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Zimmerman Jury Selection — Day Eight Wrap-Up

Zimmerman Jury Selection — Day Eight Wrap-Up

Today was the first day of general voir dire of the prospective jurors, now numbering 40.  (Click here for a compilation of our notes on all 40 prospective jurors.)  The prospective jurors were to be questioned en masse, which required some reorganization of the courtroom.  Interestingly, this re-arrangement had George Zimmerman sitting only a few feet away from Trayvon Martin’s parents.

Formal Reading of the Criminal Charge

At the start Judge Nelson read the jury the criminal charge, which is murder in the second degree, with an add-on firearm charge.  Then things were turned over to de la Rionda, who would do all of today’s vior dire (with the defense to have their turn tomorrow).

State Gets First Turn at General Voir Dire

The voir dire was much more fast-paced than had been the case with past days pre-trial publicity voir dire.  The State began a discussion of the presumption of innocence, reasonable doubt, and similar matters.

He then transitioned to asking for some basic biographical information from the prospective jurors, such as how long they had lived in Seminole county and whether they were married, if they had ever done military service, or had served on a jury before (about a dozen had).

Idiosyncratic Highlights

A few interesting, if idiosyncratic, highlights:

  • B72 is a “professional arm wrestler”
  • H7 is an NRA-certified instructor (me too!), and he volunteers with the Boy Scouts to teach their rifling merit badge.
  • H18, when asked what he did outside work, answered:  “Gym, swimming, and Denny’s”.  (I don’t know how frequently you have to visit Denny’s before you started listing it as your third most common non-work activity, but I expect it’s an awful lot.)
  • H29 is a competitive barbecuer.

For the most part, however, these questions revealed little about the individuals that one might think useful in determining whether they could serve as fair and impartial jurors.

State’s “Questioning” Involved Relatively Few Actual Questions, Many Suggestions

After the lunch recess, things became somewhat more interesting and, perhaps, revealing of the State’s trial strategy.

I’ve included a great many details of the afternoon questions below, to enable the reader to gain a sense of the flavor of the questioning, such as it was, and the temperament of some of the individual prospective jurors.

There was, however, an unavoidable overall impression I got, driven by the very large proportion of the time de la Rionda spent speaking (sometimes asking questions, other time extemporizing), and how little of the time was taken up by prospective jurors answering questions.

Laying the Foundation for the State’s Theory of the Case?

It quickly became clear the de la Rionda’s goal in the afternoon was less to learn new information about the candidates than it was to impart to them a certain perspective of the events in question, of the laws that would apply, and of the unreasonableness of a person (unnamed) who would “take the law into their own hands.”

Bernie de la Rionda began asking the candidates a series of questions addressed to them collectively that seemed clearly intended not to solicit information and insight but rather to require the candidates to commit themselves, at least emotionally, to a series of propositions.

“Do you understand and agree that the state must prove it’s case beyond a reasonable doubt?”

He then followed up by extemporizing that “reasonable doubt” doesn’t mean “no doubt.”

“Do you agree that Mr. Zimmerman is presumed innocent?”

He followed this question by emphasizing that “presumed innocent” doesn’t mean “can’t be guilty.”

He also mentioned that “this isn’t like TV,” and that the level of proof they will likely see won’t be the dramatic breakdown and confession of a witness on the stand.

He then shifted to a series of questions he posed to the group collectively, but which he asked them to respond to individually by raising their hands.

Anyone Ever Been Arrested?  18% Say Yes

“Has anyone every been arrested?”  B12, B29, B35, E6, H7, H81, and I33 each raised their hands, with only I33 saying that he felt he wasn’t treated fairly, but that he could set that aside to be a fair and impartial juror.

“Has anyone ever been the subject of a criminal investigation?”  No one had.

“Has anyone close to you ever been arrested, and you felt they were treated unfairly?”

B7, K95, and B61 said they had friends in such situations, but that they could set it aside.

“Anyone Been A Victim of a Crime?” 35% Yes, 10% of Violent Crime

Then he asked, “Has anyone been a victim of a crime?”

Astonishingly, 14 of the prospective jurors, fully 35% of this limited pool of candidates, responded in the affirmative.  For comparative purposes, on a national basis only about 6% of Americans report being a victim of crime (US Department of Justice, Bureau of Justice Statistics, 2010).

Of these 14, 4 (10% of the pool) reported they had been victims of violent crime.  (Nationally, the average is 1%, so an order of magnitude lower.  Ibid.)

B86 had been robbed at work (a fast-food restaurant) by a guy wearing a stocking and waving a gun. Later she was robbed again, similar circumstances.

