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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