Prosecutor to judge: Can we also charge Zimmerman with third-degree murder based on, er, child abuse? Update: Judge rejects

Revealing, for two reasons. One: It shows that the state’s worried enough about its case that not only do they want a lesser charge added to hedge against an acquittal on second-degree murder, which seems all but assured, they want one added to hedge against the lesser-included offense of manslaughter too. The judge already agreed this morning to instruct the jury on manslaughter, which was always a more plausible explanation for what happened between Martin and Zimmerman. But the state couldn’t get away with not trying for murder; this case is supposed to illustrate a Larger Truth about white (or “white Hispanic”) racism, and something as malignant as that requires a murder charge. If the jury acquits, as it almost certainly will, at least the state’s covered its own ass on the left by saying, “Hey, we tried.”

Two: The fact that they’re now floating a charge as nonsensical as murder committed in the course of felony child abuse when the shooting itself is the ostensible child abuse lays bare just how political the state’s goal is. That was already clear from the fact that the police chief was relieved for refusing to arrest Zimmerman, and then doubly clear when the state decided it needed a special prosecutor to make sure that this was brought to trial. They must have a conviction here, not only to vindicate that Larger Truth but to lower the chances of violence after the verdict. I’m intrigued to see if the judge agrees to instruct the jury on the charge, as inane as it is, precisely for that reason. She surely knows, and the jury must have some idea, that the political stakes of this verdict are sky high. Why not give them a chance to railroad Zimmerman on a much lesser, albeit incoherent, charge in the name of preserving social harmony? Hey — like the judge said, he can always appeal.

The prosecution also wants the jury to consider third-degree felony murder, which like manslaughter is punishable by up to 15 years in prison. Third-degree murder is defined as “the unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of” certain felonies. The felony in this case, according to the prosecution, is…child abuse, because Martin was one year shy of 18 at the time of the shooting. According to this theory, the gunshot to Martin’s chest was both an act of child abuse and an unlawful killing committed in the course of that felony. Don West, one of Zimmerman’s attorneys, went ballistic at this suggestion, strenuously objecting that the charge was absurd and had been sprung on the defense at the last minute in an email sent by the prosecution this morning. If Zimmerman shot Martin in the course of a fight that the teenager initiated, West asked, by what stretch of the imagination does that count as child abuse? Judge Nelson will hear arguments about the proposed third-degree murder instruction this afternoon. After she rules, the jury will hear the prosecution’s closing argument.

You can defend instructing the jury on manslaughter because the difference between that and second-degree murder is purely a question of Zimmerman’s intent (or lack thereof). The evidence produced during the trial speaks to both charges. Child abuse adds a dimension that wasn’t addressed at trial. If they’re alleging that Zimmerman “abused” Martin somehow independent of the gunshot during the fight, the defense should have been allowed to rebut that. In fact, here’s what Florida law says about child abuse:

(b) “Child abuse” means:
1. Intentional infliction of physical or mental injury upon a child;
2. An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
3. Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.

You need to intend to inflict injury. If the jury believes Zimmerman intended to inflict injury on Martin, i.e. that he wasn’t acting in self-defense, aren’t they more likely to get him on second-degree murder or manslaughter instead? The whole point of this charge, as far as I can tell, is simply that it gives jurors an escape hatch to pinch Zimmerman on something smaller if it turns out they’re too squeamish to get him on one of the two higher charges. It has nothing to do with the facts. It’s just a way to send him to jail for less time in case they’ve decided manslaughter is a tiny bit too severe.

Anyway. I’ve been wondering: What’s the media’s feeling right now about whether Zimmerman should be convicted or not? Obviously they’ve wanted all along to see him convicted; this trial wouldn’t be on your TV 24/7 if they didn’t. (Larger Truth!) But now, on the eve of deliberation, that would mean the end of the story; the fact that he might be railroaded for political reasons is kind of interesting to them, but not terribly so since the “right” result was reached. An acquittal on all charges gives the story new legs, though, because of what might happen in the aftermath. At the very least, it’ll be time for another media-led “national conversation on race” with all the terrible, terrible commentary that entails. I bet they’re on the fence now.

Update: A bridge too far for Judge Nelson:

The jury will be instructed on second-degree murder and manslaughter only, despite the state’s best efforts. I guess the court figured that the third-degree charge would reduce the proceedings to laughingstock status.