Then something changed.

The prosecution asked the judge for something called a “lesser included offense.”

What does that mean and why are they asking for it?

Under the law in most states, at the end of a trial, the defense or the prosecution may ask that the judge add another, new charge that would be considered a “lesser included” offense.  The rules tell the judge the new charge can only be added if there’s some evidence that would support the jury finding the defendant guilty of something less than the full, original charge.

In Mr. Zimmerman’s case, he’s charged with 2nd degree murder.  The prosecution has asked for and the judge has agreed, that the less serious charge of Manslaughter be added for the jury to consider.  Now, there are three choices for the jury: 2nd Degree Murder, Manslaughter, or acquittal.  Manslaughter is a type of homicide but it’s closer to accidental killing than the 2nd Degree Murder which means the jury must find that Mr. Zimmerman intentionally wanted to kill Trayvon Martin.  To find Mr. Zimmerman guilty of Manslaughter, the jury must find that he killed Mr. Martin but that it was almost an accident, that Mr. Zimmerman didn’t intend to kill the other man.

Why would the prosecution ask for this?

Usually, they’re worried the jury will acquit the defendant on the original charge because of a weak case.  I suspect that’s why the prosecution asked for the lesser included offense here.  They are worried the jury would not convict if given only one offense and Mr. Zimmerman would go free.   That’s supported by the fact the defense fought against the inclusion of the lesser included.  In my experience, they really didn’t have much to argue about.  If the judge thinks there’s some evidence that the jury could use to find Mr. Zimmerman guilty of the less serious charge, the judge almost has to include it.  Which she did.

The defense must have been confident enough that the government’s case was so weak on the 2nd Degree Murder, they were willing to “go for broke” and hope the jury would acquit Mr. Zimmerman.

After the years I’ve defended criminals in trial, it’s almost always a good idea to include something less serious.  I think juries often want to “split the baby” and give a little to both sides.   In Mr. Zimmerman’s case, his lawyers obviously thought differently and were willing to take the risk of all or nothing.

We’ll see what the jury decides.

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