Florida defines murder in the second degree as:
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 . . .
Florida’s standard jury instruction for murder 2 notes that:
An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:
- a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
- is done from ill will, hatred, spite, or an evil intent, and
- is of such a nature that the act itself indicates an indifference to human life.
Notice step 2. Under Florida law the mere fact that an armed man kills another who is unarmed does not prove a “depraved mind” (Poole v. State, Bellamy v. State, and Light v. State). Typically, the prosecution proves “ill will, hatred, spite, or an evil intent” through evidence of a long-standing grievance or some unusually wrongful or aggressive conduct on the part of the attacker.
In this case Zimmerman and Martin did not know each other, so there was no existing grievance. That’s why the prosecution’s narrative claims that Zimmerman “profiled, pursued, and killed” Martin, describing his conduct as that of a racist, “wannabe” cop who ruthlessly pursued the frightened Martin.
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In the dozens of Florida cases I have read that address the issue of a “depraved mind” murder, not one defendant described as possessing a “depraved mind” phoned police immediately prior to the killing and kept them informed in real time as the situation developed.
Andrew F. Branca is in his third decade of practicing law in the Commonwealth of Massachusetts.
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Zimmerman as Racist
Racism and a “depraved mind” are well linked in Florida law. In Hooker v. State , for example, Hooker killed a man while “looking for Mexicans to run out of town”. The appellate court said his racially motivated actions “fell squarely within the statutory definition of second degree murder, … evincing a depraved mind.“
This is the real reason why the prosecution and the Martin family either blatantly encouraged or (at minimum) didn’t discourage these now-debunked stories:
NBC falsely doctored the 911 call to make it look like Zimmerman mentioned Martin’s race to the dispatcher unprompted, when in fact the dispatcher asked him.
CNN claimed George said “f**king coon” on the 911 tape, a horrible racial slur. Tom Owen, an audio forensics expert, confirmed Zimmerman’s claim that he said ‘f***king punks’.
At the same time, any facts that didn’t fit the “racist” narrative found little mainstream coverage, including:
- Zimmerman and his wife tutored black (and white) children for free on weekends.
- Zimmerman partnered with an African-American to open a business in 2004.
- When the white son of a local police lieutenant escaped discipline after beating a black man Zimmerman circulated flyers demanding punishment.
- The FBI spent months looking for a racial motivation in this killing, but found no evidence to support such a finding.