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Zimmerman Trial Pre-Game Day Analysis

Zimmerman Trial Pre-Game Day Analysis

The jurors are now selected in State of Florida v. George Zimmerman and opening statements are scheduled for Monday. Today was a ‘wrap up’ day, to resolve as any lingering issues that Judge Nelson hadn’t yet decided, and do general housekeeping in preparation for the trial.

Since first examining the evidence of this case I’ve been highly skeptical of both the State’s ability to prove, beyond a reasonable doubt, murder in the second degree, as well as the State’s ability to disprove, beyond a reasonable doubt, self-defense.

What I’ve seen over the course of the Frye hearing and jury selection has only reinforced that perception.  Indeed, it seems likely that this will be a long, painful and perhaps humiliating trial for the State.  Here’s why.

It’s called the Pre-Trial Motions Phase not the “Let’s-Do-It-As-We-Go” Phase

Normally, before a trial begins, the pretrial motions phase of a case is substantively concluded well before the trial proper begins. This allows for the trial to start with a relatively fixed body of evidence for the trial, shared by both sides, with each side constructing it’s own compelling narrative from the elements of that evidence.

This isn’t what happened here. Literally one working day before opening statements (and actually nine days after the technical start of trial, as jury selection is technically part of the trial phase), the court is still deciding what evidence will be allowed.

As an illustration, consider two issues that were raised today.  One is whether evidence on Trayvon Martin’s cell phone records can be used, even though it’s not been fully authenticated yet. Why hasn’t it been authenticated?  Because the defense is the one who wants it admitted and they only just finally received it from the state 3 weekdays before jury selection began.  And we’re not talking about a small number of records–it includes, for example, thousands of photos.  The defense argues quite reasonably that they simply haven’t had time to conduct a reasonable review of the discovery.  The judge’s ruling?  “We’ll decide [on admissibility] as we go along.”  Wow.

The other issue is whether two particular witnesses may testify to statement they heard Zimmerman utter.  In truth, however, that’s not the real issue.  The real issue is why such questions remain unsettled one work day before the opening statements?  One result of it is that the defense is now forced to start the trial, give their opening statement and frame out the compelling narrative to the jury, and do so without yet knowing whether potentially valuable witness testimony could be included.

Either the old Bait-and-Switch or the “Look, a Squirrel” strategy

Another seemingly benign (and not necessarily inappropriate during trial) motion today was to perpetuate the testimony of one of George Zimmerman’s professors. This can happen when a witness becomes unavailable.  The parties videotape formal testimony of the witness in advance, with both sides of the court giving full examination, with direct, cross-examination, etc. The video can then be shown to the jurors during trial.  Keep in mind, the state has yet to decide whether to actually show the video, they just have it in case they do decide.

Not unheard of certainly, and not necessarily wrong for Judge Nelson to grant.  Still, a few things sent off a red flag.  One is that O’Mara noted that the defense hasn’t yet deposed the witness. This isn’t totally unheard of with a case that has 220 witnesses.  Because of the enormity of effort to depose each one, both sides must categorize their witnesses by how likely they are to actually call them.  The A list will almost certainly be called, perhaps someone from B, less likely for C, etc. My guess is (and let me be clear this is only a guess) that the witness is pretty low on the list, and that’s the reason they have not yet been deposed by the defense.

So the cynic in me thinks the state may be trying to do one of two things.  One, they could have put him low on the list to ‘bury’ him from the defense, only to raise them to as effectively an A-list witness on the eve of trial.  Such last-minute scrambling also has the side-effect of likely destroying the last few hours of sleep O’Mara and West might have this weekend.


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Now Zimmerman is Black via MSNBC. Just heard some black female say on MSNBC that the jury isn’t of his peers because there are no blacks. It’s the “race card” by all means necessary.

    myiq2xu in reply to Neo. | June 21, 2013 at 6:02 pm

    If (when) Zimmerman is acquitted that will be the excuse the race-baiters use – the jury was “all white”.

It sort of seems that the judge has already taken sides.

    JackRussellTerrierist in reply to NeoKong. | June 21, 2013 at 8:06 pm

    Gee, ya think?

    No Frye ruling, apparently. I guess the judge is going to allow the snakeoil salesman’s little software device with the 3 seconds of audio screams in, else she would have ruled it out by now, it being as ridiculous as it is. Supposedly she will rule this weekend, but since she hasn’t by now, she’s obviously considering it even though it should have been a slam-dunk “No.”

