Can the State Prove Zimmerman's Ill-Will, Hatred, Spite and Evil Intent:?
I'm still trying to figure out why the state's attorney in Florida would charge George Zimmerman with second degree murder in the shooting death of Trayvon Martin, and approve the filing of such an empty affidavit for an arrest warrant, that with all its other faults, fails to even refer to, let alone establish, the elements of the charged crime.
Where is their evidence that Zimmerman's act of shooting Trayvon demonstrated a depraved mind and was an act "done from ill will, hatred, spite, or an evil intent," indicative of an indifference to human life, as required for a second degree murder conviction? What is their theory?
Here's my theory: Every Affidavit Tells a Story. When examining an affidavit, the choice of words, the sequence of events and the facts omitted are all key to something. The story may not be the truth, but it represents the state's version of what it believes to be the truth. Affidavits are intended to tell the story in such a way that the reader will conclude it is both accurate and makes sense. They can also be a road map showing how the state intends to prove its case.
After reading the affidavit for George Zimmerman's arrest at least 10 times, each time more perplexed than I was here by the lack of probable cause for a second degree murder charge and its other shortcomings, I decided to focus instead on the state's story. (If this isn't it, then I'm out of guesses and there is just no excuse for the heavy-handed charging.) [More...]
In a nutshell, here's the state's story: Zimmerman improperly profiled Trayvon as a criminal, reporting him to police as a suspicious person for no objective reason. Zimmerman referred to criminals who commit home invasions, and to Trayvon (by erroneously assuming Trayvon might be about to commit a home invasion) as "as*holes" and "f*cking punks." Zimmerman's use of those words in reference to criminals and Trayvon is evidence of his ill-will and hatred, and of his depraved mind, in the act of shooting and killing Trayvon during the course of a later struggle.
Notice that race does not factor into the state's story at all. Here's how you can tell. Read the affidavit, looking not for probable cause or legal sufficiency, but for the state's story. Ignore, for the moment,
- the false statements about what the dispatcher told Zimmerman,
- the failure to mention any evidence from the police reports, videos and witness statements casting doubt on Zimmerman's guilt or supporting his version of events, including conflicting witness statements, Zimmerman's spontaneous assertion at the scene he had cried out for help, images of his injuries, and his lawful possession of the firearm,
- the failure to state who initiated the physical struggle,
- the reliance solely on Trayvon's mother to conclude it was Trayvon who cried out for help
- the emphasis on the hearsay statements in the account of Trayvon's phone friend, who was not there and witnessed nothing, and on her subjective impression of what must have happened based on the hearsay.
None of that is important to the state's story. The key to the story is what's left: the use of the word "profiling," with no reference in the affidavit to anyone's race, the disavowal of Zimmerman's use of a racial slur by asserting that he used the phrase "f*cking punks" and most importantly, the allegation that Zimmerman was talking about Trayvon when he used the words "as*sholes" and "f*cking punks."
The state is not going to allege Zimmerman targeted Trayvon because of race. It believes it will be sufficient to show Zimmerman targeted (i.e. profiled) Trayvon as a criminal. The state believes there is no need to show Zimmerman had a racial bias, if it can show he disliked and had a bias against criminals and he thought Trayvon was a criminal.
Here's the story, as told by the affidavit (underlining and bolding by me.)
Zimmerman, who also lived in the gated community, and was driving his vehicle observed Martin and assumed Martin was a criminal. Zimmerman felt Martin did not belong in the gated community and called the police. Zimmerman spoke to the dispatcher and asked for an officer to respond because Zimmerman perceived that Martin was acting suspicious.
....During the recorded call Zimmerman made reference to people he felt had committed and gotten away with break-ins in his neighborhood. Later while talking about Martin, Zimmerman stated "these a*sholes, they always get away" and also said "these f*cking punks".
....Martin attempted to run home but was followed by Zimmerman who didn't want the person he falsely assumed was going to commit a crime to get away before the police arrived.
I don't think this story will carry the day for the State. It doesn't prove Zimmerman was an aggressor in the physical fight. It doesn't disprove that Trayvon attacked Zimmerman first, breaking his nose and causing cuts to his head. It doesn't prove that this was anything but an unexpected encounter that got out of hand.
There is abundant case law in Florida that an impulsive overreaction to an attack or injury is insufficient to prove ill will, hatred, spite, or evil intent. Even extremely reckless behavior, by itself, is insufficient from which to infer any malice.
And, while exceptions exist, second-degree murder usually applies when the defendant and victim knew each other prior to the killing, allowing time for enmity to develop. As many Florida decisions have held, "Hatred, spite, evil intent, or ill will usually require more than an instant to develop."
The exceptions I have read in Florida case law, including as recently as decisions last month, finding enmity and ill- will when the defendant and victim were strangers, involve situations such as a defendant who claimed to be on a suicide mission and decided to make headlines by driving into a crowd of strangers, intending to kill them as well as himself. Or where the defendant drove his car down a sidewalk at a high rate of speed killing a child, and then drove down a second sidewalk striking and killing another child.
Given that Trayvon and Zimmerman were strangers, if the state's argument for finding enmity and ill-will is that Zimmerman's hatred of criminals extended to Trayvon because he assumed Trayvon was a criminal, I don't think it will prevail. It seems to be just a story, intended to cover the gap in the intent requirement between murder 2 and manslaughter, in a way that that avoids the topic of race. Since it neither proves Zimmerman was the aggressor nor disproves he acted in self-defense or had a reasonable fear of death or serious bodily harm, the state's story may be insufficient to establish either offense.
No wonder Angela Corey wanted to bypass the grand jury. She only had 1/2 a ham sandwich and forgot the mustard.
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