Murder in the first, murder in the second, and manslaughter.

[TheWraith]

Since we're talking about charges, I thought it might be useful to be clear about some definitions.

The highest degree of murder is, obviously, murder in the first degree. Murder in the first is defined as a murder committed with intent, premeditation, and planning. For instance, if someone schemes out to murder their business partner and make it look like an accident, that would be murder in the first degree. First degree murder depends on the ability to prove premeditation, which is nearly impossible if the killer and the victim didn't previously know each other.

Just below that is murder in the second degree. Murder in the second is functionally identical to first degree murder, but without premeditation and planning. An example would be if someone got into an argument at a bar and ended up stabbing the other person to death, that would be murder in the second degree.

Manslaughter encompasses all other forms of homicide which don't rise to the level of murder, including cases where the person has a temporarily diminished capacity for rational judgment, or deaths arising from negligence or recklessness. For instance, if you had a bar fight that was provoked by the revelation that someone's spouse was cheating on them, and one of the participants ended up dead, that could be manslaughter. Likewise, if you have a fistfight and one of the participants falls and cracks their head open on the pavement, that could also be manslaughter. Or, someone provoking a fight which then ends with them exercising lethal self defense--even if they met the legal definition for self defense, reasonably fearing for their life, they would still be culpable for starting the confrontation which resulted in death, making it manslaughter.

Zimmerman will most likely be charged with either manslaughter or murder in the second. A conviction for manslaughter would be basically a lock in this case, since even Zimmerman's own story basically would incriminate him for that. Murder two is also possible, however this depends heavily on what the prosecutor thinks they can get a conviction on. Most prosecutors will probably go for a 100% chance of a manslaughter conviction over a 75% chance of a murder two conviction simply to eliminate the risk of an acquittal, particularly if the point is to show that someone is not getting away with murder.

The penalty in Florida for murder in the second is a minimum of 16 3/4 years in prison, with up to life in prison or up to life probation at the discretion of the judge.

The penalty in Florida for manslaughter is a minimum of 9 1/4 years in prison, with up to 15 years in prison and/or up to 15 years probation at the discretion of the judge.

[Smilo]

1. Thanks for the info.

I think it will be manslaughter and hopefully the maximum sentence possible.

[pnwmom]

2. I read that he can't be charged with murder in Florida, because only a grand jury can do that.

Hope it's not true. But I suppose a conviction on manslaughter would be better than getting off on a murder 2 charge.

http://www.huffingtonpost.com/2012/04/10/trayvon-martin-case-george-zimmermans-attorneys-quit_n_1416031.html

On Monday, the special prosecutor said that she would not convene a grand jury in the case, which effectively rules out murder charges in the case, as only grand juries can issue murder charges in the state of Florida. Zimmerman can still be charged with manslaughter and other crimes for his role in the shooting.

[TheWraith]

4. Not quite. First degree murder cases require grand juries in FL.

However, second degree does not. In any event, there was very little chance of him being charged with first degree murder anyway. Proving premeditation, in a case where the killer and the victim had never met and had no other connection, would probably be a prosecutorial nightmare.

[pnwmom]

5. That makes sense -- there was no evidence of premeditation. n/t

[notadmblnd]

38. Just my opinion, but I do think there was premeditation

He may not have planned on killing Trayvon specifically, but he was looking for an opportunity to kill someone. He took advantage of that opportunity when he approached Trayvon Martin that night.

[Recursion]

47. Really?

You really think he was "looking for an opportunity to kill someone"?

[notadmblnd]

53. Yes, I do.

[vaberella]

45. Apparently there is malice though. n/t

[gateley]

9. With these definitions in mind, I'm not sure how they could PROVE that he

wanted to KILL Trayvon, though. And I agree that the prosecutors would go with a charge that had a greater chance of getting a conviction.

I'd be happy if he was found guilty of manslaughter and given the maximum sentence. Hell, at this point I'm happy they're doing SOMETHING. And the DOJ is investigating, too (hope it doesn't back off if local charges are brought). Someone posted that may mean Hate Crime.

[TheWraith]

15. A lot depends on the evidence that we haven't seen.

Ballistics, for instance. What angle did the bullet enter from, were there powder burns indicating a distance between the shooter and the victim, was it a contact shot, etcetera. Witness testimony about what happened and whether there was a confrontation or it went straight to a fight.

