Today marked the first day of the trial proper of Florida v. Zimmerman, and accordingly was the first opportunity for each side to present their “theory of the case” to the jury.   This day covered both the party’s opening statements, as well as the first four of the State’s witnesses (although testimony of the fourth was interrupted).  Here, however, I’ll just provide an overview and analysis of the opening statements.  I’ll cover the first few of the State’s witnesses separately.

As an aside, Angela Corey was present in court for the first time in recent memory.

Angela Corey, Special Prosecutor (Tracy Martin is immediately behind her)

Angela Corey, Special Prosecutor (Tracy Martin is immediately behind her)

State’s Opening Statement:  Brief, Big on Drama, Light on Facts

As is the norm, the State spoke to the jury first. This is a powerful advantage for any prosecutor,. The first time the jury is presented with a cohesive vision of the events underlying the trial it is done from the perspective of the defendant’s guilt.

George Zimmerman

George Zimmerman

In addition, the opening statement provides the prosecutor with an unusually broad opportunity to establish a conceptual framework of guilt constructed wholly of the State’s view of the evidence. Once the State begins its formal presentation of its case it will face substantially greater restrictions on what it can say and how it can say it.

Given this relative “freedom of action,” it is during the opening statement that the State should really hit a “home run.”. Up until the State’s opening is completed, the only substantive information that the jury will know of the case will have come from the State’s perspective. If immediately after hearing the State’s opening one isn’t strongly disposed to believe in the defendant’s guilt, is it likely that guilt will seem more likely after the State’s evidence has been subjected to a vigorous cross and the defense has had the opportunity to present it’s own side of the case? I suggest that the State’s opening statement is where they set the “high water mark” for guilt.

With this context in mind, there were three aspects of the State’s opening statement that I found particularly remarkable.

First, that it was State Attorney Guy who made the opening, rather than his boss, de la Rionda, or for that matter his boss–the special prosecutor actually appointed by the Florida governor to bring this to trial, Angela Corey. (Both de la Rionda and Corey were present in the courtroom.)

Second, the brevity of Guy’s comments–from start to finish his opening remarks took a mere 30 minutes. Given that the vital strategic importance of the opening statement, the State’s relative “freedom of action” at this stage of the proceeding, and the fact that this is a murder in the second degree case of national prominence and in which the State has surely invested well in excess of a million dollars, a 30 minute opening seems a rather modest effort.

Third, the almost complete absence of evidentiary basis for the State’s opening. Attorney Guy opened by quoting Zimmerman’s brief cursing on the non-emergency call, placing considerable emphasis on this as evidence of an “evil mind”, and then went on to rely far more on dramatic intonations than on actual facts in evidence. Even worse from the State’s perspective, many of the facts he did mention would seem favorable to the defense–for example, that there had been a recent surge in crime in Zimmerman’s neighborhood.

Many other facts seemed an effort to shock the jury, but were of little or no relevancy to guilt. He repeatedly referenced the fact that Zimmerman’s handgun was loaded to its normal capacity, as if this showed some evil intent. In fact, every Sheriff’s deputy in that court room has his sidearm loaded in exactly the same manner, as intended in the gun’s design.

Similarly, he kept referring to the handgun as a “semi-automatic,” which it certainly is, but he may as well have been referring to its color or barrel length for all the relevancy it has to whether Zimmerman acted in lawful self-defense or committed murder in the second degree.

He also spent much of his limited opening attempting to diminish the seriousness of Zimmerman’s injuries, as if it is the extent of injuries suffered that justified acting in self-defense. Of course, the law of self defense does not require that you accept some indeterminate amount of a beat-down before you can protect yourself. It doesn’t even require that you suffer so much as a scratch. You need only be in reasonable fear of imminent harm about to occur, not to have actually suffer harm to occur.

There also seemed to be an almost desperate effort to recast marginally interpretable pieces of evidence as instances of Zimmerman lying outright to the police and others. Guy mentioned, for example, that Zimmerman claimed Martin attacked him “right after” the end of Zimmerman’s non-emergency call to police. Guy almost seemed to shout, “Ah-HAH!” with a pointed finger in the air when he informed the jury that in fact a whole two minutes had lapsed between the end of the call and the start of the confrontation.

In summary, the State’s opening remarks seem to me to be a very weak effort, indeed.

