As the State prepares to rest its case against George Zimmerman as early as tomorrow, I can’t help but juxtapose where we ought to be in terms of the weight of evidence of Zimmerman’s guilt of second degree murder, and contrast it with where we are. The gap is of Grand Canyon proportions.
The Charge: Second Degree Murder
First, it is worth recalling that Florida’s second degree murder statute requires that Zimmerman have possessed a “depraved mind” when he killed Trayvon Martin. For more information on what is required for a “depraved mind,” and why the State is so unlikely to prove, beyond a reasonable doubt, its existence, see:
To charge Zimmerman with second-degree murder, then, the State had to somehow acquire facts suggestive of this mental state. These facts would then provide the foundation for the affidavit of probable cause providing the legal basis for Zimmerman’s arrest and prosecution on murder 2.
The Shameful Affidavit of Probable Cause
So, what did the affidavit allege to advance the State’s theory of a depraved mind?
In the context of the nationally-known racial activists who descended on tiny Sanford FL in the wake of the shooting, the affidavit claimed that “Zimmerman felt that Martin did not belong in the gated community,” a “dog-whistle” claiming that racism had motivated Zimmerman’s suspicions of Martin. This sentiment was buttressed by the contemporaneous release by NBC news of Zimmerman’s non-emergency call to police to report the suspiciously wandering Martin, in which he appeared to make an unsolicited identification of Martin as “he looks black.’ In fact, as everyone involved in the case knew, that tape had been doctored to create exactly the desired perception of racism:
That affidavit claimed that “Martin attempted to run home but was followed by Zimmerman”. But this cannot be true, because if Martin had indeed run home it would have been impossible—based on the times and distances involved—for the older, clinically obese Zimmerman to catch up to him before he secured safety.
The affidavit claimed that “Zimmerman disregarded the police dispatcher[‘s alleged instruction to not follow] and continued to follow Martin”. This also is known not to be true, because alleged instruction never occurred.
The affidavit goes on to claim that “Zimmerman confronted Martin.” Another untruth, as testified to this past week by Rachel Jeantel, who claims to have overheard, by cell phone, the brief confrontational speech between the two men.
Worst of all, however, is the fact that ALL of these foundational claims of the affidavit for probable cause were known to be untrue at the time the affidavit was sworn to and filed with the court.
Keeping in mind the foundational and demonstrably false “facts” that were included in the affidavit, we can take a look at some critical information that was left out of the affidavit.
Noting blandly that “a struggle ensued” between the two men, the affidavit fails to acknowledge the almost total absence of injuries on Martin (absent, of course, the gunshot wound that ended the fight), except for cuts on his hands consistent with having struck a blow. Similarly, no mention was made of Zimmerman’s far more extensive injuries, including abrasions, contusions, and lacerations all around his head, consistent with having had his head beaten against a concrete sidewalk (as Zimmerman claimed was the case), nor Zimmerman’s bloody and broken nose, the initial blow that left Zimmerman dazed, on his back, and vulnerable to Martin’s unrelenting (until shot) aggravated assault. Further, no mention was made of any fact consistent with Zimmerman’s claim of self-defense. Nor was that very claim of self-defense mentioned.
Again, every one of these facts excluded from the affidavit was known to investigators at the time the document was sworn and filed.
The affidavit closes with the following sentence:
“The facts mentioned in this Affidavit are not a complete recitation of all the pertinent facts and evidence in this case but only are presented for a determination of Probable Cause for Second Degree Murder.”
Career Prosecutors, Police Pressured to Bring Unwarranted Charges–Resigned, Fired, Demoted
Why, then, was this prosecution brought at all? We now have sworn testimony as an answer–there was pressure being brought upon the lead investigators, both from within and without the police department to bring charges of second degree murder against Zimmerman, when neither the lead investigator, his Chief , nor the local prosecutors handling the matter believed such a charge was warranted.
In short order the lead investigator was re-assigned from Investigator to the much less prestigious job of Patrolman, the Chief had been fired, and the local prosecutor had resigned and been replaced by a Special Prosecutor, the politically-ambitious Angela Corey, appointed by the Governor, along with her hand-picked cadre of State attorneys our of Jacksonville, a city with no relationship whatever to the Orlando-suburb of Sanford where the events occured.
