Once again, it was simply not a very good day at all for the prosecution. The primary State witnesses today were Rachel Jeantel, Jenna Lauer, and Selma Mora. The first had her credibility substantively destroyed, the second was powerfully–almost humiliatingly–co-opted by the defense, and the third provided testimony entirely consistent with the defense’s theory of lawful self-defense. There was also some (I expect temporary) hubbub that O’Mara may have inadvertently opened the door to allow the State to introduce evidence of specific prior bad acts by George Zimmerman, and I address that in detail, as well, below.

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Rachel Jeantel, State witness

With that said, let’s get to it:

Rachel Jeantel, Star “Ear”-Witness of the State

Much of the day was consumed in West’s continuing cross-examination of Rachel Jeantel, the State’s star “ear-witness.” She was purportedly on the phone with Martin up to the final moments of his confrontation with Zimmerman, and has over time come to claim an increasing amount of knowledge of the details of that confrontation.

It has become common knowledge that Jeantel has perpetrated a number of lies on this case, both under oath and otherwise, and West made certain to touch on each of these, albeit with a relatively light hand. She lied about her age–she was 18-years-old not 16-years-old at the time, she lied about why she did not attend Martin’s funeral or wake, she lied about her name to Martin’s mother and others, and so on.

For many of these lies she offered a relatively innocuous excuse–she didn’t go the funeral because she doesn’t like to see dead bodies, for example. But the sheer number and variety of them cast Jeantel as someone who was perfectly comfortable creating a fabrication if it served her convenience or purposes.

What most damaged her credibility, however, was not West’s exposure of these numerous falsehoods. Instead, West took a far more clever approach to his cross-examination of Jeantel. Many legal (and non-legal) pundits had wondered how West would walk the fine line of impeaching Jeantel’s testimony without overreaching and causing the jury to become empathetic to the poor young woman in a difficult situation not of her making.

West solved that dilemma by attacking Jeantel’s credibility not from the front, but from the flanks. It was not Jeantel who had done anything wrong, he suggested. Indeed, he praised Jeantel for her obvious sympathy for the Martin family, and especially Sabrina Fulton, Martin’s mother, and for the great care she took to avoid further aggravating Fulton’s tremendous emotional pain at the loss of her son.

In the next sentence, however, he cut the heart out of any credibility her testimony might have had. The great strength of Jeantel’s testimony was based in her claims of what she had overheard martin and Zimmerman say to each other. In earlier statements–including a letter to Fulton and a recorded phone interview with family lawyer/advisor Crump–she had said that Martin had first asked Zimmerman, “Why you following me,” to which Zimmerman had responded, she said, “What are you talking about?” Such a response is clearly not confrontational, but rather defensive, in nature, the utterance of someone who is confused by a sudden act of confrontation.

On April 2, however, Jeantel had a an interview under oath with Mr. de la Rionda, in which her story changed considerably. Here, for the first time, she recounted Zimmerman’s response as being quite aggressive, and much more in line with the State’s theory of the case that Zimmerman had “profiled,” “followed,” and murdered Martin.

Here, for the first time, Jeantel claimed that she had hear Zimmerman say not the defensive phrase, “What are you talking about?” but much more confrontational phrase, “What are you doing around here?” In this new telling, Zimmerman became for the first time in Jeantel’s testimony, aggressive and territorial, much as a high-strung dog might confront someone or something encroaching on its property.

It is important to keep in mind that up to this point the Sanford Police Department had concluded that Zimmerman’s explanation of lawful self-defense was consistent with the evidence, and that there did not exist probably cause for an arrest. It was precisely for this reason that Zimmerman had not been arrested.

Jeantel’s revised statement, however, was much more in line with what the State need to support the arrest and prosecution of ZImmerrman. Indeed, Jeantel’s newly revealed testimony formed the very backbone of the State’s affidavit of probably cause, the legal document that drove Zimmerman’s arrest and prosecution. The credibility of the newly emerged information began to degrade rapidly as West explored the circumstances in which Mr. de la Rionda had taken her statement.

Jeante’s statement was not taken by de la Rioida at the Jacksonville State Prosecutor’s office, where he had his own office worked, nor at any Florida Department of Law Enforcement (FDLE) facility, nor the Sanford Police Department, nor even Jeantel’s home, nor some other neutral location.