Defense’s Opening Statement:  Comprehensive and Heavily Fact-Based

In contrast, Attorney West appears almost Terminator-like in his presentation of the defense’s theory of the case, their compelling narrative of George Zimmerman’s innocence, the desperate fight for his life, the final instant when only his gun could save him, and George barely surviving, bloody and staggering, his brush with death.

West did start off poorly with a very poor joke, which went as follows:

Knock-knock.

Who’s there?

George.

George who?

OK, you can be a juror.

West recovered strongly after this rare misstep, however, and began to roll out fact after fact, and exhibit after exhibit, including Google map images of the housing complex generally and the scene of the conflict in particular.

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His exhibits placed a great deal of emphasis on the terrain of the conflict, showing where Martin and Zimmerman had been physically located at various times, where Martin’s apparent destination was located, where Zimmerman had parked, where the attack occurred, the distances between them, and more.

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West played both Zimmerman’s non-emergency call to police as well as Witness #11′s 911 call, both in their full-length and in a step-by-step fashion, comparing each portion to a timeline of events. The recordings made clear that the “cursing” so strongly emphasized by the State was said in a tone of exasperation, not hatred.

He placed the expected witnesses testimony in the context of events, emphasizing the portions of that evidence that were consistent with George’s absence of either guilt or a depraved mind, and explaining why some testimony that suggested guilt would be shown to be impossible given the facts (for example, one witness claims that Zimmerman shot Martin in the back, but forensics clearly shows Martin was only shot once in the chest).

West had several exhibits showing Zimmerman’s extensive injuries, as well as hand-drawn sketches of the eye-witness who saw the fight and noted on his drawing, “dark shirt on top, red shirt on bottom,” referencing the fact that Martin with his dark hoodie was atop of Zimmerman in his red jacket.

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West also put into context Zimmerman’s desperate straits, begging for help, but with no help coming.

After the lunch recess West began digging into the forensic evidence. He illustrated how the fact that Martin’s hoodie was scorched by the shot but his chest was not indicated that there was a gap between the two, as one would expect of someone straddling, leaning over, and pummeling a beating victim.

He discussed at length the issue of the alleged lack of blood on Martin’s hands–which claim is supposed to show, I guess, that Zimmerman’s injuries were self-inflicted?–and noted that there were various steps skipped in the collection of evidence (such as a failure to bag Martin’s hands and a failure to photograph the hands at certain angels) such that we just can’t really know if there was ever blood on Martin’s hands or not.

Similarly, with respect to the State noting, with much drama, that Martin’s DNA was not found on Zimmerman’s gun–which would only mean, at best, that Martin never actually got a hold of the gun, not that he’d never reached for it (DNA doesn’t “jump”)–and that very little of ZImmerman’s DNA was found on Martin’s clothes, that the forensic lab had improperly stored the clothes such that any DNA would have degraded.

In discussing Zimmerman’s membership in the “fight gym,” West made clear he plans to call the gym’s trainer, and gave a very good sense of what that witness’s testimony will look like–that George Zimmerman was not a “fighter” in any meaning of the word.

West then used a forensics photo of Martin’s pants to show stains on the knees, just as one would expect of someone straddling a prone victim’s body.

West also recounted how the lead Investigator for the Sanford PD had played the “screaming” 911 call for Trayvon Martin’s father and asked him if the screaming was that of Trayvon, and the father had said it was not.

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Time was also taken to discuss Zimmerman’s gun ownership, the fact that he had taken training to obtain his firearms license, and that he’d also received at least informal instruction from a close friend who is a Federal law enforcement officer (Air Marshall)–this person is expected to be a defense witness. He also emphasized that despite the State’s dramatic overtones about the fact that Zimmerman’s gun was loaded and “ready-to-shoot,” is actually the proper and normal way the gun is intended to be carried.

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And that wrapped up the parties opening statements.

The court then recessed briefly to take up the matter of whether Taryvon Martin’s father should be excluded from the courtroom for having cursed out one of the court observers there in support of Zimmerman. The observer in question took the stand and testified that Martin’s father had seen from his ID badge that he was there in support of Zimmerman and then muttered “M-F’er” under his breath. In the end the Judge allowed the father to stay and admonished everyone to behave like big boys and girls.

WIth that the court recessed for 10 minutes, to return with the State’s first witness.

I’ll cover the witness testimony, however, in follow-up post.

–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.