For instance, a contact shot--where the gun was directly pressed to Martin's chest--would support that they were fighting, whereas a shot made from two feet away leaving powder burns would show that they weren't grappling at the time. Zimmerman's injuries or lack thereof could be presented as evidence as to whether there was a serious fight as well.

[pnwmom]

17. And he was found on his stomach, I understand, and there is a possibility

that the entry wound was in his back.

That would change things, if true.

[lacrew]

36. If the entry wound were in the back

He would have been arrested weeks ago.

Where on earth could you have heard that? The autopsy report hasn't been released.

We have to dwell within the boundaries of reality.

[pnwmom]

46. It was something I heard that the mortician had said, I believe.

That he couldn't tell which wound was the entry wound.

And until they release that autopsy report, what I said is true: there is a POSSIBILITY that Martin was shot in his back.

[lacrew]

48. I going to go out on a limb here

1. The medical examiner wouldn't have released the body to the funeral home, unless they had figured out the entry point of the bullet.

2. If the medical examiner determined that the bullet entered the back. Zimmerman would have been arrested weeks ago.

....but I would be interested in where you heard this information. Here is what I found in the New York Post:


"Funeral director Richard Kurtz said Martin was buried with a gunshot wound to the chest — nothing else."

Read more: http://www.nypost.com/p/news/national/trayvon_had_no_bruises_YRL8tJgHlR9rvOfsWMHBjK#ixzz1rqGr4dtW

Sounds clear to me.

I suppose, until we see the release of the autopsy, there is the POSSIBILTY of just about anything...but wild speculation about unknown possibilities just looks bad.

[TheWraith]

51. That's not exactly surprising to me.

If a bullet goes all the way through a human body, assuming that it doesn't fragment, it could easily take someone with experience in bullet wounds to tell the difference between an entry and exit wound.

[pnwmom]

16. Yes, if he was found guilty of manslaughter and sentenced to real prison time, I would be relieved.

Then they have to go after the police involved in the cover-up.

[gateley]

3. Thanks for the education!

With your simple, very helpful, explanations, I think they'd go for manslaughter, too. Although is the " exercising lethal self defense--even if they met the legal definition for self defense, reasonably fearing for their life, they would still be culpable for starting the confrontation which resulted in death, making it manslaughter" part be essentially null and void because of the SYG law?

And god help a judge who would give Z 15 years probation!

[TheWraith]

7. Nope. Florida self defense law has very specific rules about aggressors.

776.041?Use of force by aggressor. —The justification described in the preceding sections of this chapter is not available to a person who:

(1)?Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2)?Initially provokes the use of force against himself or herself, unless:
(a)?Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b)?In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

In other words, the aggressor in a confrontation does not have the right to defend themselves until and unless they've attempted to retreat. That's actually an excerpt from the Florida law.

Also, to be clear: 15 years of probation is an option for the judge, but ONLY in ADDITION to the mandatory minimum sentence of 9 1/4 years. That 9 1/4 years in prison would be the absolute minimum sentence he could get.

[gateley]

10. Good! I've heard some pretty jaw-dropping stories of people getting off because of that law --

and from what I can recall, many didn't "exhaust every reasonable means to escape such danger".

I'm hopeful the national attention on this may have some bearing.

And that's good on the 'in addition to' the mandatory sentence, so thanks again!!

[CenPhx]

29. But I thought this was exactly why the SYG law is so controversial---

because it eliminates the requirement that a person try every reasonable means to escape the danger other than the use of force. So long as you are in a place you have a right to be (thereby expanding the FL law beyond the usual SYG laws which apply in your home) and you reasonably believe that you are in imminent danger of death or great bodily harm, you are justified in the use of force. Am I getting this wrong? I will go reread the statute and come back...

[CenPhx]

34. Ok, you've cited the statute for where the shooter is the initial aggressor...

Here is the SYG statute I am looking at:

776.012?Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1)?He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2)?Under those circumstances permitted pursuant to s. 776.013.


The stand your ground statute only applies if you are NOT the initial aggressor? Is that the distinction you are making and why you are citing to the other statute and not the stand your ground statute?

[TheWraith]

44. Correct, it only applies to a person who is NOT the aggressor.

I'm citing the other portion of Florida self defense law because that's the part which deals with a person who is an aggressor or who initiates a situation.

[TheWraith]

35. We'll take this one chunk at a time.

because it eliminates the requirement that a person try every reasonable means to escape the danger other than the use of force.

