refute Zimmerman’s allegation, if he testifies and is believed, that Trayvon actually attacked him and that he then became genuinely fearful for his own life.

I would caution, though I myself believe the prosecution should result in a conviction, that such an outcome is not foreordained. Likewise, those who believe Zimmerman was justified in using his gun may be disappointed in the verdict.

I and other commentators have criticized the Sanford, Florida police for what was a lousy and decidedly unthorough and amateurish initial investigation. If that is true, it may well be a significant factor in what evidence the prosecution, and even the defense, is able to present in court.

If either a wrongful acquittal or a wrongful conviction arises from this poor investigation, the shame on the Sanford police department should be enormous.

I also caution against judging this case solely on racial terms. The alleged racial prejudice of Zimmerman has not been proven or yet shown, if it did exist, that it was the sole or at least main motivator for his actions.

On the other hand, the history in this country and in Florida and apparently in Sanford, Florida of both too many killings of young black men being deemed “justified” as well as the indifference of law enforcement to many murders of black people is very difficult to ignore.

There is one thing that cannot be changed. Trayvon Martin, a seventeen year old hovering on the divide between childhood and adulthood, is dead and buried and his family and friends will mourn him forever. Whatever the verdict, George Zimmerman still lives.

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