Today can only be characterized as an utter debacle for the prosecution in Florida v. Zimmerman. Besides the testimony of a couple of highly professional law enforcement witnesses, the testimony of the the other State witnesses ranged from signing George Zimmerman’s praises, to acknowledging the utility of following a suspicious person from a distance, to being utterly discredited by razor sharp cross-examination of the defense.

Before we even get to the disaster that was the State’s witnesses, however, we first have to discuss this morning’s hearing and the extent to which it evanescent is the State’s case against George Zimmerman.

State: Zimmerman Is So Good, He Must Be Bad

Following on a disagreement between the parties yesterday, before the jury was seated the Court held a hearing on whether to admit into evidence a half-dozen or so calls made by Zimmerman to the police in the six months leading up to the shooting. In each of the calls Zimmerman was playing the diligent Neighborhood Watch role, calling the non-emergency number (as trained) to report a suspicious person in the neighborhood. There is not the slightest suggestion of misconduct, ill will, hatred, etc. in any of the recordings.

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State Prosecutor Mantei

The defense objected to the admission of these recordings on the basis that they were either not relevant–having occurred so long prior to the event in questions–or were “prior acts” evidence of the defendant which is normally inadmissible.

The whole thing looked odd, however, because the rules of evidence prohibiting most prior acts is intended to keep out prior bad acts of a defendant, not prior good acts. Why would the State be looking to submit prior good acts?

The reason became clear in the State’s argument this morning for why they are demanding that the recordings be admitted. The recordings, they claim, will show that Zimmerman had a well-established pattern of properly following all the Neighborhood Watch Program guidelines on prior calls–but this time, with Trayvon Martin, he broke.

The State analogized to a situation in which a spouse is repeatedly cheated upon, and finally experiences the “straw that broke the camel’s back” (that’s the State’s phrase) and strikes out at their cheating partner.

Zimmerman, the State seeks to argue, was frustrated by the fact that so many of the suspicious persons observed and reported to the police by the Neighborhood Watch participants repeatedly managed to “get away.” Finally, he couldn’t take it an more, their theory runs, so he decided to “take the law into his own hands” with Trayvon Martin. Zimmerman, the State seeks to argue, wasn’t truly calm on those prior calls, he only appeared to be calm. Inside he was a seething cauldron of hate just looking for the innocent young black boy against which he could release his righteous anger.

The fact that the State would launch this line of argument in the first day of substantive testimony suggests powerfully that they have an almost total lack of direct evidence of second degree murder in this case. The theory they seek to advance with the prior, entirely innocuous, calls to police is entirely circumstantial–and it’s on that circumstantial evidence that they seek to convince a jury, beyond a reasonable doubt, both that George Zimmerman committed murder with a “depraved mind” and that his actions were not in lawful self defense.

At the time the Court recessed at the close of today Judge Nelson had not yet decided whether to admit the prior recordings or not. Either way, however, it hardly seems that a half-dozen recordings of Zimmerman calmly phoning the police precisely as he had been instructed by them can much advance their charges of second degree murder.

A Human Train Wreck: The State’s Witnesses

State witness Rumph made a brief re-appearance from yesterday, but until the Court rules on the prior police calls she won’t have much impact one way or the other, so we’ll pass her by.

Wendy Dorival, Sanford Police Department, Neighborhood Watch Program

Ms. Dorival works for the Sanford Police Department and played a major role in coordinating with George Zimmerman to establish the Neighborhood Watch Program at the Retreat at Twin Lakes community. Her role is to instruct the residents on how the NWP works, and provide guide lines on its operation.

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State witness, Ms. Dorival, NWP coordinator

Recall that one of the key elements of the State’s theory of the case is that Zimmerman is a “wannabe cop” who “took the law into his own hands.” The expectation was that this witness would define the limited scope of the NWP, and the State could then illustrate how Zimmerman had aggressively over-stepped these limitations in “profiling” and “following” Martin.

Accordingly, the State started asking Dorival about whether NWP participants are advised to “follow” and “confront” suspicious persons, and she affirmed that the participants were merely supposed to be the “eyes and ears” of the community and that actual enforcement should be left to the police. If they saw a crime they should call 911, if they saw merely suspicious behavior they should call the provided non-emergency number.

West managed the cross-examination for the defense.

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Defense Attorney West

He asked if she had any personal knowledge of the drivers behind Twin Lakes starting a NWP,. Dorival confirmed that she had checked with the Sanford Police Department’s crime statistics and confirmed that there had been a spike in robberies and that the neighborhood’s concerns about crime were genuine. She was also aware of the recent home invasion.

He then explored her experience interacting with George Zimmerman. Was he polite, courteous, respectful, he asked?

Oh, yes, Dorival answered. Every time.

That was the first indication that this witness might spin against the State’s interests–and an eruption of confirmatory testimony was about to emerge.

