Trials, unlike punditry, operate not in the world of evoked memory, allegory and free association, but in the world of facts. When it is a criminal trial the facts must be proven beyond a reasonable doubt. There is a reason that exacting standard is used — someone’s freedom, or life in the instance of a capital case, is at risk.

George Zimmerman George Zimmerman (Jacob Langston / Orlando Sentinel)

A journalist can construct a scenario in the Trayvon Martin case in which he can nonchalantly assign criminal liability with phrases such as “shot an unarmed man,” but these banalities have no legal meaning.

Let’s take the charge at issue, second-degree murder. It is a nearly incomprehensible example of overcharging, if one understands the definition of second-degree murder. This is why so many experienced attorneys were shocked by the charge.

Journalists rooting for a conviction have repeatedly said that Zimmerman’s explanation doesn’t “hold together” or “make sense.” In a column that is interesting; in a court of law it is irrelevant. What matters is if the state has the case — one so certain that there are no reasonable facts that could provide an alternate explanation. It’s the opposite of the journalistic standard, in other words.

Second degree murder requires proof beyond a reasonable doubt that the killer had “depraved indifference to human life.”  Former prosecutor Andy McCarthy explains: “In a depraved mind case, motive is superfluous because what establishes the mens rea is the objective barbarity of the act itself, not some fuzzy ‘generalized hatred’ that may have been crawling around the killer’s brain. It is virtually inconceivable that a situation involving self-defense on the killer’s part will fit a ‘depraved mind’ charge.”

It isn’t good enough to say Zimmerman was foolish to follow Martin. It’s certainly not good enough to intuit that society has a biased perception of single black men. It’s not good enough to say Zimmerman wanted to be a hero. One has to prove beyond a reasonable doubt that Zimmerman was not simply a fool, a grandstander or even a racist (which the prosecution has utterly failed to do, and indeed has left a gaping hole where evidence of racism was supposed to be in the journalistic narrative) but had such a general indifference to life as to exhibit an attitude, as a federal case cited by Andy puts it, akin to “opening the door of the lions’ cage in the zoo.”

The near impossibility of establishing this crime beyond a reasonable doubt was evident when the affidavit was first revealed. The allegations purportedly establishing depraved indifference were not true (as we’ve seen when witness after witness has blown up in the state’s case) and at any rate don’t make for depraved indifference. What’s worse, the prosecutor intentionally omitted known facts that are the essence of reasonable doubt, in fact making the charge itself ludicrous.

Legal self-defense expert Andrew Branca has the definitive debunking of the affidavit and the trial disasters for the prosecution that should be read in full, but an excerpt is sufficient to show the “Grand Canyon” between what has been shown and what must be shown for a conviction:

That affidavit claimed that “Martin attempted to run home but was followed by Zimmerman”. But this cannot be true, because if Martin had indeed run home it would have been impossible—based on the times and distances involved—for the older, clinically obese Zimmerman to catch up to him before he secured safety.


The affidavit claimed that “Zimmerman disregarded the police dispatcher[‘s alleged instruction to not follow] and continued to follow Martin”. This also is known not to be true, because alleged instruction never occurred.


The affidavit goes on to claim that “Zimmerman confronted Martin.” Another untruth, as testified to this past week by Rachel Jeantel, who claims to have overheard, by cell phone, the brief confrontational speech between the two men.


Worst of all, however, is the fact that ALL of these foundational claims of the affidavit for probable cause were known to be untrue at the time . . .


Noting blandly that “a struggle ensued” between the two men, the affidavit fails to acknowledge the almost total absence of injuries on Martin (absent, of course, the gunshot wound that ended the fight), except for cuts on his hands consistent with having struck a blow. Similarly, no mention was made of Zimmerman’s far more extensive injuries, including abrasions, contusions, and lacerations all around his head, consistent with having had his head beaten against a concrete sidewalk (as Zimmerman claimed was the case . . . . Further, no mention was made of any fact consistent with Zimmerman’s claim of self-defense. Nor was that very claim of self-defense mentioned. Again, every one of these facts excluded from the affidavit was known to investigators at the time the document was sworn and filed.

Unlike a defense attorney, a prosecutor is not ethically entitled to leave out the bad stuff if it makes her charge appear incoherent.

In any run-of-the-mill case, you’d struggle to understand how in the world a prosecutor could bring this case. But in this case we know. The original prosecutors were tossed aside as a public firestorm raged, the president publicly expressed his concern and sympathy for the victim (unlike the Gosnell case where he refused to comment on a pending case), a special prosecutor was assigned and she revealed the deficient affidavit at a grandstanding press conference.

No, in normal circumstances the case would not have been brought (or would have been brought as a negligent homicide at best) or the judge would have dismissed it already or there would be a directed verdict after the state’s case. But this is no ordinary case. Too many think “justice” is bringing any old case, whatever the facts, as a sign of empathy with a victim or a determination to rid society at large of bias or unfairness. That is not what our criminal legal system is about, and to embrace the “whatever” theory of prosecution is to remove the line between law and vengeance.

The jury, as we know from long and tragic experience, may convict anyway, but only if the jurors catch the vengeance fever and mimic the blithe disregard for facts and legal standards that has gripped most of the media.