Instead, Jeantel was picked up at a friends house by a two-car caravan consisting of de la Rionda, a State prosecutor’s office investigator, Sabrina Fulton, and Crump (this last in allegedly the alternative vehicle to the car in which Jeantel was riding).

They travelled together in this way to sit in the living room of the home of Sabrina Fulton, the very home in which Trayvon Martin had lived until his mother had recently sent the troubled and troublesome youth to go live with his father.

Present for the taking of that statement was de la Rionda, of course, and one or two FDLE personnel. Also present was Crump and some other family lawyers/advisors. Martin’s father was not present in the room, but was apparently present somewhere in the home.

And, sitting directly next to Jeantel was Martin’s mother, Sabrina Fulton, with tears in her eyes. A more coercive environment for the taking of of a witnesses statement is hard to imagine.

Further aggravating the coercive nature of the environment was de la Rionda’s manner of questioning. It takes no allegation of misconduct to note that even during this trial de la Rionda is prone to ask leading questions, and this was his manner of questioning Jeantel is evident in the transcript and recording of that day, April 2, in the living room of Martin’s mother. This inclination would have been only accentuated by the natural difficulty he must have experienced in getting understandable responses from Jeantel. As is the nature of leading questions, the hoped for answer was built into the very question, such that Jeantel needed merely to either answer in the affirmative or layer her own imaginative onto the framework presented in the query.

Further, Wests deliberate questioning soon had Jeantel admitting without hesitation that she had molded her testimony to minimize any pain she might cause Sabrina Fulton, silently weeping beside her. In that room on that day Jeantel told not the truth and the whole truth, but a version of the truth customized to meet the perceived needs and interests of her audience.

There were, of course, other issues with Jeantel’s testimony, but to my mind none of them are anywhere nearly as destructive to the credibility of that testimony than the extraordinarily coercive environment in which it was taken. As West himself put it to the court, this environment allowed the young and unsophisticated Jeantel to be led right down the path to what the several highly experienced and motivated questioners wanted her to say.

Further, at the close of her testimony the defense noted to the court that they intended to make a proffer of evidence and bring Jeantel back for additional questioning. I presume this additional questioning will revolve around her social media usage–some of which was abruptly scrubbed from the internet just prior to her court testimony.

Raymond MacDonald, Senior Manager, T-Mobile

There’s not too much to say about this witness, as his testimony was largely procedural as a way to get relevant cell phone records into evidence, so I won’t spend much time here.

Jenna Lauer, Resident, Retreat @ Twin Lakes

Jenna was another one of the State’s witnesses who had been a resident of Twin Lakes in a position to take notice of at least some of the events that February night. Indeed, Lauer was the Witness #11 who made the 911 call which best captured the background screams that were such fodder for the speech recognition and speaker identification experts in the pre-trial Frye hearing.

Already this trial has seen virtually every State witness (other than the LEOs and arguably Jeantel) testify in a manner that was either completely consistent with Zimmerman’s claim to have acted in self-defense or was actually supportive of the defenses theory of the case. Jenna Lauer presented probably the most extreme example of this that we’ve seen to date in this trial.

Lauer was an “ear”-witness in that she didn’t actually see any of the events, but could testify only to what she had heard.

On direct examination by de la Rionda, all of Lauer’s testimony was completely consistent with the defense’s theory of lawful self-defense, and to some degree even contrary to some of the State’s theory (for example, Lauer recounted that there was “pretty steady-paced rain,” when the State has consistently sought testimony that the rain was light or intermittent).

She also noted in both direct and cross examination that she herself was uncertain of the street names in the neighborhood, and that there were no street signs anywhere near her townhouse, the same area where Zimmerman would have reported to the non-emergency dispatcher his difficulty in providing a specific address.

She also on direct recounted overhearing a “three-part” exchange that was entirely consistent with Zimmerman’s telling of the brief exchange between himself and Martin that night.