Dorival naturally thought it was great that Zimmerman wanted to start a NWP. Indeed, so committed was she herself to the NWP initiative that she took the lead at the Sanford PD even though it wasn’t really her “day job” there.

Further, she thought it was great that Zimmerman was pursuing a degree in criminal justice. In fact, she had been so impressed with him that she had tried to recruit him for the Sanford PD’s “Citizen on Patrol” program.

“Citizens on Patrol?” asked West. “What’s that?”

It turns out that it’s a program in which the Sanford Police Department would provide Zimmerman with a civilianized patrol car and a uniform of sorts, and provide additional training that would allow him to effectively conduct patrols of his neighborhood. In contrast, the NWP program was far less pro-active, involving only observation and reporting.

Surely the Zimmerman described by the State as a “wannabe cop” seeking to “take the law into his own hands” and “profile” and “chase” unfamiliar black boys would fairly leap at such an opportunity. It was as close to being a police officer as Zimmerman was ever likely to get, the chance of a life time.

Zimmerman declined the opportunity.

This did not, however, spoil Dorival’s respect for Zimmerman. When asked by West if there was anything about Zimmerman’s demeanor that “raised any red flags” for her, she answered in the negative. George, she said, struck her as very professional, perhaps a little meek, but a man who was really committed to making his community better.

It bears reminding that this is the State’s witness, intended to help convict Zimmerman of second degree murder and a sentence of 20 years to life in prison.

When asked by West if the NWP gave lessons in the law to participants, Dorival said they did not, they mostly told people not to confront anyone or follow anyone.

West focused in on that comment, asking, “when you say the shouldn’t follow someone, you’re not saying that if you see someone suspicious that you can’t follow at a distance to gather information, are you? You don’t tell people that they can’t follow someone from a distance, do you?”

“That’s right,” Dorival agreed, she was not saying that, but rather that it was not a good idea to engage someone.

West continued, asking, “and when you say on your slide that the NWP participants are not intended to be some kind of vigilante police, you’re not saying that if they are attacked they’re not allowed to defend themselves, are you?”

Of course not, Dorival replied.

Do you talk with them about firearms specifically, West asked?

No, it’s not my place to tell participants not to carry a gun, that’s their right.

West then explored some hypothetical situations and asked her if they were the types of scenarios in which she would advise a NWP participant to report suspicious behavior to the police. He then went on to describe precisely the behavior in which Trayvon Martin had been engaged–wandering aimlessly in the rain, looking into buildings, walking outside of normal paths in areas one would not normally expect a person to walk. Oh, definitely, answered Dorival, that’s exactly the kind of behavior we encourage NWP participants to report to the police.

(As an aside, the fact that the State did not immediately object to this line of questioning is nothing short of shocking. It is unimaginable that they could not have seen how terribly destructive this would be to their theory of the case.)

There was more, but I think the above communicates the point. It was almost as if the court clerk had accidentally placed a defense witness on the State’s witness roster.

Donald O’Brien, President Twin Lakes Home Owners Association

The next up of the State’s witnesses was Donald O’Brien, then and still the President of the Twin Lakes HOA. It is worth keeping in mind that the HOA has already settled a reputed 7-figure-plus law suit with the Martin family and advisors. It would hard to blame O’Brien if he felt that, all in all, it would have been a lot cheaper to let Martin rob someone’s house.

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State witness, Donald O’Brien, Twin Lakes HOA President

It was pretty clear from O’Brien’s tone and manner that Zimmerman did not rank high among his most favorite people. He emphasized that Zimmerman had taken the lead on starting the NWP program without much, if any, involvement by the HOA (although the HOA did not prohibit the program, and did become involved in its implementation). The State’s line of questions sought to emphasize Zimmerman as a kind of “loose cannon” who had launched the NWP program on his own, with little neighborhood involvement, almost as a kind of private police force.

Then this witness started off the rails of the State’s theory of the case.

When the community was having problems with people disobeying the HOA’s parking rules, he’d asked for help in setting up a parking committee for enforcement. Who stepped up and volunteered to help on this when few others did? George Zimmerman.

He also recounted an interesting story about a particular robbery in the community. What made this burglary memorable to O’Brien was that he had actually gotten into a conversation with the soon-to-be-burglar only a short time before the crime occurred. The burglar–whom O’Brien described as a 17-year-old black man–chatted with O’Brien a while, and later was seen by some nearby construction workers leaving a townhouse later discovered to have been burgled.

A few days later, these same workers observed the same 17-year-old black man wandering through Twin Lakes again. They contacted the police, and the burglar was successfully arrested.

Then he made an astonishing statement, given that he was a State witness and given the State’s theory of the case.

