I am a fan of Bill Jacobson’s Legal Insurrection ( and as such I am not surprised at the stellar job LI’s Andrew Branca has done covering the George Zimmerman trial in Florida. (Mr. Branca’s most recent update is here.) I am only surprised to find myself in a disagreement with Mr. Branca — or at least what I thought was a disagreement — over the viability of the prosecution’s legal theory that Zimmerman’s killing of Trayvon Martin was a “depraved mind” murder (i.e., murder in the second degree under Florida law).

My post here at Ordered Liberty on Sunday was in part addressed to a discussion Branca had on that subject with Powerline’s John Hinderaker (detailed in John’s post here). John had argued that the accused’s attitude (if any) about race — a distorted focal point of the media coverage and of the prosecution’s sly presentation — ought to be irrelevant to the central question of whether Zimmerman acted in self-defense. Mr. Branca seemed to take issue with that, although there is some ambiguity about how much his responsive contentions reflect his own views as opposed to reflecting his explanation of what the prosecution is (waywardly) trying to do.

I countered that while I agreed with Branca on what the prosecution was trying to do — namely, use Zimmerman’s purported racism to fill the gaping evidentiary hole in its case — I disagreed with Branca’s explanation of depraved mind murder and with what I took to be his “suggesti[on]” that the prosecution’s theory was “viable.”

Branca has now responded on Powerline (I think it is another email to John; I do not see it cross-posted at LI. If I’ve missed it there, I apologize). He says I misconstrued what he insists was his crystal clarity in arguing “that the State’s strategy was not viable,” and claims to be astonished that I “managed to miss that.” In particular, he takes issue with my purportedly attributing to him the word “viable” which he has taken great pains to confirm that he never uttered.

Let’s take the easy part first: I never said Branca used the word “viable.” And note that I did quote Branca’s argument at great length (and quote it yet again below). Readers can judge for themselves, but I thought I was pretty clear about when I was quoting Branca and when I was using my own words (like “viable”) to analyze his contentions.

Now, let’s get to his argument. He asserts that it “is beyond” him “how [I] managed to miss” his point that the “State’s strategy was not viable” given that he has written a blog post in which the lack of viability was “the entire point.” I’ll take him at his word on that, but I was going with what he wrote to John Hinderaker. Here, again, is what he said:

In order to prove the second degree murder charge the State brought against Zimmerman they must prove beyond a reasonable doubt that he acted with a depraved mind. To get to a depraved mind they need to show some kind of hatred or ill-will. In most murder 2 cases the people know each other and have a long history of animus, which is the source of the “depraved mind”. Here Martin and Zimmerman did not know each other, so the State is forced to pursue some more generalized hatred — such as racism.

It seemed to me from reading this that Branca was saying the state’s focus on Zimmerman’s supposed racism was a “viable” (my word) way of proving the required mental element. I further deduced that Branca may have been led to that incorrect conclusion by his apparent misunderstanding (in the paragraph excerpted above) of what that mental element is in a “depraved mind” murder case.

I felt pretty confident construing it this way not only from what Branca wrote here, but from the context. Branca was writing in response to Hinderaker’s suggestion (correct in my view) that racism is irrelevant to the legal issues in the case. As John wrote, “Andrew Branca, a criminal law expert … wrote to say I had overstated the point,” and to explain that “[t]here is a reason … for the prosecution’s dragging race into the case.” Whereupon Hinderaker quotes Branca as stating: “Actually, those elements [i.e., racism, profiling, and Zimmerman’s acting as a 'wannabe cop'] are being pursued by the State for a good reason – they are essential to the State’s ability to prove the ‘depraved mind’ necessary for a murder 2 conviction, which is what the state is pursuing (however foolishly) against Zimmerman.” (My italics.)

“Viable” is a word that can mean a couple of different things in the context of analyzing a prosecutor’s case. I was using it in the strict, technical sense of “legally cognizable,” meaning: I took Branca to be arguing that what he called the State’s “good reason” for trying to prove Zimmerman was a racist is that, as a matter of law, racism can satisfy the prosecutor’s burden of proving the depraved mind mental element of second-degree murder. That is the proposition I took exception to.

“Viable,” however, can also connote “persuasiveness,” meaning: even if racism could in theory satisfy the prosecutor’s burden of proof on the mental element, it only works on the facts of the case if there is persuasive evidence that Zimmerman actually was a racist. I did not mean to suggest that Branca thought the case was viable in that sense — after all, he tells John he believed the state had acted “foolishly” in charging Zimmerman with second-degree murder.

My argument was, and continues to be, that Branca’s description of the law of “depraved mind” in his original email to Hinderaker is inaccurate. He also appears to be saying that the State has no hope of proving that Zimmerman is a racist or that he otherwise had a depraved mind, and I wholeheartedly agree with that. But my point was that the prosecution should be precluded from infecting the trial with meanderings about racism (and, relatedly, “profiling”). As a matter of law, racism cannot prove “depraved mind”; therefore, it becomes a dark atmospheric that is unfairly prejudicial to the defendant.

Again, Branca asserted: “To get to a depraved mind they [i.e., the prosecutors] need to show some kind of hatred or ill-will.” That’s inaccurate. It is not “some kind of hatred or ill-will”; it is a very specific kind of heinous mental state: callous indifference to human life. To be fair to Branca, the model Florida jury instructions are superfluously confusing on this point. (As an aside, I found in my many years as a prosecutor that model jury instructions were flawed more often than you might imagine. They’re a good place to start, but not always good to parrot.) They say that to prove second-degree murder — a death-causing act that was “imminently dangerous to another and evincing a depraved mind regardless of human life” — the state must show each of the following three things:

1. a person of ordinary judgment would know [the act] is reasonably certain to kill or do serious bodily injury to another, and

2. [the act] is done from ill will, hatred, spite or an evil intent, and

3. [the act] is of such a nature that the act itself indicates an indifference to human life.

The confusion lies in the second prong. The classic example of depraved mind murder — which many jurisdictions more helpfully call “depraved indifference” murder – is the savage who intentionally fires into a crowd, knowing but not caring that the shot is very likely to kill someone. We deduce from the nature of the act that the person is acting with ill will or hatred. The person’s indifference to human life is what makes the act hateful or the product of ill will. I don’t see why it should be necessary for the jury to find, separately, that the act was done from ill will or hatred — the act necessarily speaks for itself in that regard.

It is worth noting that even these jury instructions speak of hatred or ill will to be deduced from the act of murder, and make clear that they are inadequate to prove the required mental state unless the act also “indicates an indifference to human life.” That is why, as the jurisprudence I discussed yesterday teaches, you will virtually never find depraved mind murder committed in a one-on-one scenario, especially one involving a claim of self-defense.

Branca had said: “In most murder 2 cases the people know each other and have a long history of animus, which is the source of the ‘depraved mind’.” That is not so. In depraved mind murder, the people frequently will not know each other (think of a terrorist bombing a building); more importantly, even if they do know each other (e.g., the mother who beats her infant to death), the required depravity (and the hatred we infer from it) must be found in the act itself. It is not found independent of the act or in any prior relationship between the actor and the decedent, and even less in any “generalized hatred” (such as racism) that the actor allegedly harbors.

If there is no depravity in the act — and self-defense, a natural right, cannot be depraved — then it does not matter if the actor held despicable attitudes.

I disagreed with Mr. Branca — who I happen to think is a smart guy — because he seemed to me to be saying that racism is arguably relevant to the case. I did not mean to suggest that he was buying the racism angle, only that he thought the prosecution had a plausible pretext for using it. If he doesn’t think so, I am glad to hear it. If he does, I respectfully disagree.

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