THE BLOG
07/01/2013 05:59 pm ET | Updated Aug 31, 2013

Overcharging George Zimmerman With Murder

The first week's testimony in the Zimmerman trial shows clearly that Special Prosecutor Angela Corey overcharged Zimmerman with murder in the second degree. Why do prosecutors overcharge? Is it ethical for prosecutors to bring charges that cannot reasonably be supported by the evidence?

Everybody who follows criminal cases knows that a prosecutor's charging decision is the crux of the prosecutor's function. Charging crimes involves an extraordinary use of prosecutorial power, and is virtually unreviewable by courts. Indeed, a prosecutor's discretion to bring charges probably is the most dangerous aspect of the prosecutor's function, and invites abuse.

In Florida, as relevant to Zimmerman's killing of Trayvon Martin, which Zimmerman conceded from the beginning, Corey had the power to select a charge from three homicide statutes -- first degree murder, second degree murder, and manslaughter. First degree murder requires a killing with a "premeditated design," and is a capital offense. Second degree murder requires proof that the killer acted with a "depraved mind." Manslaughter requires proof that the killer acted with "culpable negligence" and "without lawful justification."

A first degree murder charge was never a plausible option because there was no proof that Zimmerman had a preconceived plan to cause Martin's death. But was there any proof that would support a second degree murder charge, namely, that in causing Martin's death, Zimmerman acted with a "depraved mind"? At the time that Corey filed the probable cause affidavit, was there a reasonable view of the evidence to support a claim that in shooting Martin, Zimmerman acted with a depraved mind? Even assuming the truth of the assertions in the affidavit that Zimmerman "profiled" Martin, "followed" him, "confronted " him, and engaged him in a "struggle" before shooting him, there is no reasonable theory from these assertions that Zimmerman acted with a "depraved mind." At most, his killing may have been one of "culpable negligence" and without "lawful justification," but depraved mind murder?

And the first week's evidence dramatically supports the defense theory that Zimmerman may have been legally justified in using lethal force to defend himself. One witness heard people "running" and saw two people engaged in a struggle and "flailing their arms," another witness saw two people struggling in a "ground and pound" encounter in which Martin appeared to be on top of Zimmerman. Photographs showed Zimmerman's injuries -- a bloody nose, scrapes, lumps, and two bloody cuts to his head. Evidence also showed that Zimmerman's clothes were wetter in the back, with bits of grass.

Whatever a jury makes of this evidence -- and it is still early in the trial -- it seems that under no reasonable theory could a prosecutor argue that Zimmerman acted with a "depraved mind." Why? The concept of a depraved mind in criminal law traditionally is confined to cases in which a killer does not necessarily intend to kill anyone, but engages in such wanton and heinous conduct as to manifest an utter disregard for human life. The kinds of killings that historically have supported a depraved mind murder involve shooting into a crowd of people, planting a bomb in a public place, striking repeatedly a young child, and driving a car at an excessive speed into a crowded thoroughfare. Even assuming in these instances that the actor did not specifically intend to kill anyone, he had to know almost to a certainty that he would likely cause a person's death, and his depraved conduct therefore should be considered the equivalent of murder. But bringing a charge of depraved mind murder when a death results from a violent physical encounter as in the Zimmerman-Martin fight is an unreasonable and even irresponsible exercise of prosecutorial power.

Why did Corey overcharge Zimmerman, knowing that the proof would support at most a charge of manslaughter? One reason may be to give her leverage in the event the defense was interested in a plea bargain. Some prosecutors bring more charges than the evidence warrants, or higher charges than the evidence warrants, in the belief that a defendant faced with a choice between going to trial and being found guilty of the more serious charges will feel pressure to accept a plea to a lesser crime, and a lesser penalty. And prosecutors know that as many as 95 percent of defendants plead guilty. So overcharging as a coercive tactic to induce a plea usually works.

Moreover, overcharging works as a trial tactic as well. Overcharging usually is a win-win proposition for a prosecutor at trial. Presumably a jury could decide to convict of the higher charge, however unreasonable such a decision might be, especially when the crime involves an unlawful killing, and the obvious sympathy for the victim. But overcharging, as every prosecutor knows, also gives the jury a chance to compromise, and a jury verdict based on such compromise allows each member of the jury to feel that some measure of justice is being done.

These considerations may have motivated Corey to charge Zimmerman with murder. But there may have been other considerations, including public pressure to charge murder. Given the national and even international notoriety of the case, Corey's announcement of the murder charge, whether or not based on the evidence, and whether or not motivated by personal or political considerations, appeared to be a hugely popular decision. Since it was preliminary to a trial, and appeared to be a reasonable exercise of prosecutorial discretion, there was no excessive criticism.

However, whether Corey's decision to charge murder was a shrewd tactical maneuver to make a conviction more likely, or a tactical blunder in suggesting a bad faith motivation to "pile on" a charge higher than the evidence warrants, is difficult to determine. Divining a prosecutor's actual motivation is always a hazardous quest. But as the trial continues, this quest may yield more concrete answers.

Subscribe to Breaking Alerts.
Don’t miss out — be the first to know all the latest news.