Zimmerman Trial: Evidentiary Flashback: Investigator Serino Tells FBI He Was Pressured to Bring Charges
Prosecution, Fearless of Sanctions, “Slow Rolls” Discovery
As the case proceeded to trial and both sides began to investigate and share, through mandated discovery, the findings of their investigations, it became increasingly clear that the State was “slow-rolling” its own discovery obligations, and being duplicitous in the discovery it did provide.
For example, a State-generated report summarizing the data gathered from Martin’s cell phone–a process requiring equipment available only to law enforcement–was presented to the defense, along with a copy of the raw (and, to the defense, unreadable) data. When a State employee noted the discrepancy and consulted legal counsel to determine his exposure if he remained silent, that legal counsel was required by legal ethics to inform the defense of the deceptions. In court the State argued that they had, in fact, complied with their discovery obligations by providing the raw data unreadable by the defense.
This is an interesting interpretation of discovery obligations to be sure, but one which led to the initiation of sanction hearings against the State prosecutors. Ultimately, however, Judge Nelson proved uninterested in hearing the matter of the State’s dishonest discovery practices until after the jury had handed down a verdict.
Similarly, the State’s key witness who claimed to have overheard the confrontation between Zimmerman and Martin had lied under oath while being deposed on an issue directly impacting her credibility as a witness. The State informed the defense of this perjury only months after they had learned of it themselves, during which they pretended to be trying to hunt down the records that would have affirmed the known-to-be false claim by the witness, and even then only when they were ultimately cornered in Court with facts.
Prospective Jurors Lie and Deceive in Attempt to Deny Zimmerman Fair and Impartial Jury
Then came jury selection, in which it was discovered that more than one juror claiming to have not yet formed an opinion on the case had in fact advocated strongly for the arrest, prosecution, and imprisonment (or in at least one case the actual death) of George Zimmerman. This was in effect an deliberate attempt to deny Zimmerman his due process right to a fair and impartial jury. It is not anticipated that any of the individuals involved will face sanctions of any sort.
Zimmerman Prosp. Juror E7: “no conclusions,” but posted on pro-Trayvon, anti-Zimmerman site containing threat against Zimmerman
State’s Opening Statement Writes Checks Unlikely to Clear at Closing Argument
Then, of course, came the start of the trial proper, and along with it each sides’ opening statements. The State went first, as is the norm, and presented a histrionic and largely fact-free emotion-laden narrative for the conviction of George Zimmerman for second degree murder. In addition to the already debunked claims of having “profiled” and “chased down” Martin, the State emphasized the dangerous manner in which Zimmerman carried his personal defense handgun with a round in the chamber as “ready-to-go, all he had to do to kill Trayvon Martin was pull the trigger.” The State also emphasized how the muzzle of the gun had been in contact with Martin’s shirt when fired, suggesting the kind of callousness the State prosecutors had so desperately been seeking to support their theory of a depraved mind.
At trial, it would be revealed, however, that carrying a semi-automatic pistol intended for personal protection with a round in the chamber was the normal and accepted method of such carry–and the manner in which every Deputy in the courtroom was carrying their own sidearms. In addition, it was shown that although the muzzle of the gun had been in contact with Martin’s sweatshirt, it had not been in contact with Martin, as the sweatshirt had hung down from Martin’s torso as he straddled the largely helpless Zimmerman “MMA-style” and rained down blows in a “ground-and-pound” attack intended to debilitate, or perhaps even kill, Zimmerman.
ZIMMERMAN TRIAL BLOCKBUSTER — TRANSCRIPT — Eyewitness Good: Black guy in black hoodie on top punching down Mixed Martial Arts style
Clearly, much of the State’s opening was being shown to be lacking in factual basis.
State’s Own Witnesses Routinely Undermine Their Theory of the Case, Buttress Defense Claims
This unraveling of the State’s theory of the case under the relentlessly unfavorable testimony of their own witnesses was the norm, rather than the exception, in this trial. One by one, the State’s witnesses were consistently co-opted to testify favorably to the defense, shown to be substantively lacking in credibility, or at best to testify ambivalently on the events at issue. Witness after witness found themselves subject to the raised, angry voice of State prosecutor Bernie de la Rionda practically shouting at the witness–his own witness!–that in fact they knew nothing about anything, isn’t that true?
Indeed, after eight solid days of the State presenting its case, and benefiting from a tailwind of consistently favorable rulings by Judge Nelson, it can not honestly be said that they walked away from any single one of those days the clear winner–and at the end of more than one of those days they left the courtroom soundly beaten.
