What the Zimmerman Prosecution Did Not Do (and Why)

Post-verdict analysis and commentary on the Zimmerman trial has run the gamut from predictably, ostentatiously, and dangerously clownish to the genuinely insightful.  Given such a broad range, it is most curious indeed that while there has been a surfeit of reflection on what the prosecution did charge, there has been none with respect to what the prosecution did not charge and why.

Readers might agree that careful consideration of what the prosecution might well have done but did not do proves highly informative in connection with just how malicious Zimmerman's prosecution was.

The prosecution could have requested the lesser included offense of aggravated assault at the same time it requested inclusion of the preposterous (given the nature of the evidence) lesser included offense of 3rd degree felony murder (with an underlying predicate of child abuse).

This is not idle conjecture or speculation -- far from it.

In fact, while strategizing, at the close of the case, inclusion of the 3rd degree felony murder lesser included offense, "[p]rosecutors also said they would be pushing for the lesser charge of aggravated assault, but then told the judge later that they changed their minds." (emphasis added).

With regard to the potential aggravated assault charge that never was, there's more, courtesy of a post-trial,  July 15 interview with  Zimmerman prosecutor  John Guy.  Guy stated as follows with respect to pivotal facts surrounding the Zimmerman/Martin encounter:

"I think there was a struggle.  At some point, Trayvon became aware of the gun, and was backing up, and George Zimmerman shot him."

You are about to see two things with respect to aggravated assault.

First, you will see that the elements of Florida's aggravated assault statute fit very well Guy's professed belief as to what happened that night, even though the prosecution ultimately neglected to request its inclusion at the same time it was requesting the bizarre child abuse based lesser included third degree felony murder charge.

Second, you will see that aggravated assault -- just like the 3rd degree felony murder offense that the prosecution tried to include -- is, in the State of Florida, a lesser included offense of second degree murder (given permission of the judge). 

A nice summary of Florida's aggravated assault statute (which, by the way, carries penalties including up to five years in prison) appears here and reads as follows:

As defined under Section 784.021, Florida Statutes, Aggravated Assault consists of four factual elements:

  1. the accused intentionally and unlawfully threatened, by word or act, to do violence to the alleged victim,
  2. at the time the threat was made, the accused appeared to have the ability to carry out the threat,
  3. the accused's threat created in the mind of the alleged victim a well-founded fear that the violence was about to take place, and
  4. the assault was made either with a deadly weapon or with a fully formed conscious intent to commit a felony.  

Essentially, Aggravated Assault is an assault with an additional act consisting of the use of a deadly weapon or the intent to commit a felony.  

Go back to Guy's statement to Gutman: "I think there was a struggle.  At some point, Trayvon became aware of the gun, and was backing up, and George Zimmerman shot him."

If Guy really thought he had the evidence to show that Martin perceived Zimmerman's deadly weapon and was backing away, how hard would it have been to show that Martin felt threatened and fearful? 

Obviously, not hard at all.

So, could, under Florida law, a prosecution bloodthirsty enough to attempt the insertion of the ludicrous third degree felony murder child abuse charge as a lesser included offense of second degree murder have also requested inclusion of aggravated assault as a lesser included offense -- an offense one of the prosecution's own members declared to be an excellent fit to the evidence?

If you click here, you will be taken to a page at the Florida Supreme Court that contains jury instructions.  If you then click on the link for second degree murder, you get this chart:

Lesser Included Offenses

SECOND DEGREE (DEPRAVED MIND) MURDER - 782.04(2)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

Manslaughter


782.07

7.7


Third degree (felony) murder

782.04(4)

7.6


Vehicular homicide

782.071

7.9


(Nonhomicide lessers)

Attempt

777.04(1)

5.1


Culpable negligence

784.05(2)

8.9


Culpable negligence

784.05(1)

8.9


Felony battery

784.041

8.5


Aggravated battery

784.045

8.4


Aggravated assault

784.021

8.2


Battery

784.03

8.3


Assault

784.011

8.1

You can see that in Florida, with respect to second degree murder (which is what Zimmerman was originally charged with), the third degree felony murder charge is the first category 2 (meaning it is included and sent to the jury only by permission of the judge) lesser included offense mentioned.