Things really got interesting when O’Mara started his cross-examination, however. On direct examination de la Rionda had revealed in questioning that Lauer, as a board member of the HOA, had known Zimmerman personally, if only slightly, because of his work with the Neighborhood Watch Program. At one point of the night of the shooting the police had asked Lauer if she would be willing to see if she could identify the man who had identified himself as the shooter.

She was understandably unwilling to come face to face with a person who had just shot someone. Instead, she suggested that they take a picture of the shooter, and she would seek to identify that. The police agreed tot his suggestion, took a photo of Zimmerman’s face as he sat in the patrol car, and showed the picture to Lauer, a woman who had repeatedly seen Zimmerman in HOA-related meetings.

Shockingly, she was unable to identify Zimmerman, because of the severity of his injuries. This powerful testimony obviously strongly supported the defense’s theory of the case that Zimmerman had been the subject of a brutal aggravated assault by Martin, against which he had necessarily used deadly force in self-defense. With that statement Lauer had struck a heavy blow against the State’s theory of the case, of an innocent young black boy ruthless murdered, and in favor of the theory of the defense.

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George Zimmerman, injuries night of attack

But O’Mara wasn’t finished yet. He began to explore with Lauer the screams that had been so powerfully captured in her 911 call. She, he supposed, must have been able to hear them even more clearly than could others listening through a cellphone to a 911 recorder to a speaker in a court room. She acknowledged that she could hear the screams as if they were right there in her town house.

He supposed it must have been traumatic, and she agreed it had. She described the screams as those of a person in desperate need of help.

At that point O’Mara asked her, you mean, like the screams of a person who was being subjected to this? And he held up the photo of the blood back of Zimmerman’s head taken at the scene.

The State immediately objected, and Lauer did not respond, but the point had been made with great power to the jury.

O’Mara then asked a few questions that will undoubtedly–if incorrectly–become great overnight fodder for the legal pundits. He asked Lauer if in her personal interactions with Zimmerman he had acted appropriately. Yes, she answered. Did he appear to be a hot head? No. A wannabe vigilante? No. Did he seem to be a well-intentioned neighbor trying to help his community? Yes.

Keep in mind, Lauer is the State’s witness.

On re-direct we were treated to the astonishing efforts of de la Rionda to aggressively impeach his own witness.

You couldn’t really see anything, could you? No.

You don’t know who said what to who, do you? No.

You could not make out those two people, assuming it even was two people, could you? No.

You don’t know who was attacked and who was not, do you? No.

You don’t know whether it was Zimmerman or Martin screaming, do you? No.

At that point de la Rionda asked the Court for permission to make an offer of proof. The jury was removed, and de la Rionda explained his intentions.

He argued that O’Mara’s questioning Lauer about her perceptions based on her personal interactions with ZImmerman had opened the door to allow the State to introduce evidence of specific prior bad acts of Zimmerman.

In particular, he wanted to introduce to specific prior bad acts. The first was the fact that a prior girlfriend/fiance had taken out a restraining order against Zimmerman. The second was that Zimmerman had been arrested for batter on a law enforcement officer. Both had taken place many years prior to the shooting.

O’Mara responded that the very idea was ridiculous, because asking someone about their peersonal interactions with Zimmerman could not trigger the admission of either reputation or specific prior bad acts evidence.

In any case, he restraining order with the fiancee had been mutual, in that Zimmerman had also been granted an order against her, and in any case both were mutually dismissed. As for the arrest for battery, a youthful Zimmerman had come to the defense of a friend being mishandled by ATF agents, the charge had been reduced to a misdemeanor, and then had been completely dismissed following Zimmerman’s successful participation in a pre-trial diversion program, back in 2005.

Judge Nelson was not prepared to make a decision on the moment, nor was de la Rionda prepared to present a comprehensive argument on the spot, so the matter has been deferred.

Finally, de la Rionda made perhaps the biggest blunder of the trial to date. He is perhaps the luckiest prosecutor in the country today that his mistake occurred outside the view of the jury.

He concluded, somehow, that he had found some “social media” dirt on Lauer that he could use to discredit her and destroy her credibility.

He asked her if she had ever tweeted George Zimmerman’s brother, Robert Zimmerman. She answered that she didn’t think so, she rarely used social media. Then de la Rionda sprang his trap. Ofter conferring with Judge Nelson, both de la Rionda and O’Mara approached Lauer with a laptop.