Such a performance would not seem to have the makings of guilt beyond a reasonable doubt.
The Few Witnesses Supportive of State Have Credibility Damaged, Destroyed
Perhaps only five of the witnesses overall could be said to have clearly favored the State.
One ear-witness was Selene Bahadoor, a neighbor, who claimed that she had heard the sound of the two men moving from one region of the courtyard to another, as if one person had been chasing another. This was the first testimony consistent with the State’s theory that Zimmerman had “chased down” Martin. On cross by defense attorney Don West, however, it was soon revealed that she was disclosing this critical information for the first time in court that day, despite having been repeatedly questioned and deposed in the 14 months since the events occurred. She had also, it was disclosed, signed a petition in support of the arrest and prosecution of George Zimmerman. Thus, her credibility was destroyed.
Jane Sudyka was another such ear-witness, but her histrionic 911 call and her insistence that she had heard a physically impossible three shots fired collapsed her credibility (and drew some concern about her mental state generally).
Jeannee Nanalo, another neighbor, testfied that it was the “larger” person on top during the physical confrontation between the two men, but on cross admitted that it had been too dark to see anything definitely, and that she was basing her judgement on post-event photos of the two men–photos in which Martin was consistently portrayed as being younger, and in some cases years younger, than the night of his death. Her credibility as a witness suffered accordingly.
Rachel Jeantel, previously mentioned for her perjury during deposition, testified that she had overheard Zimmerman speak to Martin in an aggressive and angry tone, consistent with that day’s theory of the case for the State that although Zimmerman was outwardly calm and polite on the outside, he was a seething cauldron of hatred on the inside. Unfortunately for the State, not only was Jeantel carrying the burden of having lied under oath about several facts relevant to the case, her claims regarding what she had overheard were based on sworn testimony she gave to Prosecutor Bernie de la Rionda while sitting in Trayvon’s living room with the dead boy’s weeping mother at her side and other family members and advisors strewn about the room. A more coercive and leading environment is difficult to imagine.
Finally, the State called in the medical examiner–or, rather, “a” medical examiner. Rather than call to the stand Dr. Shiping Bao, the ME who had actually autopsied Martin, they instead brought in Dr. Valerie Rao, an ME who had been disgraced in her former professional position, fired, and had her career resurrected by the good graces of Special Prosecutor Angela Corey. If the obvious incentive for being biased in favor of the State wasn’t enough, she hilariously characterized Zimmerman’s injuries as inconsequential, in line with the State’s theory of the day that because Zimmerman had not suffered life-threatening injury his use of deadly defensive force could not have been justified.
There was much humorous cross in which defense attorney Mark O’Mara held out a series of large color photos of Zimmerman’s head, taken at different angles, and asked her if this, that, or another abrasion, contusion, or laceration, was a meaningful injury. The good doctor either mocked them as insignificant or refused to acknowledge they existed at all. By the close of her testimony one could only wonder how many times Dr. Rao’s own head would need to be smashed against a sidewalk before she would consider the blows “significant.”
State Witnesses Routinely Co-Opted by Defense, Undercut State’s Theory of the Case
The other State witnesses either presented testimony at least consistent with Zimmerman’s claim of lawful self-defense or positively favored the defendant.
Wendy Dorival, who coordinated the local Neighborhood Watch Program for the Sanford Police Department, thought so highly of Zimmerman that she tried to recruit him to be a “Citizen on Patrol,” in which he would be supplied with a police department issued patrol car and a uniform of sorts. In sharp contrast to the State’s repeated characterization of Zimmerman as a “wannabe” cop who went over the edge in his pursuit, confrontation, and shooting of Martin, Ms. Dorival regretfully stated that Zimmerman had declined the offer.
Another State witness, Donald O’Brien was President of the Twin Lakes HOA, which had paid out a very healthy settlement to the Martin family, and clearly not a fan of Zimmerman. Nevertheless, on cross he revealed that he had commended a group of workmen a the townhouse community for their efforts leading to the apprehension of a burglar. Their method? Following the suspect from a distance so that he could be definitively located and identified by responding officers–exactly as Zimmerman had intended to do that night with Martin.
