All Zimmerman or All Trayvon Martin

Many criminal defense lawyers studiously ignore cases that catch the public's attention. They just aren't that legally interesting, even if the facts or issues give rise to popular passion. And so it's been for the trial of George Zimmerman for murder 2º in the killing of Trayvon Martin.  Aside from John Steele's having raised the question of the ethics of overcharging, there hasn't been a whole lot to write about.

Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter. 

As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.

George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?

The short answer: the judge said they could.

Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.

Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it.  So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise.  That's not happening here.

While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.

Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.

There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.

In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary  manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”

That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out. 

As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.

But most damning is the prosecution's second request of Judge Debra Nelson.

Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.

But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.

"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."

So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º.  Not only is that damning and humiliating, but as West says, it's "outrageous."  What's next, trespassing because Zimmerman walked on somebody else's lawn?

It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.

For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something. 

While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.

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