Firstly, Florida's law isn't really that unusual--22 states have officially named "stand your ground" type laws, and most of the other states have similar laws that aren't named as such. Only a handful of states have the alternative, "duty to retreat" laws which say you have to run away even if you're otherwise behaving legally. It's not really that controversial of a measure, except a lot of people go out of their way to misrepresent the idea as being some kind of "Dirty Harry" situation where you can shoot anybody for any reason.

It's designed this way because laws requiring retreat are sometimes unfair to the victim: they may be physically unable to run away, or cornered, or be in a situation where they're obligated to run away from their own car or business rather than protect themselves. And even if they can, statistically speaking it's much harder and rarer to successfully defend yourself after you've tried and failed to escape. So the premise is that if you're legally able to be somewhere, and otherwise engaging in no aggressive behavior, you're not legally obligated to run instead of protecting yourself.

So long as you are in a place you have a right to be (thereby expanding the FL law beyond the usual SYG laws which apply in your home)

Actually, "stand your ground" laws never affect the home; self defense in the home is usually referred to as "castle doctrine" laws.

and you reasonably believe that you are in imminent danger of death or great bodily harm, you are justified in the use of force.

Yes--provided that you are NOT the aggressor. For example, if someone is walking through a parking garage and they're assaulted by someone with a knife threatening to rob and rape them, then they're justified in using the force necessary to stop the assault.

If, on the other hand, a person picks fight with somebody they hate, THEN the other person comes at them with a knife, they're required by law to attempt to escape without using force, because they initiated the incident. Only if they try to run away and fail, or the other person keeps attacking after they've surrendered, do they have legal justification for using force.

In this case, even going by Zimmerman's story to the police, he initiated a confrontation by following Martin, and then did not either attempt to flee or surrender after that. So by the standards used, he would be culpable for the encounter even if Martin had a 12 inch bowie knife and was getting ready to gut him like a fresh trout.

[peace frog]

6. Manslaughter

is probably the best Corey can hope to convict Zimmerman of in a Florida court. Sure, it appears to us to be cold-blooded murder at least in the 2nd degree, but again, this is Florida. Corey is experienced and realisitc, so manlaughter it is.

[emulatorloo]

8. Thanks for posting n/t

[Bluerthanblue]

11. very helpful information

thanks for sharing this.

[Baitball Blogger]

12. Great post. Thanks.

[Sarah Ibarruri]

13. Very interesting. Thanks. nt

[Sancho]

14. Use of a firearm during a crime ups the ante...

the sentence for using a gun can add 10 years to life to any felony conviction. If Zimmerman is convicted of manslaughter (or jaywalking) and a gun was involved, the jail sentence can be longer.

[TheWraith]

18. Yes, though that applies only for felonies.

If you're jaywalking with a gun, you're not going to get ten years, because it's not a felony.

Whether there are any gun enhancements to the sentence would depend on whether they interpret there having been a felony in progress prior to the manslaughter, such as assault/battery. Doubtful but it's possible. Also, the enhancements are 10 years if you simply use a gun in a crime, but if someone is shot and killed it's 25 years, mandatory minimum.

[anti-alec]

54. It should be second degree murder

with enhancement upgrade due to firearm usage
Another enhancement upgrade due to civil rights violation (hate crime?)
Another enhancement upgrade due to loss of life.

I would sentence him to life in prison. No parole is granted in Florida.

He needs to be removed from society. Period.

He showed no remorse, and only thought for himself.

[Dragonfli]

19. I didn't realize killing had such a limited punishment, a likely 10 to 15 years is all for

killing a teen?

That is if they can get a conviction on the manslaughter charges.


I am feeling very naive now, I had just assumed it would be measured in decades.

[TheWraith]

20. The criminal justice system is always dependent on what can be proved.

The difference between a death sentence for first degree murder and 16 years for second degree murder can be as simple as whether something is provably premeditated.

[riderinthestorm]

21. K & R! nt

[meeksgeek]

22. A former coworker...

of mine once found an intruder in his home. They got into a physical altercation and the intruder ended up dead of a gunshot wound. My friend was charged with manslaughter, found guilty, and served probation for several years. Given this situation, I suspect that Zimmerman will at least be charged with a similar crime.

