Prior to the release of the Zimmerman charges, I thought it was likely he would be charged some form of manslaughter rather than with murder. Murder convictions, including second-degree, require the prosecutors to prove malicious intent. And once you strip away the rhetoric from Sharpton, Jackson, and the New Black Panthers, it seemed extremely unlikely that prosecutors had enough to meet that standard.
A few hours after the Zimmerman charges were announced, I sent the following in an email:
My take is that the prosecutor better know something major the public is unaware of. Otherwise, they’ve probably botched this as badly as possible in order to pander to Sharpton and Jackson. The currently available, public evidence might support a negligent homicide conviction, what prosecutors originally considered charging Zimmerman with on the night of the incident. It might even support voluntary homicide. However, in a fair trial with the currently available information I just don’t see how the prosecutor is going to prove malicious intent, a requirement for a murder conviction. I’m afraid that the prosecutor may have set up a powder keg tomorrow in order to curry favor today.
All this serves as an introduction to the following video from MSNBC’s Hardball in which Alan Dershowitz unloads on Florida’s Special Prosecutor Angela Corey for the lackluster affidavit her team submitted:
I’m actually a little surprised that MSNBC didn’t jerk him off the air mid-sentence. Then again, maybe they’re trying to mend the NBC brand after the Today Show’s absurd edit of the Zimmerman 911 call. Regardless, I think his explanation is a pointed summary of the flaws in the prosecution’s filing. It is particularly damning that the affidavit didn’t even bother to pay lip service to the idea that there might just be some evidence on the other side of the case.
Hot Air offers some interesting speculation on the prosecution’s decision:
I don’t understand Corey’s strategy in charging him with murder two. Maybe she thinks Zimmerman will plead to a lesser charge, but if it’s anything less than manslaughter she’s going to take tremendous heat for having gone too easy on him. That’s a weird predicament for a politically-minded prosecutor to put herself in. She’ll take some heat even if she gets him to cop to manslaughter, in fact, since manslaughter is a crime of simple negligence and people who want him prosecuted believe Zimmerman’s far more morally culpable than that. (This is all assuming he’d be willing to make a deal, which, given the weakness of the charging instrument, he probably isn’t.) In fact, I also don’t get why she insisted on filing an affidavit of probable cause instead of taking the case to a grand jury. If they refused to indict him, she could have blamed them for him getting off and claimed she’d given it her best effort. As it is, if Dershowitz is right, her own affidavit’s about to be tossed by a judge and then she’ll have to answer for why she couldn’t even get to first base on a conviction.
Maybe her plan is to use the judge here as a get-out-of-tough-cases card? She probably knows she can’t get Zimmerman on murder two, but she also doesn’t want to be the one to have to break that to the public. She also doesn’t want to have to try to prosecute him on murder two if the evidence isn’t there, which would be a risk if the grand jury did indict him. So instead she’s taking the middle path: Go directly to the judge with a weak charging instrument and rely on him/her to throw it out.
Allahpundit’s last point is interesting. Given the atmosphere that’s been drummed up, I’m sure she doesn’t want to be the one to tell people that murder charges aren’t going to happen. It’s possible that she’s trying to garner the political support for going after Zimmerman guns blazing while setting up some unfortunate judge to be the inevitable fall guy. If so, however, she ought to take a look at Mike Nifong, the disgraced former DA who was responsible for the Duke Lacrosse debacle. He brought charges he knew were unsubstantiated in a cynical ploy to shore up his reelection bid; since then, he has lost his position and his law license and ultimately filed for bankruptcy (in a callous attempt to avoid lawsuits from the players he defamed).