The arrest was made possible, he said, because the construction workers followed the suspicious person from a distance. O’Brien was, he said, so pleased with the successful arrest that he had sent the workers a letter of commendation from the HOA.

O’Mara managed cross-examination for the defense, and took to O’Brien in a friendly but incisive manner. He knew what he wanted from this witness.

You’re aware, he asked, that Zimmerman helped with the NWP, and even with you on your parking committee. Did it seem strange to you that Zimmerman would help you? No, answered O’Brien.

Did you have any concern that Zimmerman had helped set up the NWP? I didn’t think we needed that program, answered O’Brien. But you acknowledge that there had been a rash of burglaries in the neighborhood, and even a home invasion? “Yes, said O’Brien.

Again, there’s more, but you get the point.

Thankfully for the State, that brought us to the lunch recess. Following lunch, the State began to bring some law enforcement officers to the stand. Although their testimony was interesting, it was not nearly as interesting as some other witnesses, so I’ll defer on the LEOs until later in this post. As a quick note, however, the LEOs in question were Sergeant Anthony E. Raimondo, Jr., a Marine, police sergeant on the Sanford PD, and a sniper on the Seminole County SWAT Team, and Diane Smith, a Crime Scene Technician.

Selene Bahadoor, “Ear”-Witness for the State

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State witness, Selene Bahadoor

 

The next, shall we say, interesting witness called by the State, and the last witness of the day, was Selene Bahadoor. She was one of the residents of Twin Lakes whose townhouse bordered on the scene of the altercation between Zimmerman and Martin, and who took note of the event as it happened. As such, she was really the first substantive witness to date who would, purportedly, be able to share some direct knowledge of the events as they unfolded.

Bernie de la Rionda led the direct on Bahadoor. As they talked she described how she had been in her kitchen on the first floor, cooking, when she heard a noise that sounded like “no” or “uhhh” from outside. She also heard some movement, like people running. Importantly, it sounded as if the running was some kind of pursuit, rather than say children playing a game of tag, because the sound progressed “from left to right”.

This was really the first testimony that could begin to solidify the State’s case. Recall that it is the State’s theory of the case that Zimmerman first “profiled” and then “chased” Martin before murdering him. There had been until now no direct evidence of any “chase”, and it seemed that Bahadoor was about to provide that essential link.

There was much discussion then about how much, if anything she was able to see of the events, but the key piece of her testimony was this matter of her hearing the sound of motion moving “from left to right,” as if in pursuit.

O’Mara handled the cross-examination of Bahadoor, and it was very quickly apparent that this person who had promised to be the State’s star witness of the day–and perhaps of the entire trial–was about to be have her testimony and credibility utterly, indeed humiliatingly, crushed before the jury.

“Who,” asked O’Mara, “was the last person with whom you discussed your testimony before today?”

Bahadoor replied that it had been with one of the State’s investigators the prior Thursday.

“And you went over your prior statements in this case?” “Yes,” she answered, “to be ready for trial.”

“And one of those statements was the first one taken very shortly after the shooting?” “Yes.”

“And in that statement did you mention this motion that you heard moving from left-to-right?”

And overcoming a lot of rather pathetic dancing on Bahadoor’s part about whether a “transcript” is a “written statement”, she was soon obliged to admit that she had not mentioned the left-to-right motion in that first statement, when O’Mara handed her the document and asked her to locate any reference.

He followed by handing her another transcript, based on an interview a few weeks later between Bahadoor and then lead Investigator Chris Serino. “Where in that transcript do you mention this “left to right” motion?” Again, after a lengthy and painful to watch period of silence Bahadoor was obliged to admit that she had’t mentioned the left-to-right motion in that interview, either.

O’Mara then pulled out the transcript of the defense’s deposition of Bahadoor. And again she was obliged to admit that she hadn’t mentioned the critical “left-to-right” motion there, either.

Finally O’Mara asked her, “When was the first time that you told anyone about this “left-to-right” motion you’ve described to us today. Is it in fact today, here in court, the first time you’ve ever told anyone about it.”

“It could be,” answered Bahadoor quietly.

O’Mara then asked if it would be fair to say that Bahadoor had sympathy for the Martin family. “I have sympathy for both families,” she answered, somewhat aloof.

“But,” noted O’Mara, “you “liked” the Facebook page for the Martin family, but not the Facebook page for the Zimmerman family.” The opportunity never presented itself for the Zimmerman family page, answered Bahadoor.

The defense soon rested, and Bernie de la Rionda returned for re-direct. In essence, his re-direct consisted mostly of asking Bahadoor if any of the questioners in the prior interviews had thought to ask about any left-to-right motion. Bahadoor said they had not.

Then de la Rionda asked if it wasn’t true that Bahadoor didn’t even want to be here, that she wasn’t looking to be famous, to be on television, that she hadn’t even come forward to the police in the immediate aftermath of the shooting. Bahadoor agreed that was all true.