The testimony of the only real eye-witness, neighbor John Good, was particularly destructive to the State’s theory of the case, because he stated with utter conviction that it was the man in the dark hoodie [Martin] who was “mounted MMA-style”" on the man in the red/white coat [Zimmerman] raining down blows in a “ground-and-pound” style. So obviously dangerous was the beating that Good immediately phone the police emergency number.
ZIMMERMAN TRIAL BLOCKBUSTER — TRANSCRIPT — Eyewitness Good: Black guy in black hoodie on top punching down Mixed Martial Arts style
The next day then-Investigator Chris Serino testified the Court through a video re-enactment of by Zimmerman of Martin’s brutal attack upon him, and his desperate fight to live. Serino also testified that he believed Zimmerman to be telling the truth when he recounted how he had to shoot Martin to save himself from the other man’s brutal aggravated assault–a comment which the State convinced Judge Nelson the following day to strike, meaning only that the jury got to hear it twice.
The next day Federal Air Marshal Mark Osterman, who described Zimmerman as his best friend, appeared as State witness and testified at length in and in horrific detail about Martin’s brutal attack upon Zimmerman, and Zimmerman’s desperate fight to live.
The next day the State produced as one of their “witnesses” an interview given by Zimmerman to the Sean Hannity show in which the jury got to hear once again–you guessed it–the defense’s narrative of Martin’s brutal attack upon Zimmerman, and Zimmerman’s desperate fight to live.
Finally yesterday, after much finagling and over the defense’s objections, the State managed to call to testify two of Zimmerman’s criminal justice professors. All wondered how badly the defense would be hurt by the testimony of these two witnesses the State had struggled so greatly to have admitted to testify.
In the end, the first professor, Army Captain Alex Carter testified that Zimmerman had been one of his best students, to whom he had given an “A” grade, and that it would have been foolish for Zimmerman to have waited until he was gravely injured before using deadly force to defend himself. The other professor, Scott Pleasant, was ambivalent about every “fact” the State had claimed would reveal Zimmerman’s secretly nefarious nature, but did testify that Zimmerman had told him his career goals were to become an attorney and then a State prosecutor.
I have, of course, left out a great deal in the above recounting–nothing about the Frye hearing, the repeatedly denied defense motions for a continuance, the still incomplete State discovery obligations, the as yet to be deposed Benjamin Crump–he who arranged for the coercive interview of Rachel Jeantel, among much else.
So, Here We Are, On Cusp of State Resting Its Case
Nevertheless, that brings us to today, the ninth day of State witness testimony. It is expected that Sabryna Fulton, Trayvon Martin’s mother, will testify that the now unforgettable screams on the Jenna Lauer 911 tape were made by her son, and perhaps finally Dr. Shiping Bao who peformed the autopsy upon Martin.
How those two additional witnesses, or any number of additional witnesses, is supposed to create for the State a compelling narrative of guilt beyond a reasonable doubt is beyond this observer’s ability to foresee.
Keep in mind, as well, that we are not at the end of the trial, with closing arguments about to occur. We are merely closing in on the end of the State’s case, during which the defense has been constrained in its questioning of witnesses to the range of issues raised by the State on direct questioning.
The defense has not, as yet, presented so much as a single witness, nor a single fact not already put into evidence by the State.
If the State’s case is this much of a shambles on the eve of the start of the defense, is it likely to be any stronger a week or so of defense produced witnesses, testimony, and evidence.
One would think not.
Despite this, for both legal and political reasons it seems clear that Judge Nelson will not cut short this trial by signing off on a motion for a directed verdict when the State rests, and we can therefore all look forward to another week or so of testimony favorable to the defense in the matter of Florida vs. Zimmerman.
What Does the Defense Have Planned?
How many of the State’s witnesses may be recalled as defense witnesses, given their earlier testimony favorable to the defense? I dare say most of them are on the list. Might Zimmerman be obliged to take the stand in his own defense? I stand apart from the majority of MSM analysts who seem (almost desperately) certain this will happen, but I just don’t see the upside for the defense given the train wreck that is the State’s case. Will Rachel Jeantel be brought back as a hostile witness for the defense, now that the jury has seen through the paper thin narrative of guilt and may have lost what many assumed was an initial degree of sympathy for her? I certainly hope so.
Only the defense team knows for sure, and as they’ve demonstrated they are darned good at keeping their cards close to their chest.
I’ll be here, watching, analyzing, and commenting–and you should be, too.
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!