On the “We’ll decide [on admissibility] as we go along” point, I would venture to guess that’s one appeal just waiting in the wings, should things go awry for the defense.

It seems to me that the State is not playing exactly fair. Is that normal?

    JackRussellTerrierist in reply to Voyager. | June 21, 2013 at 8:07 pm

    No, not everywhere all the time, but enough for it to be considered a growing problem.

There has been a lot of sandbagging by the State IMO, and this judge seems to be encouraging it. I’m not sure whether it rises to the level of reversible error yet, but it will be will be interesting to see how it plays out.

I think the real test to determine the judge’s bias will be her ruling on the Frye hearing. If she allows the state’s “experts” then I will have no doubt which side she leans.

BTW, great coverage! You are doing an excellent job, not only blogging the day’s events but making it easy for lay people to understand.

    creeper in reply to rokiloki. | June 22, 2013 at 8:49 am

    The judge doesn’t seem to be too concerned with the appearance of bias or neglect on her part. One would expect scrupulous adherence to the law and the process but we’re not seeing it. Her sloppiness is striking. This is worrisome. It indicates to me that she believes none of her rulings will be overturned.

    Is justice even remotely possible here?

The issue started with the governor deciding to go Black. The Judge selection was to go Black. The judge peers want this to be Black.
Zimmerman has one chance…that a single juror has the strength to vote true fully.

I hope and pray George is not being set up, the poor guy.

“We’ll decide [on admissibility] as we go along.”… whether two particular witnesses may testify to statement they heard Zimmerman utter… real issue is why such questions remain unsettled one work day before the opening statements

This is common judge behavior in Florida. Swell, huh?

Let me make sure I understand this. Both the prosecution and the defense have to make a coherent opening statement Monday morning, when they do not know if a huge item of evidence is going to be admitted or not? And this is fair? Not fair to either party, so who is it fair to?

    Estragon in reply to xlr8. | June 21, 2013 at 10:45 pm

    That’s the way I understand it.

    Any such uncertainty is “more” unfair to the defense. The prosecution must already consider their case provable, so the remaining issues are merely supporting to it (at best). But the defense might be able to construct an entire theory of the case differently if they know what evidence will or won’t be allowed.

    Allowing the State to get away with such late production of discovery is to my mind prima facie evidence of prejudice, not to mention the unconscionable delay in these evidentiary rulings.

      JackRussellTerrierist in reply to Estragon. | June 21, 2013 at 11:57 pm

      Yes, the judge is enhacing the damage to the defense by further delaying rulings on evidence. She is trying to handcuff ad muzzle the defense.

      I hope that the defense just goes for broke and assumes that information given late or otherwise by the State is coming in and goes ahead and uses any of it to their advantage. I my opinion, the judge has already demonstrated bias in favor of the State, so the defense doesn’t have anything to lose by speaking about it. If it pisses the judge off, so what? She is unfair anyway. The defense attorneys’ first duty is their client’s defense, not tippy-toeing around a biased judge.

I have never understood Judge Nelson’s rush to try this case.

It is interesting to compare the George Zimmerman case with the Casey Anthony case. Both were charged with murder, albeit different degrees of murder. Both cases drew national (even international) attention. Both drew a massive amount of pretrial publicity, protests, and threats against the defendants and their families. Both involved questionable scientific methods. Both defendants were, in my opinion, overcharged. Both cases included a large number of exhibits and witnesses. And of course both trials are located in Florida. There may be other similarities, but these come first to mind.

Casey Anthony was arrested around October 14, 2008, and opening statements were heard on May 24, 2011 — 952 days between arrest and opening statements.

George Zimmerman turned himself in on April 11, 2012, and opening statements will be heard on June 24, 2013 — 439 days between arrest (turning himself in) and opening statements.

In other words, the George Zimmerman legal team had only 46 percent of the time to prepare for trial that Casey Anthony’s legal team had.

So why the rush? There may be a rational justification for the rush, but I am unable to think of one. I don’t know that Judge Nelson has offered a justification.

How extensive are the grounds for a successful appeal based on the Judge’s decisions and prosecutor behavior to date?

[…] at Legal Insurrection, is writing on the Zimmerman Case.  I recommend his writings in general, and this one in particular.  No judge wants to enter into a contentious, highly charged trial with any of these issues […]