Is this your Twitter account. It is, she acknowledge. And is this Robert Zimmerman’s name right here? It is, she said, sounding confused. I don’t know what it’s doing there.

Yet you told us that you weren’t following Robert Zimmerman, didn’t you, asked de la Rionda triumphantly.

Wait a minute, Lauer said. That says, “Follow”, not “Following”. That’s so I can follow him if I want to, it doesn’t say that I am following him. de la Rionda appeared confused.

Lauer explained, “All this means is that Robert Zimmmerman is following ME, not that I’m following HIM.”

O’Mara is apparently not one to hold back the final blow, because he then stepped in and asked Lauer if she could inform the court how many tweets she had sent in the entirety of her possessing that Twitter account.

“Zero,” Lauer announced in a clear, strong voice.

Almost immediately I began to hear legal pundits wail about O’Mara huge “blunder,” saying that he had now opened the door for this prior bad acts evidenced to be shown to the jury, effecitiely dooming his clients.

The only problem with this opinion is that it seems ill-informed and mistaken.

The acceptable methods of proving character at trial in Florida are governed by statute 90.405. It has separate provisions for introducing either general reputation or specific instanced of conduct. In the context of general reputation evidence, it provides in relevant part:

(1) When evidence of the character of a person or of a trait of that person’s character is admissible, may be made by testimony about that person’s reputation.

With respect to specific instances of conduct, it provides

(2) When character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.

To see 90.405 in its entirety, click here:  FL 90.405 Methods of proving character.

Note that Florida allows for proving character by either general reputation or specific instances of a person’s conduct–but not by the mere recollection by a witness of their personal experience with the person. O’Mara asked Lauer neither about Zimmerman’s general reputation nor about any specific prior acts, and therefore did not trigger any complementary privilege on the part of the State to introduce evidence of Zimmerman’s general reputation or specific acts (and particularly not any that were not already in evidence and had not previously provided a basis for the State’s introduction of specific prior acts).

One never can be certain in predicting how a judge will rule on a motion, and Nelson has certainly appeared to favor the State, but to this lawyer’s eye there seems little “there, there” to de la Rionda’s claims. Rather it appears to be the desperate act of a State prosecutor who has seen yet another of his witnesses co-opted by the defense, and spectacularly so.

Selma Mora, Resident, Retreat at Twin Lakes

Mora was yet another resident at Twin Lakes at the time of the incident who had an opportunity to hear and see some of the events

Here again the State had a witness who on direct provided testimony that was 100% consistent with the defense’s theory of lawful self-defense. The State spent considerable time having her testify to the effect that “the person who got up was the person who had been on top” when the two people were on the ground.

Zimmerman has always maintain, since his first written statement to the police the night of the shooting, that after firing his single round he had positioned himself above Martin’s prone body to keep Martin’s arms away from his body and prevent a renewal by Martin of his attack (at the time Zimmerman could not, of course, know the full extent of Martin’s injuries). Or, to read it in the words of Zimmerman’s own hand-written statement taken at the Sanford Police Department the night of the shooting:

At this point I felt the suspect reach for my now exposed firearm and say, “Your gonna die tonight Mother Fucker!” I unholstered my firearm in fear for my life as he had assured he was going to kill me and fired one shot into his torso. The suspect sat back allowing me to sit up and said, “You got me!” At this point I slid out from underneath him and got on top of the suspect holding his hands away from his body.

To see the entirety of Zimmerman’s handwritten statement to the Sanford Police Department the night of the attack, click here:

Zimmerman Trial: Evidentiary Flashback: Zimmerman’s 1st Written Statement to Police the Night of the Shooting

Mora had testified that she did not observe the two bodies until after the shot had been fired. Seeing Zimmerman “on top,” then, in no way conflicted with the defense’ stated theory of the case of lawful self-defense.

And that wrapped things up for the fourth day of the trial proper.

We start again tomorrow, at 9:00AM sharp, so be sure to join us then for our live, all-day coverage, mid-day update (not just twitter posts, this time!), and our comprehensive end-of-day wrap up and analysis.

–Andrew


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.