Today saw the completion of opening statements and the launch of the State’s case, with four of the State’s witnesses being brought to the stand. In a nutshell, I thought the defense did a far superior job in cross-examination than the State did on direct, with it’s own witnesses, which does not bode well for the State’s prospects in this case. Here’s the play-by-play.
Chad Joseph is the son of the girlfriend of Trayvon’s father, who lived in the same townhouse community as George Zimmerman, and who owned the home that Martin was purportedly returning to following his trip to 7-11. He was 12 years old at the time of the event, and appears to be 13 or 14 years old today.
Joseph’s testimony was mostly monosyllabic, and not particularly interesting. His appearance as the first witness suggests that the State intends to step through it’s witnesses in chronological sequence (and this impression was confirmed by the order of subsequent witnesses). To this lawyer’s eye he had been very carefully coached–which is totally legal, when limited to truthful responses, as appears to be the case here–and when the defense questioning threatened to veer off the carefully prepared terrain of the script Joseph’s memory of that day became evanescent.
In brief, Joseph and Martin had been at the mother’s townhouse playing video games and watching television earlier that day. At one point Martin decided to go to the 7-11, and Joseph asked him to bring back some skittles. The State stepped Joseph though the events of the day, with nothing dramatic emerging, and then stepped down.
Cross-examination was more interesting. O’Mara, clearly handling Joseph carefully, asked him how many hours that day he and Martin played the video game. “I don’t remember.” Well, how long did you watch TV? “I don’t remember.”
O’Mara asked if he was familiar with the dog walk behind the townhouse, and Joseph said he was. Did he know the dog station at the end? Yes. Had he ever walked it? Yes. How long did it take to walk it?
Here Joseph appeared to pull back, saying he didn’t know. Do you know how far it is to walk it, asked O’Mara. Joseph grunted in reply.
Then O’Mara got clever. Do you think, he asked, you could throw a baseball from where your townhouse is to the dog station? Yes. How about a softball? I don’t know. A football? Yes.
In this way, although O’Mara couldn’t get Joseph to commit to a definite length for the distance from the dog station to the townhouse, we now have in evidence that it’s no farther than a 12- or 13-year-old can throw a baseball or football.
At that point the defense had no more questions, and Joseph was dismissed.
The State had Gaugh identify the location of the store, as well as the video images caught by the security cameras. They had Gaugh step through the video, not quite frame by frame, and then were done with him.
Again O’Mara proved quite clever. One of his first questions to Gaugh seemed to come out of the blue: “Do you actually remember any of this that you just testified to?”
“No, sir,” Gaugh answered.
“So, you’re just looking at the video tape, and we’re asking you what you would have done, and you’re telling us, but you don’t actually remember it.”
“No, sir.”
“No more questions, your Honor.”
Noffke is the operator that can be heard on Zimmerman’s non-emergency 911 call ( which can be heard here:
Zimmerman Trial: Myth Busters: Did Zimmerman really “racially profile” Martin?
Zimmerman Trial: Myth Busters: Did Zimmerman really “racially profile” Martin?
and here:
Myth Busters: Did Zimmerman “Chase Down” a Fleeing Martin?
http://lawofselfdefense.com/zimmerman-trial-myth-busters-did-zimmerman-chase-down-a-fleeing-martin/
The State first stepped Noffke through the logistics of taking and characterizing a non-emergency or 911 call. They also sought to suggest that Zimmerman’s leaving the car was not in response to the dispatcher’s question, “Which way is he running,” but rather that both happened simultaneously. This is a difficult point to make, however, when one is simultaneously playing the audio tape in which the events are clearly sequential.
The State also asked Noffke why he didn’t simply order Zimmerman not to follow Martin–giving the lie, by the way, to the enduring myth that Zimmerman followed Martin contrary to police orders–and Noffke answered that it was against policy because it could make them liable for the consequences.
The State soon got to their primary point of discussion, however–Zimmerman’s cursing on the audio about how “those assholes always get away,” and “fucking punks.”. The State very much needs Zimmerman’s cursing to be seen as an indicia of hatred or evil intent if they have any hope of getting even in the vicinity of second degree murder.
The State also sought to suggest that there was some bad intent in how Zimmerman initially agreed to meet the police at the clubhouse, than switched to his vehicle, then suggested that they phone him when they arrived to arrange a meeting point.