Thus, it is obviously true that while the prosecution certainly could have requested inclusion of aggravated assault as a lesser included offense of second degree murder, it did not.

So why didn't the Zimmerman prosecution seek to insert the aggravated assault charge, particularly when one its own (Guy) must have thought enough of it then to have subsequently stated a few days later a view of the facts that fits the charge precisely?

It is really quite clear to me why the prosecution decided to drop the aggravated assault instruction.

The prosecution dropped the aggravated assault charge because it knew that, given the elements of assault, proving it would necessarily direct the jury's attention to whether or not Martin was ever -- whether before the struggle, during, or after -- threatened and placed in fear by Zimmerman's actions. 

That, of course, is the last thing the prosecution wanted to do, precisely because its entire theory of the case was that Zimmerman's doubleplusungood thoughts -- not deeds -- are what really made him a murderer.

With respect to the encounter itself, the prosecution knew that if the jury was focused on whether Martin ever disengaged and backed up, it would find zero evidence in support of that claim, but plenty of evidence that Martin was relentlessly beating Zimmerman to a pulp.

Keep in mind here too that the prosecution never charged Zimmerman with any species of assault with respect to the initial "confrontation" Corey's disingenuous affiants yapped about in their probable cause affidavit.

However, the prosecution also knew that this is 1984, and that people like Obama, Holder, and Sharpton (sorry to slight you Jesse, but let's face it: Big Al is scooping up the lion's share of race baiting attention these days) demanded a prosecution.

Therefore, it fabricated out of whole cloth an 11 year old victim out of a 17 year old, manufactured whiteness for Zimmerman (and if Zimmerman is a white Hispanic, why isn't Obama a white black?), and concealed a ton of evidence to boot.

All of the preceding shows that while the prosecution will never admit it, their underlying theory of the case was this: violent assault and battery (such as that perpetrated by Martin) predicated on imaginary racism is justified, and lawful resistance by an imaginary racist to violent assault and battery done by a member of a governmentally preferred race amounts to murder -- since the "racist" deserved his beating.

Dr. Jason Kissner is associate professor of criminology at California State University, Fresno.  You can reach him at crimprof2010@hotmail.com.

Post-verdict analysis and commentary on the Zimmerman trial has run the gamut from predictably, ostentatiously, and dangerously clownish to the genuinely insightful.  Given such a broad range, it is most curious indeed that while there has been a surfeit of reflection on what the prosecution did charge, there has been none with respect to what the prosecution did not charge and why.

Readers might agree that careful consideration of what the prosecution might well have done but did not do proves highly informative in connection with just how malicious Zimmerman's prosecution was.

The prosecution could have requested the lesser included offense of aggravated assault at the same time it requested inclusion of the preposterous (given the nature of the evidence) lesser included offense of 3rd degree felony murder (with an underlying predicate of child abuse).

This is not idle conjecture or speculation -- far from it.

In fact, while strategizing, at the close of the case, inclusion of the 3rd degree felony murder lesser included offense, "[p]rosecutors also said they would be pushing for the lesser charge of aggravated assault, but then told the judge later that they changed their minds." (emphasis added).

With regard to the potential aggravated assault charge that never was, there's more, courtesy of a post-trial,  July 15 interview with  Zimmerman prosecutor  John Guy.  Guy stated as follows with respect to pivotal facts surrounding the Zimmerman/Martin encounter:

"I think there was a struggle.  At some point, Trayvon became aware of the gun, and was backing up, and George Zimmerman shot him."

You are about to see two things with respect to aggravated assault.

First, you will see that the elements of Florida's aggravated assault statute fit very well Guy's professed belief as to what happened that night, even though the prosecution ultimately neglected to request its inclusion at the same time it was requesting the bizarre child abuse based lesser included third degree felony murder charge.

Second, you will see that aggravated assault -- just like the 3rd degree felony murder offense that the prosecution tried to include -- is, in the State of Florida, a lesser included offense of second degree murder (given permission of the judge). 

