Is the necessary inclusion of manslaughter embedded in Florida law? I was under the impression that there was a specific agreement between prosecution and defense that murder 2 was it in this case - no manslaughter inclusion.
I am nowhere near a lawyer, just trying to understand.
A judge should only instruct on manslaughter if the evidence would be consistent with such a verdict. I really really dislike the notion that a judge should interpret the evidence, but in the case at hand both the defense and prosecutor have effectively stipulated that TM's death was not accidental. If both prosecutor and defendant agree that the evidence is inconsistent with a manslaughter, I can't see any basis whatsoever for the judge to disagree.
Yes.
See this June 29, 2013 post which refers and links to State v. Wimberly, 498 So. 2d 929 (Fla. 1986); and this post from earlier the same day, referring to Florida Rule of Criminal Procedure RULE 3.510. Finally, see this post from the same day which enumerates the necessarily included offense (manslaughter) and the permissive included offenses (also referred to as "Category Two" offenses), and a cite to Jamerson v. State that describes the conditions for giving a category two, permissive lesser included charge, to the jury.
-- I was under the impression that there was a specific agreement between prosecution and defense that murder 2 was it in this case - no manslaughter inclusion. --
If the jury gets the case, they must be given the manslaughter instruction. Nobody has discretion on that, not even the judge.
I don't know if, when the judge gets the case on a motion for judgment of acquittal, she must also consider manslaughter. The statute and conforming rule refer to "the jury." I haven't looked for case law on what happens if the judge takes the decision out of the hands of the jury because the state has failed to meet its burden. I don't think knowing that law matters in the Zimmerman case because even if the law says Zimmerman is entitled to a motion for judgment of acquittal, this judge won't follow the law in that regard.