If you thought the prosecution could not get any more overreaching in the Zimmerman murder trial, consider one scuffle in court today. The prosecution, no doubt understanding the weakness (nonexistence?) of its second-degree murder charge, persuaded the judge to let the jury also consider a manslaughter charge. The danger here — and the reason for the gross overcharging on second-degree murder — is that no matter how many times they are instructed not to, the jurors will compromise and feel compelled to convict Zimmerman of “something.”

George Zimmerman
George Zimmerman (CBS News)

But then the state asked the judge to include a third-degree felony murder charge:

Defense attorney Don West called the possible lesser charge of third-degree felony murder “outrageous” and a “trick” by the state. He said prosecutors asked for the inclusion at the last minute.

“Just when I thought this case couldn’t get any more bizarre, the state is seeking third-degree felony murder based on child abuse?” West said.

The offense of third-degree felony murder would be premised on the idea that Zimmerman committed child abuse since 17-year-old Trayvon Martin was underage when he was fatally shot. Prosecutors said they will not pursue the lesser charge of aggravated assault, as they initially indicated.

This is as bizarre as it is desperate. (The judge said she’d let the defense brief that issue.)

The irony and the tragedy in this case are that in assuming this was a racially motivated crime, the federal and state authorities (including the president, who publicly identified with Martin by saying Martin could have been his son) turned a simple self-defense case into a racial circus. As Cornell law professor William Jacobson explained:

We also knew that Eric Holder had the DOJ investigate the case, and that the FBI found no evidence that Zimmerman was racist or motivated by racism. What we didn’t know until [Wednesday] was that the DOJ supported some of the anti-Zimmerman rallies, as disclosed by Judicial Watch.

The way the trial has been conducted is an equal travesty.

The prosecution is throwing everything against the wall, including conflicting and inconsistent theories that Trayvon was on the bottom of the fight screaming and alternatively that Trayvon was on top pulling back.

Similarly the prosecution creates obsessive distractions such as whether Zimmerman “followed” Martin, even though that is legally irrelevant.

Moreover, CNN today interviewed the local police chief Bill Lee, who revealed, “There was, um, pressure applied.  You know, I – I’m – the, you know, city manager asked several times during the process well, can an arrest be made now? And I think that was just from not understanding the process, the criminal justice process.  And one of the city commissioners come to me on two different occasions and say, you know, all they want is an arrest.”

This is not an instance in which the prosecution dispassionately weighs the evidence and decides whether guilt can be proved beyond a reasonable doubt. Prosecutors stoked the fire, crafted a media show and concocted a second-degree murder charge that is flimsy at best. They have not been on the side of the angels in this one.

That is not to say that their approach won’t “work,” if by that one means that it will cajole a jury into conviction despite the voluminous (forget “reasonable”) doubt raised in the trial. But it is that mound of evidence contributing to reasonable doubt that was in the prosecution’s hands nearly from the get-go and because of which an ethical, restrained prosecutor would never have filed a second-degree murder charge. “Justice” is not cobbling a flawed case to quench the thirst for justice and then letting a jury decide; that is by definition an abuse of prosecutorial discretion and unethical.

The awesome power of prosecutorial discretion is easily abused, especially when the president shows no restraint and the media pile on.

Maybe the jury will be wise to all of this, but sometimes juries are not. I don’t suppose the Justice Department would then help stage rallies for an Hispanic man unjustly charged and convicted in order to satiate the mob.

 

 

 

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.