Mike Kueber's Blog

April 13, 2012

Did the special prosecutor over-charge George Zimmerman?

A former co-worker at USAA, Becky Abel, recently commented in response to my posting about George Zimmerman’s arrest and the fact that many people seemed to think an arrest was justified, pending an investigation, because a young man will killed.  She suggested that most people who disagreed with the result of the initial investigation by local authorities don’t understand that the proper appeal is to demand a special prosecutor, not to demand an arrest.  That makes sense.

In her comment, Becky asked me whether I thought the special prosecutor over-charged Zimmerman and suggested that the Florida jury charge might be relevant to answer her question.  Instead of simply responding to Becky’s question about over-charging, I decided to look up the jury charge and then provide a full response in a separate blog posting.  Here it is:

  • According to the legal pundits, there is almost no downside to over-charging because the prosecutor can always decide to focus on the lesser-included crime of manslaughter.  We won’t know until trial whether this prosecutor was too politically motivated.  Of course, a judge could throw out the case at the probable-cause hearing.  I wonder how the media would react to that.
  • Under the Florida law:
    • Second degree murder occurs when a person is killed, without any premeditated design, by an act imminently dangerous to another and evincing a depraved mind showing no regard for human life. 
    • Manslaughter means (a) committing an act that was neither excusable, nor justified that resulted in the death of another person; (b) persuading, inducing, or encouraging another person to commit an act that resulted in the death of another person; or (c) engaging in “culpably negligent” conduct that resulted in the death of another person.  

The key to a conviction for second-degree murder is proving beyond reasonable doubt that Zimmerman committed an act that:

  1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another,
  2. Is done from ill will, hatred, spite, or an evil intent, and
  3. Is of such a nature that the act itself indicates an indifference to human life.

Based on this requirement and what I have heard about the evidence, I am not confident that the special prosecutor will be able to show probable cause for second-degree murder, let alone prove it beyond reasonable doubt.  But perhaps the special prosecutor has additional incriminating evidence that we don’t know about yet. 

We will see.

The prescribed jury charges for second-degree murder and manslaughter are as follows:    

7.4 MURDER—SECOND DEGREE

§ 782.04(2), Fla.Stat.

            To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:

1.         (Victim) is dead.

2.         The death was caused by the criminal act of (defendant).

3.         There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

            Definitions.

            An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

            An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

1.         a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2.         is done from ill will, hatred, spite, or an evil intent, and

3.         is of such a nature that the act itself indicates an indifference to human life.

            In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

7.7 MANSLAUGHTER

§ 782.07, Fla. Stat.

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:

            1.         (Victim) is dead.

            Give 2a, 2b, or 2c depending upon allegations and proof.

2.         a.         (Defendant) intentionally committed an act or acts that

                        caused the death of (victim).

            b.         (Defendant) intentionally procured an act that caused

                                    the death of (victim).

c.         The death of (victim) was caused by the culpable negligence of (defendant).

The defendant cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide.

Negligence:

Each of us has a duty to act reasonably toward others.  If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.

Justifiable Homicide:

The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing.  § 782.02, Fla. Stat.

Excusable Homicide:

          The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:

1.         When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or

2.         When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or

3.         When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.

§ 782.03, Fla. Stat.

Give only if 2a alleged and proved.

In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death. 

Give only if 2b alleged and proved.

To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Give only if 2c alleged and proved.

I will now define “culpable negligence” for you.  Each of us has a duty to act reasonably toward others.  If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.  But culpable negligence is more than a failure to use ordinary care toward others.  In order for negligence to be culpable, it must be gross and flagrant.  Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others.  Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

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1 Comment »

  1. […] decided that there was sufficient evidence to charge Zimmerman with Second Degree Murder.  When I blogged about whether that charge was appropriate, I suggested that we should give the prosecutor the […]

    Pingback by The (un)biased media « Mike Kueber's Blog — May 18, 2012 @ 3:16 am | Reply


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