O’Mara, in turn, returned for re-cross, and he was tough as ever.

“Mr. de la Rionda,” he noted, “suggests that you didn’t want to run out and be a witness on national TV. But isn’t it true that you’ve actually been on national TV about this case?”

“No,” Bahadoor objected, “I did a video, but they never aired it.”

“But you wanted to be on TV. A television journalist interviewed you on camera for half-an-hour, you talked all about the case with them.”

Bahadoor replied that in the end she had decided against letting it be aired, that she had only even considered it in order to bring attention to what had happened.

“Because you thought that George Zimmerman killed Trayvon Martin improperly, and should be prosecuted,” O’Mara suggested.

“I never said that,” replied Bahadoor.

“But you signed this petition, did you not, calling for the “prosecution of the killer of our son Trayvon Martin.”

And, indeed, Bahadoor was obliged to identify her signature on the copy of the petition held out to her by O’Mara.

O’Mara closed by remarking, “I’m just curious. Having never before mentioned this business of the left-to-right motion, I’m wondering how it is that you knew that today of all days was the right day to first mention it.”

Bahadoor had no coherent reply, and was dismissed.

Sergeant Anthony E. Raimondo, Jr., Sanford Police Department

Sergeant Raimondo testified immediately after lunch and was a consummate professional law enforcement officer. For the State’s purposes his testimony was rather procedural, as he was the senior officer n the scene of the shooting until the investigators arrived. He also was used by the State to play up the “suffering of Trayvon” angel, because it was Raimondo who attempted to provide life-saving CPR to Martin. The State had Raimondo recount his efforts to save Martins’ life in detail.

More interesting, however, was how the the defense made use of Raimondo’s testimony, in a quite subtle way. Most of the O’Mara’s cross-examination was not particularly substantive, but at one point he asked Raimondo about how he liked being a police officer. Raimondo replied that he found the work extremely satisfying, to play a role in helping to better the community. Just like Zimmerman with his NWP, I couldn’t help but think. When asked about his training to be a police officer, it turned out that Raimondo had majored in criminal justice. Again just like Zimmerman.

O’Mara’s low-key questioning on these points was a very successful and compelling means of highlighting how many of Raimondo’s admirable and positive qualities were, if only on a lesser scale, also possessed by Zimmerman.

Many a lawyer would have missed that opportunity, but the defense scored a solid hit here, again.

Diane Smith, Crime Scene Technician, Sanford Police Department

Ms. Smith played a key role in documenting and gathering the evidence at the scene of the crime. The State made use of her testimony to undercut the notion that Martin may have been reaching for Zimmerman’s gun–there was no “touch DNA” of Martin’s detected on the weapon–and to minimize the apparent severity of Zimmerman’s injuries by showing photos taken by Smith only after Zimmerman had been cleaned up by paramedics on scene and then again washed himself clean at the Sanford police station rest room.

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It was during Ms. Smith’s testimony that a great many pieces of evidence were admitted into the trial, along with a great many crime scene photos.  A few of each are included here to give a sense of the questioning of this witness.

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Zimmerman face police station

Zimmerman Trial State's Exhibit 56 - back of Zimmerman head

West handled the cross-examination of Smith, and was once again very solid, indeed. He went back through each of the “clean” photos of Zimmerman’s injuries that the State had sped through, and noted in his usual steady manner each and every bump, bruise, abrasion, and bit of blood. It was a very effective demonstration.

He also clarified the limitations of many of the claims the State seemed to be seeking with regard to the forensic evidence. West noted that the rain that night could have washed away any blood and that in any case no blood-detecting chemicals were used that night. He got Smith to agree that the fact that no touch DNA of Martin’s was found on the gun did not necessarily mean he hadn’t touched the gun–the contact might not have left enough DNA to detect, or it might have been wiped off. He also noted some missteps in the collection and preservation of evidence, particularly clothing, that would seem to further limit the utility to the State of the forensics evidence.

OK, that’s about it for tonight. We’re doing it all again tomorrow, of course, be sure to join us.


Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense,” now available in its just released 2nd Edition, which shows you how to successfully fight the 20-to-life legal battle everyone faces after defending themselves. UPDATE: July 5, 2013 is the LAST DAY to take advantage of the 30% pre-order discount, only $35, plus free shipping. To do so simply visit the Law of Self Defense blog.

BREAKING: “The Law of Self Defense, 2nd Edition” is now also being carried by Amazon.com, at list price but with a commitment for 2-day delivery.  A Kindle version to come within a week or so (I hope).

Many thanks to Professor Jacobson for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!

You can follow Andrew on Twitter on @LawSelfDefense (or @LawSelfDefense2 if I’m in Twitmo, follow both!)on Facebook, and at his blog, The Law of Self Defense.