McClatchy Newspapers, Published April 11 2012
Legal experts: Second-degree murder charge may be hard to prove in Trayvon Martin case
Experts also expect Zimmerman's new lawyer, Mark O'Mara, to rely on the state's “Stand Your Ground” self-defense law to try to have the murder charge dismissed by a judge without a trial.
Zimmerman, 28, was acting as a neighborhood watch patrolman in a townhouse community in Sanford, Fla., near Orlando, on Feb. 26 when he and Trayvon got into a confrontation behind a row of homes. Zimmerman shot and killed Trayvon, who was unarmed and had been in Sanford visiting his father's girlfriend.
It's unclear who started the confrontation. Zimmerman told police that Trayvon attacked him and began pounding his head on a sidewalk before Zimmerman fired his gun.
Legal experts said the circumstances of the shooting suggest that prosecutors will have a hard time proving that Zimmerman was acting with a “depraved mind” when he pulled the trigger - the standard for second-degree murder.
“Based on the available facts, it's a huge overreach,” said Miami defense attorney John Priovolos, a former prosecutor, who said Corey will be hard pressed to show Zimmerman had “ill-will, spite, malice or hatred” needed to prove a “depraved mind.”
Former Miami-Dade senior prosecutor David Waksman cautioned that the public must wait for all the evidence to be unveiled, but acknowledged that “this is not going to be an easy case.”
“I think if (Zimmerman) had a bloody nose and some sort of injury to the back of his head, that's going to be pretty good corroboration to whatever story he came up with,” Waksman said.
Some experts said the prosecutor may have made a tactical decision to charge Zimmerman with the highest possible crime. One reason: The more severe charge keeps him behind bars for now. In Florida, someone facing a murder charge cannot post bond unless a judge holds a hearing and allows bond to be set.
And even if the evidence against Zimmerman isn't strong, prosecutors can hope he strikes a plea bargain for a lesser charge such as manslaughter _ or risk losing at trial, where he could be slammed with a long sentence.
“Now, he's in a position of having to throw all his eggs in one basket and risk going to trial, and if he's convicted, his life is over,” said veteran South Florida defense lawyer Jack Blumenfeld.
The difference between second-degree murder and manslaughter is significant. A conviction for second-degree murder with a firearm can carry a minimum mandatory sentence of 25 years in prison; manslaughter carries no minimum sentence.
But Zimmerman's case may never get to a jury.
Under Florida's controversial Stand Your Ground law, a person may not be prosecuted for using deadly force if the person “reasonably believes” he or she is in life-threatening danger. Zimmerman's lawyer could ask a judge to dismiss the charges if he can prove that it was more likely than not that the defendant was acting in self-defense - a lower standard of proof than the prosecutors must bear at a jury trial.
Even if a judge declined to toss out the charges, Zimmerman still would be able to raise the Stand Your Ground law as a defense at trial, along with other traditional self-defense claims. But each of these defenses can come with a risk: Zimmerman may then have to testify in his own defense and face cross-examination from prosecutors.
“Second-degree murder is a difficult charge to prosecute in a situation like this,” said longtime defense attorney Bill Matthewman. “I think there are several potential defenses.”
In a press conference announcing the murder charge Wednesday evening, Corey would not offer details about the evidence that supports the murder charge. The Duval County State Attorney's Office, which stepped in to prosecute the case at Gov. Rick Scott's request less than three weeks ago, did not release any arrest reports detailing the investigators’ probable cause.
She said her team considered Zimmerman's self-defense arguments before determining that the evidence merited a murder charge.
“If it becomes an issue in this case, we'll fight that affirmative defense,” she said.
Another potential issue: where to hold the trial. High-profile cases are often moved to other jurisdictions to ensure that a defendant receives a fair trial from a pool of jurors free of the influence of public pressure and pre-trial publicity.
But with Zimmerman's case becoming such a fixture on national cable news, it's not certain that any Florida county would be a better location for the trial. “I don't think you get past the problem of potentially tainted jurors,” Matthewman said.
A day after Zimmerman's two former lawyers held a press conference to announce their withdrawal and complain about him, Zimmerman on Tuesday hired O'Mara, a veteran Orlando-area attorney with almost 30 years of experience. O'Mara is board-certified in both criminal trial practice and in family law, and he's handled high-profile murder cases in the past. He's also the past president of the Seminole County Bar Association, and he's been a legal analyst for an Orlando television station.