[Atypical Liberal]

26. I think that is a travesty of justice.

If you encounter a violent intruder in your home I don't see how you can possibly get charged with a crime for shooting them. That's a shame.

[obxhead]

23. He can not be charged with murder in the first

in Florida without an indictment from a grand jury as well, so don't expect that to be the charge.

My guess is he will be charged with murder in the second and a jury will be given the choice to consider a lesser charge on manslaughter during their deliberations.

[Solomon]

24. If its true that Trayvon was scteaming for help

for 30 to 40 seconds I think a second degree murder charge is in order. The jury can give him manslaughter if that's what they decide, known as a lesser included offense, but the charge should be 2nd degree at least.

[Solomon]

40. Told you.

[nadinbrzezinski]

25. Third or manslaughter

Don't forget the hate crimes the Feds are working on. If convicted under hate crimes it adds to jail term.

[SamG]

27. I'm not sure I agree with your hypothetical example of the...

difference between second degree and manslaughter.

Particularly where you say:

someone provoking a fight which then ends with them exercising lethal self defense--even if they met the legal definition for self defense, reasonably fearing for their life, they would still be culpable for starting the confrontation which resulted in death, making it manslaughter.

I see that as second degree, NOT manslaughter.

Manslaughter can be a conviction for a drunk driver killing a pedestrian. Unintentional but drunk condition makes it partially intentional,

Manslaughter can be a conviction for a fight that got out of hand, and a single punch killed the victim, particularly if the fight was NOT started by the defendant. The other way around applies here, Zimmerman clearly started the confrontation, AND MOST IMPORTANT, Z used "known deadly force", not just a punch to deck a guy on the ground and cause a head trauma, so I see Z as eligible for a second degree murder charge. Fists never equal guns, and the control of the gun, and the choice to use the gun was in Z's hands, this was no accidental, "it just went off when we were wrestling" defense.

My question to you: can Florida charge TWO LEVELS, murder2 and lesser included, (manslaugter), and just let the jury pick the conviction they feel best suits the facts? Several states allow for lesser includeds. Does FL?

[DevonRex]

32. Plus, 2nd degree gives teh chance for a plea deal. Go high, plea down. nt

[TheWraith]

42. Manslaughter has several levels as well.

Manslaughter itself is the highest, after which you have negligent and involuntary manslaughter. These lower levels are what covers unintentional deaths arising from negligence instead of malice: for instance, someone runs a red light and accidentally kills a pedestrian. Standard manslaughter charges are more serious, and accordingly reflect a higher degree of responsibility.

The scenario I described, which is basically the one that Zimmerman claimed to the police as what happened, is one where the person doing the killing would have been acting appropriately in self defense if they had not initiated the encounter. Instead of direct responsibility, they bear indirect responsibility, for creating the situation where the confrontation happened. As opposed to something like our theoretical driver, who bears not indirect, but negligent responsibility.

In any event, it just came across that they're charging him with murder in the second.

[rrneck]

28. Nice work.

I know you've been following this carefully and I appreciate the effort.

[riverbendviewgal]

30. Was George Zimmerman in his car/truck when he spoke to 911?

If so, 911 told Zimmerman not to follow Martin...but Zimmerman got out of his vehicle....and went after Martin...
Am I correct on this?

If this is the case then Zimmerman looked for trouble and was the aggressor.

[TheWraith]

37. As I understand it, he was already out of his vehicle when he was told that.

His heavy breathing was the reason that the 911 operator asked, if I recall correctly, and he was then told not to follow Martin but continued to do so.

[DevonRex]

31. murder in the 2nd

He was told twice to NOT follow the kid. He did not obey. He was armed. He kid was not. He was stalking the kid. He had plenty of time to THINK about what he was doing.

[usrname]

33. Book'em danno

[robinlynne]

39. Thank-you. My first reaction was to ask that question and here you answered it.

[pasto76]

41. manslaughter still ruins your life. Ask any of the EMT or emergency vehicle drivers

who have been in prison or are currently in prison for mishaps while driving lights and sirens. Zs fantasies of being some for of LEO will be over. Even an acquittal will show up on his background.

[onenote]

43. I highly recommend the OP.

Its always a good thing when someone on DU with actual knowledge and expertise shares it, since there are a lot of armchair experts out there who offer opinion uninformed by any actual knowledge.

Thanks!

