By Andrew Branca

June 29, 2013

Hey folks,

As we all know by now, Zimmerman has been charged with second degree murder. In Florida second degree murder requires that the State prove, beyond a reasonable doubt, that Zimmerman possessed a “depraved mind” at the moment he killed Trayvon Martin.

For an explanation of Florida’s requirement of a “depraved mind,” click here:

Getting to Murder 2: Finding George Zimmerman’s “Depraved Mind”

Florida’s murder statute can be viewed here:

782.04 Murder

The jury instruction specifically for second degree murder can be viewed here:

FLJI 7.4 MURDER—SECOND DEGREE

As I discuss in that analysis, the prospects for the State being able to prove, beyond a reasonable doubt, a depraved mind is vanishingly small in this case. This prospect has only grown smaller as the State has continued to parade in its witnesses only to see their testimony favor the defense.

Bottom line, there’s no murder 2 here, and never has been.

As others have come to the same realization in recent days, however, I’ve been inundated with questions around whether if the state can’t prove murder 2, doesn’t that mean Zimmerman must be acquitted? Or can the State somehow “sneak in” manslaughter?

As it happens, there is no “sneaking” required by the State prosecutors on this point. Manslaughter is a lesser included offense of second degree murder in Florida as a matter of law. Even if the evidence for murder 2 were strong, instead of pathetically weak, the jury would still have been instructed on manslaughter, and they will be instructed on manslaughter in this case, as well.

Invariably the next question is, well, what are the prospects that the State can convict Zimmerman of manslaughter?

You can view Florida’s manslaughter statute here:

782.07 Manslaughter

To clearly understand the issue, however, we need to take a step back, and consider what the State actually has to accomplish in this case (or, really, any self-defense case).

(1) They need to prove each and every element of a criminal charge–either murder 2 or manslaughter–beyond a reasonable doubt.

(2) They have to disprove any single element of the legal defense of self-defense-beyond a reasonable doubt.

I’ve mentioned there’s no way the State can prove murder 2. Manslaughter, however, should be a walk in the park. All that’s really required of the state is to prove (a) Zimmerman deliberately used force against Martin, and (b) Martin died as a result (I’m simplifying of course, but you get the idea).

Even if the state can prove the elements of manslaughter beyond a reasonable doubt–and I believe they can–they still need to overcome Zimmerman’s claim of self defense if they wish to obtain a conviction on that charge.

Unless the State can disprove self-defense beyond a reasonable doubt, the jury must conclude that Zimmerman did, in fact, act in self-defense. Because self-defense is an absolute justification for the use of deadly force against another, it matters not a whit if the elements of either murder 2 or manslaughter have been proven 2 beyond a reasonable doubt–the verdict must be “Not Guilty.”

So, the bottom line is: If the State can’t prove murder 2, they can almost certainly prove manslaughter–but still not get a verdict of “Guilty” if they can’t disprove self-defense.

It’s too late tonight to get in to the many reasons I believe the State can’t come close to disproving Zimmerman’s claim of self-defense in this case, and therefore why I believe firmly that he will not be found guilty (or, if found guilty, the verdict will be promptly reversed–also too late to get into the reasons for that), but I’ll try to get another post up this week on the subject.

–Andrew
@LawSelfDefense
Facebook: Law of Self Defense

Get to know Andrew

Andrew F. Branca, Esq., is the foremost expert in U.S. self defense law across all 50 states, whose expertise has been used by the the Wall Street Journal, the Chicago Tribune, NPR, numerous other media organizations, as well as many private, state and federal agencies. He is a Massachusetts lawyer, Life Member of the National Rifle Association (NRA), and Adjunct Instructor on the Law of Self Defense at the SigSauer Academy in Epping, NH. He regularly lectures and speaks throughout the country on how to protect yourself against both an attack and the legal machine after. Andrew is a multi-division Master-class competitor in IDPA and an NRA-certified firearms instructor. He holds or has held concealed carry permits for Massachusetts, Connecticut, Rhode Island, New Hampshire, Maine, Pennsylvania, Florida, Utah, Virginia, and other states.