A nice summary of Florida's aggravated assault statute (which, by the way, carries penalties including up to five years in prison) appears here and reads as follows:

As defined under Section 784.021, Florida Statutes, Aggravated Assault consists of four factual elements:

  1. the accused intentionally and unlawfully threatened, by word or act, to do violence to the alleged victim,
  2. at the time the threat was made, the accused appeared to have the ability to carry out the threat,
  3. the accused's threat created in the mind of the alleged victim a well-founded fear that the violence was about to take place, and
  4. the assault was made either with a deadly weapon or with a fully formed conscious intent to commit a felony.  

Essentially, Aggravated Assault is an assault with an additional act consisting of the use of a deadly weapon or the intent to commit a felony.  

Go back to Guy's statement to Gutman: "I think there was a struggle.  At some point, Trayvon became aware of the gun, and was backing up, and George Zimmerman shot him."

If Guy really thought he had the evidence to show that Martin perceived Zimmerman's deadly weapon and was backing away, how hard would it have been to show that Martin felt threatened and fearful? 

Obviously, not hard at all.

So, could, under Florida law, a prosecution bloodthirsty enough to attempt the insertion of the ludicrous third degree felony murder child abuse charge as a lesser included offense of second degree murder have also requested inclusion of aggravated assault as a lesser included offense -- an offense one of the prosecution's own members declared to be an excellent fit to the evidence?

If you click here, you will be taken to a page at the Florida Supreme Court that contains jury instructions.  If you then click on the link for second degree murder, you get this chart:

Lesser Included Offenses

SECOND DEGREE (DEPRAVED MIND) MURDER - 782.04(2)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

Manslaughter


782.07

7.7


Third degree (felony) murder

782.04(4)

7.6


Vehicular homicide

782.071

7.9


(Nonhomicide lessers)

Attempt

777.04(1)

5.1


Culpable negligence

784.05(2)

8.9


Culpable negligence

784.05(1)

8.9


Felony battery

784.041

8.5


Aggravated battery

784.045

8.4


Aggravated assault

784.021

8.2


Battery

784.03

8.3


Assault

784.011

8.1

You can see that in Florida, with respect to second degree murder (which is what Zimmerman was originally charged with), the third degree felony murder charge is the first category 2 (meaning it is included and sent to the jury only by permission of the judge) lesser included offense mentioned.

Thus, it is obviously true that while the prosecution certainly could have requested inclusion of aggravated assault as a lesser included offense of second degree murder, it did not.

So why didn't the Zimmerman prosecution seek to insert the aggravated assault charge, particularly when one its own (Guy) must have thought enough of it then to have subsequently stated a few days later a view of the facts that fits the charge precisely?

It is really quite clear to me why the prosecution decided to drop the aggravated assault instruction.

The prosecution dropped the aggravated assault charge because it knew that, given the elements of assault, proving it would necessarily direct the jury's attention to whether or not Martin was ever -- whether before the struggle, during, or after -- threatened and placed in fear by Zimmerman's actions. 

That, of course, is the last thing the prosecution wanted to do, precisely because its entire theory of the case was that Zimmerman's doubleplusungood thoughts -- not deeds -- are what really made him a murderer.

With respect to the encounter itself, the prosecution knew that if the jury was focused on whether Martin ever disengaged and backed up, it would find zero evidence in support of that claim, but plenty of evidence that Martin was relentlessly beating Zimmerman to a pulp.

Keep in mind here too that the prosecution never charged Zimmerman with any species of assault with respect to the initial "confrontation" Corey's disingenuous affiants yapped about in their probable cause affidavit.

However, the prosecution also knew that this is 1984, and that people like Obama, Holder, and Sharpton (sorry to slight you Jesse, but let's face it: Big Al is scooping up the lion's share of race baiting attention these days) demanded a prosecution.

Therefore, it fabricated out of whole cloth an 11 year old victim out of a 17 year old, manufactured whiteness for Zimmerman (and if Zimmerman is a white Hispanic, why isn't Obama a white black?), and concealed a ton of evidence to boot.

All of the preceding shows that while the prosecution will never admit it, their underlying theory of the case was this: violent assault and battery (such as that perpetrated by Martin) predicated on imaginary racism is justified, and lawful resistance by an imaginary racist to violent assault and battery done by a member of a governmentally preferred race amounts to murder -- since the "racist" deserved his beating.

Dr. Jason Kissner is associate professor of criminology at California State University, Fresno.  You can reach him at crimprof2010@hotmail.com.

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