Finally, the State sought to suggest that the fact that Zimmerman mentioned Martin’s race twice might indicate some racial motivation for his conduct towards Martin.
O’Mara once again excelled on cross examination. He stepped Noffke through the audio recording bit by bit, just as the State had done. He asked Noffke if he had been trained to assess a person’s demeanor and state of mind over the phone–were they angry, intoxicated?–and he answered that he was. Periodically, including at the points where Zimmerman curses, O’Mara stops the audio and asks Noffke for his professional assessment.
O’Mara: “Do you hear any anger in that voice?” Noffke: “No, sir.”
More audio . . . stopped.
O’Mara: “Has the caller evidenced any anger or animosity yet?” Noffke: “No, sir.”
More audio . . . Zimmerman saying, “These assholes, they always get away.” Stops the tape.
O’Mara: “Any anger in that comment?” Noffke: “It sounded calm to me.”
Finally at the end of the tape, O’Mara asks: “Do you have any concern in how Zimmerman presented to you?” Noffke: “No, sir.” “In any of the words he said?” “No, sir.”
O’Mara also followed upon the issue of Zimmerman switching the meeting point from the clubhouse to the vehicle to the phone, which the State had suggested indicated some surreptitious motive on Zimmerman’s part: O’Mara: “Did that give you, the person listening, any cause for concern in how Zimmerman was acting?” No, sir.”
Finally, O’Mara returned on the point at which the State had suggested that Noffke’s telling Zimmerman, “Wed don’t need you to do that,” with respect to following Martin suggested that Zimmerman was somewhow disobeying an instruction. O’Mara asked if Noffke could understand how asking Zimmerman, twice, about the direction of Martin’s direction of flight might have been reasonably interpreted as a reason to get out of the car to determine the answer to the question. Noffke responded, “I understand how someone could have misinterpreted the intent of that.”
When O’Mara was done the State chose to re-direct. When you hear someone refer to another person as a “Fucking punk,” they asked Noffke, do you think that they feel warmly towards that person. He answered in the negative.
Then O’Mara came back on re-cross. O’Mara: “Let’s be clear, I though you cleared this up earlier. The hostility one might assume would come from “fucking punks” in many circumstances, did you hear any such hostility in that specific conversation? Noffke: “No, sir.”
On the issue of Zimmerman having mentioned Martin’s race twice (the first time in direct response to Noffke’s query on the issue), O’Mara asked, “When you asked him race, and he said “He looks black,” did that seem definitive to you?” Noffke: “No, sir.” O’Mara: “And when he got a better look, when Martin was approaching his car with his hands tucked in his waistband, did it seem to you that he was just confirming the race?” Noffke: “Yes, sir.” O’Mara: “Did it seem he was saying black twice because there was some racial overtones?” Noffke: “No, sir.”
The State’s final witness for the day was Ramona Rumph, the deputy director of the Seminole County Sheriff’s Office, and custodian of the relevant 911 and non-emergency records. As the appointed coordinator of his community’s Neighborhood Watch Program, it often fell to Zimmerman to phone the police to report events of concern in the neighborhood. The State now appeared to seek to submit into evidence every such instance of Zimmerman calling over a 6 month period.
The defense didn’t object to the first such tape, but when it became clear that the State was going to continue through all of them they objected on grounds of relevancy. This led to a discussion with the Court (with the jury safely tucked out of the way) on the issue. The State claimed that the recordings were relevant to establish Zimmerman’s state of mind on the day of the shooting–and remember, they have to prove, beyond a reasonable doubt, that Zimmerman possessed a “depraved mind” under Florida law (see: Getting to Murder 2: Finding George Zimmerman’s “Depraved Mind”) if they are to have any chance at second degree murder. The defense disagreed. Given that it was late in the day (about 4:30PM), the Court decided to adjourn for the day to give the parties time to research the law and come back to court tomorrow at 8:30AM to hear the issue before the jury was seated.
Getting to Murder 2: Finding George Zimmerman’s “Depraved Mind”
In terms of end-of-day conclusions for these first four witnesses, I have to say that the defense did a much better job in cross-examination than the State did in direct, certainly for all three of the witnesses fully completed. Of course, the job’s quite a bit easier when the facts are on one’s side.
That’s it for tonight–we’ll be back tomorrow morning at 8:30 to cover the second day of State of Florida v. Zimmerman.
See you there.
–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!
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