In July 2013, during the trial of Florida vs. Zimmerman 1, there was a lot of confusion about just what charges George Zimmerman faced for killing Trayvon Martin. I wrote a brief recap “GZ: Murder vs Manslaughter?” to clarify the charges. In some ways history seems to be sadly repeating itself. Again an unarmed Florida teenager has been shot to death, again the killer is claiming self-defense, and again the public is understandably confused about just what charges the accused faces. The names have changed, the facts are different, but the legal issues, though not identical, are remarkably similar.
In Florida vs Dunn2, Michael David Dunn is charged with killing Jordan Russell Davis, and with firing 9 rounds from a 9mm gun into the vehicle in which Davis’ three friends escaped fatal injury. On Nov. 23, 2012 Florida prosecutors brought charges of Premeditated First Degree Murder (1 count), Attempted First Degree Murder (3 counts), and Discharging a Firearm into an Occupied Vehicle (1 count) against Michael Dunn. The State charged Michael Dunn with 5 counts via indictment, specifically:
But those 5 named counts are not the only charges that Michael Dunn potentially faces. According to the Florida Schedule of Lesser Included Offenses5 Florida law allows for two types of Lesser Included Offenses: Category I [Mandatory] and Category II [Discretionary]. The FLvsMD jury must consider all Mandatory Lesser Included charges, and may consider Discretionary Lesser Included charges.
So although the only mandatory lesser offenses that must be given to the FLvsGZ jury are second degree murder and manslaughter (for 1st° murder), and attempted second degree murder plus attempted voluntary manslaughter (for attempted 1st° murder), either prosecution or defense may request discretionary lessers as well.
Of course, the jury could also find Dunn not guilty of all charges, or convict him on any one of several discretionary lesser included charges. | Update: Neither Prosecution nor Defense counsel requested any Discretionary Lessers at the charge conference. So only the 4 enumerated Mandatory Lessers will be presented to the jury for consideration. (Essentially, ignore the far right column on the chart above; consider only first three columns from left.)
Elisabeth Epps earned her JD from the University of Virginia School of Law in 2011. Follow her, her trial coverage, and her random rants/raves about basketball, dating, and other assorted miscellany: @ElisabethEpps on Twitter.
How could this happen? How did a killer walk away as a free man after murdering an unarmed boy? Why was the verdict not a conviction? What was this jury thinking? After George Zimmerman was found Not Guilty of any criminal liability for killing Trayvon Martin (Florida vs. Zimmerman1), the disbelief seemed nearly universal. But to many who carefully watched the trial, the better question was: How could a jury not acquit? Given the inexcusably poor job by the state of Florida, coupled with the thorough zealous advocacy by Zimmerman’s defense team, how could reasonable jurors do anything else but acquit Zimmerman?
QUESTION: What crime(s) could George Zimmerman be convicted of for killing Trayvon Martin?
ANSWER: In Florida vs. Zimmerman1, the jury could do 1 of 3 things:
While Florida only specifically charged second degree murder, FLvsGZ jury has more options than simply acquitting or convicting of second degree. The six-member jury could find Zimmerman not guilty of second degree, yet still find him guilty of the mandatory lesser included offense of manslaughter, or could convict on any one of several discretionary lesser included charges.
Kids. If you have them, you’ve been embarrassed by them; if you’ve raised them, they’ve disappointed you.1 Though all of us lucky enough to call ourselves parents have been embarrassed and disappointed by actions of our children, few amongst us have the misfortune of being so publicly embarrassed and disappointed as Don West2 must have been on Fri. June 28, 2013, on the 5th day of Florida vs. Zimmerman3.
While Mr. West should have been breathing a slight sigh of relief after three straight prosecution witnesses4 went far better for the defense than could have been expected, and preparing sans familial distraction for week two of trial, he was instead briefly sidelined by the antics of his well-meaning but misguided 23-year-old daughter, Molly West.
Some time during the first week of FLvsGZ, Ms. West took to Instagram to share with a few million of her closest friends a photo of herself, her sister Rachel, and their father eating soft-serve ice cream after court. Had she stopped there, we would not be discussing her (poor) judgment.
Unfortunately for Mr. West, his daughter did not stop at merely uploading the selfie her father’s outstretched arm reveals that he took. Instead of leaving the photo uncaptioned, or better yet leaving it offline entirely, Ms. West captioned the family photo “We beat stupidity celebration cones.” As if that insensitive moniker weren’t enough, she added hashtags #Zimmerman #Defense and #DadKilledIt5 the former an easy way for anyone to find all photos tagged about FLvsGZ; the latter a cringe-worthy gaffe.
