l****z
发帖数: 29846 | 1 by Andrew C. McCarthy
June 30th, 2013 - 10:13 am
The state of Florida’s politically driven decision to charge George
Zimmerman with murder has resulted, as some of us predicted it would, in a
pathetically weak case. It has taken only a few days of trial to collapse of
its own weightlessness – undone, in fact, by the direct testimony of a
prosecution witness, as Bryan Preston relates at the Tatler and Ed Morrissey
details at Hot Air.
Over a year ago, I explained why this would happen:
When Trayvon Martin was first shot to death nearly two months ago [on
February 26, 2012], state authorities sensibly opted not to charge George
Zimmerman with murder. It wasn’t that they were looking to excuse
wrongdoing. It was that the evidence was insufficient to prove murder beyond
a reasonable doubt.
Plainly, there was a lack of criminal intent: There was obviously no
premeditation; and, alternatively, the facts do not remotely suggest that
Zimmerman acted with a “depraved mind regardless of human life” (e.g., the
savage indifference of a man who fires into a crowd, heedless of the
consequences). To the contrary, the known facts indicate (a) Zimmerman’s
concern that Martin was acting suspiciously (the depraved do not call the
police, as Zimmerman did, before shooting), and (b) a struggle in which
Zimmerman may well have been severely beaten and, in any event, would have a
strong basis to persuade a jury that he shot in self-defense.
In advancing that argument, Zimmerman would be aided by Florida’s “
Stand Your Ground” law, which gives the law-abiding latitude to use guns
for protection….
The “Stand Your Ground” point was gravy as far as the baseless murder
charge was concerned. If a prosecutor cannot prove the statutorily required
intent element (mens rea) for murder, then the accused’s conduct cannot
amount to murder, period. The accused only needs to rely on a legal defense
of his conduct (such as self-defense) if the prosecution’s proof is
sufficient to establish the offense (here, murder) in the first place. But
“Stand Your Ground” would have been very relevant had Zimmerman been
formally accused of an offense less serious than murder. Regarding that, as
I observed when Zimmerman was initially charged:
Florida law makes causing the death of a person under the age of 18
manslaughter, provided there has been “culpable negligence.” It also
criminalizes as manslaughter the “unnecessary killing” of a person in
order to resist or prevent that person’s violation of law (e.g., the use of
lethal force to repel a clearly non-lethal threat). Neither of these
charges would [be] a slam-dunk; indeed, they’d be losers if Zimmerman shot
because he was justifiably in fear of his life.
Despite the palpable lack of evidence that Zimmerman had the required intent
to commit murder, the state bowed to pressure from the racial grievance
industry (led by Huckster-in-Chief Al Sharpton), shamefully aided and
abetted by the most politicized, race-obsessed Justice Department in
American history. Lest we forget, it was Attorney General Eric Holder’s
collaboration with Sharpton and threat to trump up a federal civil rights
prosecution that induced state officials in Florida to reconsider the
initial decision not to charge Zimmerman.
It’s easy for a corrupt process to produce criminal charges. It is quite
something else to prove them. To try to fill the gaping intent hole in its
case, the Zimmerman prosecution has transferred the hobgoblin of racism from
the headlines into the courtroom. Indeed, it did not even wait for the
trial to do that; the prosecutor injected racism directly into the charging
documents.
As I noted at the time, the affidavit in “support” of the murder charge
employed the explosive term “profiling” to describe Zimmerman’s suspicion
of Martin. That word has no place in a charging instrument: It was
transparent code to imply, in the absence of any evidence, that Zimmerman is
a bigot who assumed Martin was up to no good just because he was black.
“Profiling” is an ambiguous term. Generally speaking, it is a perfectly
appropriate, commonsense practice – a marshaling of various characteristics
and behaviors typically found in kinds of criminal conduct. It is routinely
used by police to avoid hassling innocent people. Like all sound police
practices, it can be abused – a bad cop can invidiously home in on one
characteristic (like race, religious belief, political stance) and
groundlessly associate it with criminality. The latter is rare, but it is
unfortunately what the racial grievance industry, echoed by the media, has
conditioned the public to think of when the term “profiling” is used. It
is this slanderous connotation of “profiling” that the prosecution wants
people (especially juror-people) to associate with Zimmerman. Rather than as
a legal term, the charging documents use “profiling” as an atmospheric –
since prosecutors had neither the evidence to prove racism nor the courage
to be forthright about what they were doing.
It would be bad enough to do this in a case where attitudes about race were
pertinent – say, a prosecution for violating someone’s civil rights. But
it is even more shameful to do it in a case where attitudes about race are
legally irrelevant. However much the media may be fascinated by racial
dynamics, racism or the lack of it should have no bearing on a prosecution
for what the law calls “depraved indifference” murder (second-degree
murder in Florida).
Apropos of that, Powerline’s John Hinderaker has had an interesting
exchange with Legal Insurrection’s Andrew Branca. Putting aside the lack of
evidence that Zimmerman is a racist, John forcefully argues that, in the
context of this homicide prosecution, his purported racism is “utterly
beside the point.” The crux of the case, instead, is a simple matter of
whether Zimmerman’s admitted shooting of Martin was in legitimate self-
defense. Mr. Branca counters that the prosecution is using racism (or at
least the specter of racism) to substitute for its dearth of evidence on the
required mental element – namely, that Zimmerman acted with a “depraved
mind.”
Mr. Branca is quite right that this is what the prosecution is trying to
pull. He goes off the rails, though, in suggesting that this is a viable
theory. With due respect, I think his explanation of the statutory term “
depraved mind” is wrong. In part, he is conflating two separate mens rea
concepts that arise in murder cases: depravity and premeditation.