E73 remarked, without elaborating in detail, that she had been the victim of a crime very similar to Mr. Zimmerman’s case.  When asked if she could set that aside she indicated probably not, noting that “it’s always on my mind.”

“Is There Crime in Your Community?”  100% Yes

“Do you believe there has been crime in the community you live in?”  The response was unanimously affirmative.

“Is It Right To Take Law Into Your Own Hands?”  Jurors Say No, But Some Soon Become Uneasy

de la Rionda then started asking about Neighborhood watches.  He particularly focused in on the theme of whether people should “take the law into their own hands,” and involved themselves in a bad situation.  Based on his phrasing, the majority of prospective jurors initially agreed with his propositions.  As de la Rionda continued to advance this theme, however, he got some pushback from the prospective jurors.

Jurors Begin to Challenge de la Rionda’s Propositions

G63 was the first to challenge one of de la Rionda’s propositions, saying that the phrase “putting it into your own hands” painted with too broad a brush.  He suggested that because we elect the officials who manage law enforcement, we are taking matters into our own hands.  Although rather clearly missing the point, G63’s interjection seemed to open the floodgates to other prospective jurors saying, essentially, “well, wait a second there.”

H7 jumped in by asking “where citizen’s arrest would fit into that.”  de la Rionda appeared to scoff, asking “has it ever crossed any of your minds to just go out there and start arresting people?” (His tone here was notably similar to some of the more petulant briefings submitted over Mr. de la Rionda’s signature in response to defense motions, particularly defense motions for sanctions.)  The absolute lack of response from the pool of jurors is perhaps a reflection of the inanity of the question.

Apparently taking the silence as meaning he had scored some kind of point, de la Rionda choose to double down and challenge the prospective jurors:  “Anybody?”

This time he got a response, but perhaps not the ones he was looking for.  I24 said that she hadn’t gone out to arrest people, but that she would certainly get involved if someone was breaking into her own house and she needed to protect her family.  De la Rionda, again in a scoffing tone, said, “In your house, sure, but would you go out and patrol your neighborhood?” He spent considerable time on the matter of “taking the law into your own hands,” but mostly in the form of a soliloquy.

It seemed apparent that de la Rionda was laying the groundwork for future derogation of Zimmerman’s Neighborhood Watch role (a program entered into by his community generally, and overseen by two police officers from the Sandford Police Department, including training and ongoing advice).

“Neighborhood Watch Program in Your Neighborhood?”  25% Say Yes, but Not Personally Involved

He then progressed into a more detailed questioning, on a juror by juror basis, of who had Neighborhood Watch Programs in their communities.  Ten of the jurors, fully 25%, answered in the affirmative:  B7, E73, E22, K80, K95, G14, G47, G63, H18, H29.  None, however, said they were personally involved.

“Any Experience in Fighting Sports, Advanced Cell Phone Skills?”

Interestingly, he also asked the prospective jurors if they had any experience in fighting sports, as well as if they had any advanced knowledge of cell phones. The first question seems obviously geared to identifying either any specialized knowledge of how devastating the damage of Martin’s bare-handed attack would have been to a man’s face with his head pinned against a concrete sidewalk.  The second seemed as if it might have relevancy to almost accidental discovery, very late in the discovery process, of images and other content on Martin’s cell phone, content that had not been disclosed in the State’s mandated discovery report to the defense.

“Got Any Guns?” 30% Own Guns Themselves, Another 30% Know Family/Friends Do

Particularly interesting to this gun owner and competitive shooter was de la Rionda’s next line of questioning, which asked about their individual relationship with firearms, if they owned them, and what type.
Being a firearms instructor, H7 was the most informed on the subject, but at least 10 other prospective jurors also reported owning personal firearms (B35, K80, K95, G66, I44, I33, I24, H81, H29, and H18).  B37 reported having once possessed a concealed carry weapons (CCW) license, but said she did not renew it because she never carried.  She acknowledged that there were still guns in her home, but suggested they were really her husband’s rather than hers.

Another dozen jurors did not own a gun personally, but knew guns to be owned by their immediate family or close friends:  B76 (family), E6 (husband & son), E40 (brother-in-law), B12 (son, mother, sister), M75 (brother-in-law), B61 (friends), B7 (father), E13 (stepfather), B86 (brother), I19 father, H86 (brother-in-law), H35 (mother), H6 (father).

Perhaps most shocking to this gun owner living in a blue state is how open the prospective jurors were in the detail with which they described the guns owned by themselves, their spouses, their family and their friends.  I can assure you that in Metro-Boston such revelations are simply not done in polite company.

De la Rionda’s final question of the day was, “Does everyone agree that people should be held responsible for their actions?” and the candidates answered unanimously in the affirmative.

