Criminal law is not my forte but the murder two charges seem to me to be clearly beyond what an ethical prosecutor should bring.Brian's point was that John, while disclaiming that he knew nothing about the subject, didn't let that stop him from questioning the prosecutor's ethics. This was about the Zimmerman case, a hot subject that many wanted in on. There is nothing wrong with having something to say about a high profile case that's caught the interest of many, but one might suggest that if you're going to write about it, you can't simultaneously disclaim responsibility by the "I don't know nothing about birthin' no babies" caveat. Then again, Tannebaum tends a bit toward snark on twitter sometimes.
After reading Tannebaum's twit, I asked John why, what ethical issues was he raising, what ethical proscriptions was he suggesting the prosecutor violated. John explained.
At least by the time that probable cause affidavit was filed and the prosecutor prayed with the lawyer for the parents of the deceased, I've been of the opinion that the charges were filed not because they were supported and could be proven beyond a reasonable doubt but rather because of the politics. Looking over what evidence the State still has, I don't see that they're anywhere close to murder two and I don't buy that the theory of "let the jury dispose of our over-charging" absolves prosecutors of their responsibilities.From the outside, much of criminal law seems best explained by politics. If the prosecutor's motivation isn't to charge a defendant with the crime the evidence supports, but with a charge intended to appease public blood lust or, more charitably, appeal to the public's sensibilities, it certainly emits an unpleasant odor.
But it's hard to prove motive, particularly malevolence. We can assume it easily enough of our enemies, those with whom we don't share the same politics, but we do so at our peril. The system purports to weed out charges that are unsupportable by the evidence, but it offers prosecutors a rather wide berth to charge the highest and worst count conceivably supportable.
Outsiders may see such charges as ill-conceived, improperly motivated, but that's because we have the normative sense that it offends our sense of justice and propriety. But then, we're outsiders, not the prosecutors, and they are charged with exercising the discretion of charging what they want. It's not a free ride, as charges can be dismissed when they overcharge, or they can be humiliated at trial when the evidence doesn't bear out and the defendant walks. Or they can get
Is a Murder 2 charge for Zimmerman so far out the ballpark as to be utterly unsupportable, a charge that no rational jury could find? It may be beyond the pale as far as some are concerned, but does it rise to the level of overcharging that puts the prosecution's ethics in doubt? The statute reads:
(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.Was Zimmerman's mens rea depraved? There are a great many people out there who would argue it was. John Steele thinks otherwise. Both are allowed their views, particularly since the trial has yet to start and evidence yet to be introduced. Laws based on mental states like "depraved" are sufficiently vague and wiggly that they lend themselves to such disputes.
Whether that's the "right" charge under the facts and circumstances of this case remains to be seen. But that it doesn't come anywhere near an unethical abuse of power by the prosecutors seems clear. It's in the ballpark, even if somewhere near the top of the left field fence. That remains within the prosecutor's reasonable discretion, no matter how unpalatable it may seem to some.
But after John responded to my query, Hofstra lawprof Monroe Freedman decided to put in his two cents.
When a prosecutor overcharges - a common practice - the principal purpose is to "bargain" down from that frightening charge to a "negotiated" guilty plea to what the prosecutor should have had to charge and prove to a jury if the system were working pursuant to the Constitution. Too often, the charade of a negotiation is with the connivance of the court-assigned defense lawyer, who helps to con the defendant into thinking that he has gotten a truly negotiated deal to the best plea possible.
Another purpose is to frighten the defendant into asking for a lesser-included offense instruction, which gives the prosecution the possibility of a compromise verdict from the jury to a finding of guilt of a significant offense, although less than what was initially charged.
Freedman has been around forever. He's got cobwebs in his office older than I am. But aside from his comment having utterly nothing to do with the Zimmerman case or the discussion between John Steele and me, it is such malignant, simplistic cynicism as to shock even a curmudgeon like me.
Yes, Monroe, there are prosecutors and defense lawyers like that. There are also prosecutors who charge appropriately and believe they are doing their job of protecting the public from harm. There are defense lawyers who will fight to the bitter end for their clients against all odds, and there are defense lawyers who accurately advise clients that the end will be bitter.
Since John Steele's blog is called Legal Ethics Forum, there ought to be an ethical takeaway. Mine is that Monroe Freedman has his tin foil hat on too tight, and ought to put down his keyboard and rest on laurels before destroying his legacy. Not even a fixture in academia has the right to make people stupider by proffering such overcharges of hatred and malevolence. Not ethically.
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