After correctly observing that “Murder involves premeditation to kill or,
in Florida, a ‘depraved mind’,” Mr. Branca elaborates (italics are mine):
In order to prove the second degree murder charge the State brought
against Zimmerman they must prove beyond a reasonable doubt that he acted
with a depraved mind. To get to a depraved mind they need to show some kind
of hatred or ill-will. In most murder 2 cases the people know each other and
have a long history of animus, which is the source of the “depraved mind”
. Here Martin and Zimmerman did not know each other, so the State is forced
to pursue some more generalized hatred – such as racism.
I disagree. Generalized hatred has nothing to do with “depraved mind”
murder. In such cases, we are not talking about intent driven by an attitude
specifically related to the victim, triggered by long-held animus. We are
talking, instead, about something almost diametrically opposite: a perverse
lack of regard for human life – not the victim’s human life but all human
life.
Explaining this concept (with reference to New York state law) in the 2012
case of Gutierrez v. Smith, the Second Circuit U.S. Court of Appeals
instructs (my italics):
The archetypal depraved indifference murder … would resemble “shooting
into a crowd, placing a time bomb in a public place, or opening the door of
the lions’ cage in the zoo.” By contrast, … a one-on-one shooting or
knifing (or similar killing) can almost never qualify as depraved
indifference murder.”
Zimmerman’s killing of Martin is a one-on-one shooting. Now, to be sure,
the court did not say that one-on-one killings can never qualify as “
depraved indifference” murders. But it is exceedingly rare. When it does
occur, the focus is not on the subjective intent of the killer but the
objective recklessness of the killing – e.g., a mother who beats her infant
to death (uncommon brutality combined with a particularly vulnerable victim
), or perhaps a game of Russian Roulette (or “Polish roulette” as it was
called in a 1989 New York case – People v. Roe – in which the accused
loaded a gun with both real and dummy bullets, pointed the gun at the victim
, and callously fired).
With due respect to Mr. Branca, when the murderer knows his victim and there
is a long history of animus, we are usually talking about premeditated
murder. The animus tends to prove that the decision to kill was made before
the act that caused death. In Florida, that is first-degree murder, which is
not charged in the Zimmerman case.
Depraved mind murder, to the contrary, involves a state of mind evincing no
regard for human life. Far from a feeling of hatred or ill-will toward the
victim, what makes the killing depraved is the perverse lack of feeling for
the victim (i.e., there is no recognition of the victim’s humanity). Having
a motive is indicative of acting with deliberation, not recklessness or
indifference. In a depraved mind case, motive is superfluous because what
establishes the mens rea is the objective barbarity of the act itself, not
some fuzzy “generalized hatred” that may have been crawling around the
killer’s brain.
It is virtually inconceivable that a situation involving self-defense on the
killer’s part will fit a “depraved mind” charge. And I am not limiting
myself to situations when the self-defense claim is legally convincing. I am
saying that in any one-on-one scenario where self-defense is worth raising,
it is nigh inconceivable that a “depraved mind” murder has occurred. To
be more concrete, let’s say we are in a self-defense situation where the
claim is legally insufficient: for example, the use of lethal force was not
a proportionate response to the threat; or perhaps the killer provoked the
altercation that eventually led to his use of lethal force. In such
circumstances, we can reject the self-defense claim but still recognize that
the killing was not “depraved.” The degree of inhumanity required to make
a killing “depraved” is not going to be found in circumstances where a
person is defending himself, even if that defense is – as a matter of law
– excessive.
There is thus a chain of abuses that makes the Zimmerman prosecution a
disgrace. There is no evidence that Zimmerman is a racist. Racism cannot be
inferred from invocations of “profiling” – which tell us more about the
prosecutors than about Zimmerman. The imagined “profiling” cannot be
inflated into a “generalized hatred.” Even if there were a generalized
hatred, it cannot substitute for proof of the required mental element of
depraved indifference to human life – racism is a noxious attitude, but
there are people who are mildly racist; no one is mildly depraved.
It is abundantly clear that the murder of Trayvon Martin is not a case of
second-degree murder, a charge that carries a possible life sentence and a
minimum of 25 years’ imprisonment (because a firearm was used). Yet, the
special prosecutor brought the charge anyway. Plainly, she hoped Zimmerman
would be either railroaded in a trial that substituted incitement for proof,
or intimidated into pleading guilty to a lesser charge.
This case does not belong in a criminal court. That it has gotten this far
is a sad triumph of demagoguery over due process. | c******i
发帖数: 4091 | | k****k
发帖数: 3322 | 3 看来奥巴马的“SON”又要die in vain了 | b*******n
发帖数: 8420 | 4 http://www.mitbbs.com/article/Military/39869693_3.html
Rachel Jeantel, a nineteen-year-old rising high-school senior and
prosecution’s key witness, couldn’t read the letter she
supposedly wrote describing what she heard on the night in question.
自己说过的话，别人用装逼字体记录下来，就不认得了。而且是any of the words on
it都不认得。相信泥鸽猪，母猪能上树。 | j*****v
发帖数: 7717 | 5 wow, speechless. 能告她做伪证吗？
on
【在 b*******n 的大作中提到】
: http://www.mitbbs.com/article/Military/39869693_3.html
: Rachel Jeantel, a nineteen-year-old rising high-school senior and
: prosecution’s key witness, couldn’t read the letter she
: supposedly wrote describing what she heard on the night in question.
: 自己说过的话，别人用装逼字体记录下来，就不认得了。而且是any of the words on
: it都不认得。相信泥鸽猪，母猪能上树。
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