Closing Thoughts

As a closing note, it struck this observer as remarkable how large a proportion of the day involved de la Rionda speaking, rather than any of the prospective jurors.  His speech was often long, somewhat rambling, and ultimately appeared to be an effort at conditioning the prospective jurors to a particular judgmental and emotional position–for example, participating in Neighborhood Watch is somehow similar to taking the law into your own hands.

Given the (to this New Englander’s eyes) somewhat astonishing responses–35% having been victims of crime, 10% having been victims of violent crime, 25% having Neighborhood Watch programs in their community, 30% owning or having owned personal firearms (the one having owned also having possessed a CCW), and another 30% having family or close friends who own guns–I’m not sure whether de la Rionda’s apparent selling proposition–which seems to be that Zimmerman took the law into his own hands–is being targeted at an amenable market.

The survivability of such a theory of the case seems particularly uncertain given the actual facts in evidence, which overwhelmingly favor the defense.  For example, will it really be a credible argument that Zimmerman was seeking to “take the law into his own hands” when it was he who phoned the police, in his role as leader of his Neighborhood Watch Program to report a suspicious person in his neighborhood plagued with robberies?

This disconnect between the State’s apparent theory of the case and the actual facts in evidence is likely reason that de la Rionda emphasized to the jurors the worth of circumstantial evidence.  The value of circumstantial evidence normally arises when there is a paucity of direct evidence.  There is a considerable body of evidence in this case, but given that little if any of it favors the State’s position they are in effect left in a terrain largely barren of direct evidence.

Well, that’s it for tonight’s wrap-up.

Join us again tomorrow morning, 9AM, for our ongoing live-stream, all-day coverage of day 9 of jury selection.  Tomorrow it will be the turn of the defense to voir dire the juror candidates.  In addition, we expect to see the return of the State’s expert witness Mr. Tom Owens, of the infamous line “this is not really good evidence”, tomorrow at 2:00PM.

Also, don’t forget to take a look at the two newest blogs at my home, the Law of Self Defense:

Zimmerman Trial: Never seen a juror questionnaire before? Here you go . . .
FLDE Forensic Report: Zimmerman’s Gun & Fatal Bullet

Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense” which shows you how to successfully fight the 20-to-life legal battle everyone faces after defending themselves (second edition shipping in June – save 30% and pre-order TODAY!).  Many thanks to the Professor for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!


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ShakesheadOften | June 19, 2013 at 10:06 pm

I’ve served on a jury and I can’t imagine the attorneys being allowed to attempt to sway potential jurors in this manner. It almost seems like an attempt to further compromise the jury pool. Is this normally allowed in FL, or is this just because this case is already so public?

Thank you very much for doing this. It is interesting reading. Comment: I was looking at the forensic testing of the gun on your home site, and in the report where it asks about the event, the word “homicide” is used to describe the event. This just doesn’t seem to be an appropriate word to use in cases of this nature, or for that fact in most cases where guilt has not been proven. Homicide, to me, indicates the unlawful taking of another person’s life. That has yet to be proven. It seems to be a prejudgment.

    “Homicide” is not the same thing as “murder”.

    Homicide is merely a descriptive term indicating that one human killed another.

    But not all killings are unlawful. A killing in lawful self-defense, for example, is a “homicide”, but it is not the cime of “murder”, because it was legally justified.

    A “murder” is a ” homicide” that has been determined to be unlawful and to meet the individual elements of the murder charge. Similarly with manslaughter, etc.

    In short, if one person kills another it’s a homicide. Whether it’s also a murder, manslaughter, etc., is what’s decided in court.

      If the term “justifiable homicide” had popped into my mind before I wrote…

      seeing_eye in reply to Andrew Branca. | June 19, 2013 at 11:36 pm

      I appreciate your explanation of “homicide.” However, I noticed in the bond hearings for Zimmerman, the BDLR referred to the killing as a “crime.” I’ve heard him say the same thing several times since then. I would think an attorney with as much experience and knowledge that BDLR has would know better than to say such things, especially in court.

        Bernie has an agenda. That is why he used the word “crime” instead of saying “alleged crime”. He has been helping to poison minds regarding this case.

    I thought that homicide is just a descriptive. In other words there is such a thing as justifiable homicide that does in fact fit the description of what happened to George Zimmerman. Homicide is not necessarily murder.

Mr. Branca, once again thank you for this extraordinary detailed effort keeping us informed. It’s fascinating, and excellent for those of us who are interested but don’t have a lot of time to watch the proceedings.

Wow. A couple of questions.