Just a day ago the world was criticizing the public behavior, questioning the judgment6, and speculating as to the proper rearing7 of prosecution witness Rachel Jeantel [Rachel Jeantel: When Keeping It Real, Goes Wrong]. Enter Molly West: a young woman not from a marginalized community, not lacking in education, who despite all the home-training that presumably wealth and familial success would afford, demonstrated that poor judgment crosses all color and class lines.
Shame on Molly West. Intentionally or not, her post came across to many observers as callous, cruel, and utterly uncalled for. Ms. West should know better. She embarrassed herself, her family, and did a disservice to George Zimmerman.8 I was repulsed by Molly West’s poor judgment in choice of captions/hashtags, and said so immediately:
Criticism was swift and sweeping: The Root posted a misleading headline “Don West’s Faux Pas“, alternately “Don West: Daughter’s Instagram Controversy“- the latter a fair description, the former an unfair characterization. Molly West is not Don West; family or not, she is neither Mr. West’s agent nor spokesperson. It’s unconscionable that so many ostensibly thoughtful people are inexplicably incapable of separating the two.
While Ms. West’s bad judgment of course reflected poorly on her father, she should not have been deemed his representative. The Grio went beyond misleading with its inflammatory headline: “George Zimmerman’s Attorney Don West Took The Most Offensive Selfie Of All Time.” Huh? There is nothing offensive about the “selfie” itself. What is offensive is people’s inability to distinguish actions of adult children from those of their parents.
The Wests went to Chick-Fil-A, not to enjoy some leisurely celebratory multi-course meal. Whether taken during trial or not, the photo is not “offensive.” The man is not poppin’ bottles or jumpin’ on couches; he’s eating ice cream, in Florida during June FFS. Nothing in the photo itself can reasonably be construed as Mr. West “celebrating.” The only indication of “celebration” is his dim-witted daughter’s unfortunate caption. It would be utter nonsense to take an IG caption at face-value as if it were encouraged or authorized by Mr. West, as if he were even aware.
Again and again I heard the question posed: What lawyer celebrates publicly during an ongoing trial? Um, none. Which is why it’s asinine for people to think Mr. West would do so. Ask a better question: What 20-something posts something stupid on social media unbeknownst to her unwitting family or friends? Lots. See, e.g. Molly West.
So give Mr. West a break; give the man the benefit of the doubt. Does anyone with a grip on reality actually believe Mr. West was out “celebrating” in the opening days of the biggest trial of his career? Is anyone who thinks Mr. West ok’d that post even remotely familiar at all with parental dynamics of young adults vs the relative lack of savvy social media skills of the 50+ set? One wonders…
Trial is Hell. Even when your family doesn’t humiliate and disappoint you, even when your every move is not scrutinized by rabid round-the-clock media, even in the most mundane non-sensationalized settings, jury trial is harrowing on lawyers. It’s like playoffs for athletes: sleep and diet are a wreck. Nothing else matters: you barely see your family… and when you do, you don’t expect them to act recklessly. The best trial attorneys prepare for every contingency: technical difficulties, surprise witnesses, you plan and plan… but you don’t expect to have to plan for this.
Defense attorneys are already maligned as “bad guys.”9 Ms. West just made her father’s already difficult job harder; her antics could have compromised her father’s ability to do his duty to his client. Mr. West should be embarrassed too, even apologetic. But he should not be held responsible for the actions of a 23-year-old woman, even one that he raised. Still, in an abundance of deference to discretion that his daughter did not exercise, Mr. West should:
In the wake of the avoidable brouhaha, Mr. West issued a statement that said simply, perfectly:
“Sometimes we’re deeply disappointed by the things our children do. But we love them anyway, and we move on.” – Don West.
And he’s right. He should be disappointed. He should love his daughter anyway, and he- and we- should all move on. I appreciate Ms. West’s fierce loyalty and celebratory support, but next time she wants to encourage her beleaguered father she should post an inspirational photo on the family frig, not humiliate her father by exposing her poor judgment to the entire world via social media.
“It could’ve been my baby…” Hardly a day has passed since Feb. 26, 2012 that I have not looked at my only child and ached to imagine Sybrina Fulton’s pain. I have a 16-year-old son1. I am not here for the senseless slaughter of innocent black teenage boys by armed vigilantes. Period. Full Stop. I can not defend Trayvon’s death; I do not defend George Zimmerman2; and unlike many educated, intelligent, sensitive souls who watched the first week of FLvsGZ3, I will NOT defend Rachel Jeantel. STOP DEFENDING RACHEL JEANTEL.