This morning Judge Debra Nelson ruled that the jury in George Zimmerman's trial may consider manslaughter as a lesser included offense in addition to the charge of second-degree murder brought by the state. Florida law defines manslaughter, which carries a maximum penalty of 15 years in prison, as "the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification." Second-degree murder, which carries a maximum penalty of life in prison, is "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." According to the standard jury instruction, an act "imminently dangerous to another and demonstrating a depraved mind" must be "done from ill will, hatred, spite, or an evil intent" and indicate "an indifference to human life." Because the prosecution has struggled to show that Zimmerman's shooting of Trayvon Martin meets that description, it was keen to give the jury the option of manslaughter, which requires nothing more than concluding beyond a reasonable doubt that the shooting was not justified. The defense was equally keen to limit the jury's choices to guilty or not guilty of second-degree murder, fearing that the option of manslaughter might look like an appealing compromise even if the prosecution's evidence for that charge falls short of proof beyond a reasonable doubt (which it does).
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.
Update: Judge Debra Nelson just ruled that the allegations and evidence against Zimmerman do not support a third-degree murder charge based on child abuse, so the jury will not be given that option.