1. What do you anticipate will be the content of Owens’ testimony tomorrow? The only way I could see his testimony damaging the defense now would be if he were to somehow claim that he was able to positively match the screams on the 911 call to the exemplar he now has of Trayvon’s voice. Ironically, though, doing so would, according to the testimony of the defense experts so far, qualify as “new and novel” science, thereby requiring the court to exclude it.

2. Do you anticipate that Mark O’Mara will take a similar approach to voi dire as BDLR? Setting the stage for his eventual arguments at trial?

3. Wouldn’t the simple counter to BDLR’s claim about “taking the law in your own hands” be to note that defending yourself, even with deadly force, is specifically authorized by statute, so doing so would be considered acting within the law?

4. I still don’t see how the prosecution gets anywhere close to proving their case beyond a reasonable doubt, considering self defense is not an affirmative defense in Florida.

    A lot of questions. Let’s see . . .

    (1) Who knows what Owens is going to say. Whatever he says, to my mind the question is how could he possibly survive cross at trial? Should the State go bananas and actually call him at trial it will be a pop-corn worthy cross.

    (2) I have no idea what O’Mara will do. Based on my observation however, he is a vastly superior trial lawyer than de la Rionda. This suggests to me that he will not take the same approach.

    (3) Yes.

    (4) There is no murder 2 here, never was. For reasons why, see here:

    Getting to Murder 2: Finding George Zimmerman’s “Depraved Mind”

    JackRussellTerrierist in reply to cazinger. | June 20, 2013 at 1:38 pm

    Then according to BDLR, one must simply lay there and contemplate into whose hands the law should be placed as one sees and feels their life ebbing away during a violent assault and the cops are minutes away.

And thank you once again for your excellent coverage of this case.

On the lighter side, if H29 is competitive barbecuer, does that mean instead of a frye hearing, we’ll have a grilling instead? 😉

Thank you for your coverage, Mr. Branca. From your reportage, I’m guessing Mr. de la Rionda was trying to illuminate the jury to gauge how it lit up overall, condition the jury as you’ve speculated, and to see how individuals lit up. Still, I’m surprised he didn’t work to learn more about individual jurors to at least get a list of possible rejects.

    There’s an old expression in the law that goes something like this:

    When the facts are on your side, pound the facts.

    When the law is on your side, pound the law.

    When neither is on your side . . . pound the table.

    Attorney de la Rionda was trying to find the folks who liked table pounding. Because he’s going to be doing a great deal of it.

      Estragon in reply to Andrew Branca. | June 20, 2013 at 8:51 am

      Thank you so much for your coverage. I’ll be sure to check out your site, as well.

      This entire case smells to high heaven.

Trapped in Davis | June 20, 2013 at 12:41 am

Wow! That “has it crossed any of your minds to go around arresting people” comment was very condescending. I would have been offended and I think some of the jurors may have been. Way to influence the jury against you de la Rionda.

[…] found some facts in one of Branca’s live-blog jury selection reports interesting: One of the prospective jurors is an NRA firearms instructor (he’s certain to be […]

It would certainly trouble me to hear a prosecutor brush off a “citizen’s arrest” question in such a manner. No one thinks it is vigilantism or impersonating police detectives.

But in a society, if a citizen witnesses a serious crime being perpetrated and can reasonably act to stop it and detain the offender until police arrive, is there not a recognized sanction for that in most states? Of course it has nothing at all to do with this case, it has not been alleged by anyone that Zimmerman was attempting or ever contemplated a citizen’s arrest.

So why be a jerk about a non-issue?

    Lina Inverse in reply to Estragon. | June 20, 2013 at 12:48 pm

    So why be a jerk about a non-issue?

    I was wondering that myself. The best answer I can come up with is that you pretty much have to be a jerk to sign for leading the prosecution in such a case. When you can’t hide that, it’s a good feedback mechanism.

    JackRussellTerrierist in reply to Estragon. | June 20, 2013 at 1:43 pm

    Most likely because he is a jerk.

Mr. Branca, already subscribed to your excellent blog.

Just wanted to thank you for giving us your professional’s eye on this. You are catching nuances that interested bystanders such as myself who closely follow the law on this but are not lawyers miss, especially when it comes to things like courtroom practice and litigation strategies.

Especially since the extent of my “legal training” amounted to a constitutional law class and a business law class in college and reading business contracts over the years. 🙂

Was he really trying to suggest that there is no such thing as citizens arrest?! And the judge let him get away with that?!

I must admit that I’ve never heard of a prosecutor trying a case in voir dire before. I’m surprised the judge didn’t rein him in.

Also, that whole citizen’s arrest thing: not only irrelevant to the case, but counter-productive to the prosecution. Never smirk at the jury. It’s unattractive.