[steve2470]

49. Murder statute of the state of Florida with link

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0782/Sections/0782.04.html

Title XLVI
CRIMES Chapter 782
HOMICIDE View Entire Chapter

782.04?Murder.—
(1)(a)?The unlawful killing of a human being:
1.?When perpetrated from a premeditated design to effect the death of the person killed or any human being;
2.?When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:
a.?Trafficking offense prohibited by s. 893.135(1),
b.?Arson,
c.?Sexual battery,
d.?Robbery,
e.?Burglary,
f.?Kidnapping,
g.?Escape,
h.?Aggravated child abuse,
i.?Aggravated abuse of an elderly person or disabled adult,
j.?Aircraft piracy,
k.?Unlawful throwing, placing, or discharging of a destructive device or bomb,
l.?Carjacking,
m.?Home-invasion robbery,
n.?Aggravated stalking,
o.?Murder of another human being,
p.?Resisting an officer with violence to his or her person,
q.?Felony that is an act of terrorism or is in furtherance of an act of terrorism; or
3.?Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or methadone by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,

is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.
(b)?In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.
(2)?The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
(3)?When a person is killed in the perpetration of, or in the attempt to perpetrate, any:
(a)?Trafficking offense prohibited by s. 893.135(1),
(b)?Arson,
(c)?Sexual battery,
(d)?Robbery,
(e)?Burglary,
(f)?Kidnapping,
(g)?Escape,
(h)?Aggravated child abuse,
(i)?Aggravated abuse of an elderly person or disabled adult,
(j)?Aircraft piracy,
(k)?Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l)?Carjacking,
(m)?Home-invasion robbery,
(n)?Aggravated stalking,
(o)?Murder of another human being,
(p)?Resisting an officer with violence to his or her person, or
(q)?Felony that is an act of terrorism or is in furtherance of an act of terrorism,

by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
(4)?The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:
(a)?Trafficking offense prohibited by s. 893.135(1),
(b)?Arson,
(c)?Sexual battery,
(d)?Robbery,
(e)?Burglary,
(f)?Kidnapping,
(g)?Escape,
(h)?Aggravated child abuse,
(i)?Aggravated abuse of an elderly person or disabled adult,
(j)?Aircraft piracy,
(k)?Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l)?Unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,
(m)?Carjacking,
(n)?Home-invasion robbery,
(o)?Aggravated stalking,
(p)?Murder of another human being,
(q)?Resisting an officer with violence to his or her person, or
(r)?Felony that is an act of terrorism or is in furtherance of an act of terrorism,

is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5)?As used in this section, the term “terrorism” means an activity that:
(a)1.?Involves a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States; or
2.?Involves a violation of s. 815.06; and
(b)?Is intended to:
1.?Intimidate, injure, or coerce a civilian population;
2.?Influence the policy of a government by intimidation or coercion; or
3.?Affect the conduct of government through destruction of property, assassination, murder, kidnapping, or aircraft piracy.

History.—s. 2, ch. 1637, 1868; RS 2380; GS 3205; RGS 5035; s. 1, ch. 8470, 1921; CGL 7137; s. 1, ch. 28023, 1953; s. 712, ch. 71-136; s. 3, ch. 72-724; s. 14, ch. 74-383; s. 6, ch. 75-298; s. 1, ch. 76-141; s. 290, ch. 79-400; s. 1, ch. 82-4; s. 1, ch. 82-69; s. 1, ch. 84-16; s. 6, ch. 87-243; ss. 2, 4, ch. 89-281; s. 4, ch. 90-112; s. 3, ch. 93-212; s. 11, ch. 95-195; s. 18, ch. 96-322; s. 1, ch. 98-417; s. 10, ch. 99-188; s. 16, ch. 2000-320; s. 2, ch. 2001-236; s. 2, ch. 2001-357; s. 1, ch. 2002-212; s. 12, ch. 2005-128; s. 1, ch. 2010-121.

[freshwest]

50. SP said on camera, it'd be Second Degree Murder. The video was one of those posted here yesterday.

It seems appropriate. And she spoke of the trial. The jury may reduce it to Manslaughter. It hasn't been tried and the jury hasn't been given instructions. I saw from two different threads yesterday, one video and the other the screen shot of his mug shot, inmate number, etc. that he will not be bailed. Perhaps the trial wiil be this summer and everyone will be satisfied then.

[vaberella]

52. Thanks and I read for Murder 2 there has to be malicious intent. n/t