Most Read
Image 01 Image 02 Image 03

Judge to rule in morning about Trayvon fighting texts after contentious nightime hearing

Judge to rule in morning about Trayvon fighting texts after contentious nightime hearing

A hearing was held this evening, concluding just before 10 p.m.,  on the attempt of the defense to introduce expert testimony as to text messages regarding fighting found on Trayvon Martin’s cell phone. The judge previously had ruled that such social media evidence could not be mentioned in jury selection or opening statements.

A large group of texts and photos were released in late May, but only some of them are at issue now.

The judge expressed concern (full embed below) about admissibility on ground of authentication, that the defense could prove that the texts were to and from Trayvon’s phone, but could not prove that Trayvon was using the phone at the time. “I don’t have any identifying marks that these text messages” were sent by or from Martin. “Another person may know that password.”

The hearing was highly contentious, with defense lawyer Don West vigorously asserting that failure to allow the evidence would violate Zimmerman’s constitutional rights, and blaming the prosecution for withholding evidence until early June as to the texts.  West argued that it was unfair to hold the defense to strict authentication standards given the prosecution’s tactics.

The fireworks started about mid-way through this clip:

Mark O’Mara complained that given how late it was the defense could not have the rest of it’s case lined up for the morning, and West said at the end of the clip as the judge was walking out that he’s physically unable to keep up this pace.

The texts in question were early in February 2012, just a week or so prior to the shooting at issue in the case.

One of the texts in question spoke about punching someone in the nose and making them bleed.

As well as communicating with his half brother regarding fighting.

The testimony of Richard Connor showed a heavy flow of texts about fighting

The texts were kept in double password protected folders.

The defense did not seek to introduce a photo of a gun found on the fun, stating that they had not yet connected it to the evidence introduced so far.

But the defense does want to introduce a photo on the phone showing Martin’s physique. Although the photo was not shown on camera at the hearing, I believe this is the photo:

Trayvon Martin cell phone photo of himself

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

ScottTheEngineer | July 9, 2013 at 10:05 pm

I was expecting the prosecutor to do a ground and pound on West after West called them out on tactically delaying the release of evidence. Done at ten be back by 8. Rough night. The judge is totally screwing them.

Lets keep the jury in the dark, so an innocent Hispanic can face a life sentence

Mansizedtarget | July 9, 2013 at 10:07 pm

This judge has forgotten that it’s the accused entitled to due process, not the jury or the judge. Their convenience is of little moment to the accused facing 30 years in jail. What a raging bitch Nelson is. She’s back to her old ways.

If she denied the animation, I’d find that forgivable. Indeed, I am skeptical of that kind of evidence when no objective data, like a crashed car and skid marks or bullet trajectories are involved.

The texts, particularly re: fighting, are directly relevant under self defense law and issues of authenticity and meaning can be dealt with on cross. Under prosecution’s nihilistic view, we can’t believe anything anyone says because everyone’s words mean different things. A “fight” is not a term of art. It’s not like they’re talking about “pretzels” or some drug slang and whether it means one or 100 kilos. It’s pretty straightforward that this evidence shows Trayvon knew how to fight and fought a lot, unlike the “soft” Zimmerman. The gun stuff might be prejudicial.

Wow that was fantastic viewing. My only thought during the whole thing … Too bad the expert witness couldn’t verify the date and time the texts and pictures were deleted.

Imagine if it happened after TM was killed, and when in the possession of he prosecutors? I wouldn’t put it past them.

    caseyanderson2112 in reply to GRuggiero. | July 9, 2013 at 10:57 pm

    The structure of the database on the phone must be compared to the software’s standard database structure to ensure that the data fields containing delete time/date/user weren’t removed from the phone. Any reasonably professional database has that information as a matter of course. This phone’s database has been tampered with, I would bet the mortgage on it.

      Surely Trayvon didn’t tamper with his own phone, so the only reason I can see for it to have been tampered with is to prevent the defense from using it at trial. I’m pretty sure that evidence tampering is a felony. Isn’t prosecutorial misconduct grounds for a JOA?

Brady? Never heard of ‘im.

I think that Travon’s propensity to fighting is directly related to the case. The judge is setting herself up to be reversed….again.

Humphreys Executor | July 9, 2013 at 10:13 pm

This is about as close to “Trial by combat” as one can get in these modern times.

    Harperman in reply to Humphreys Executor. | July 9, 2013 at 10:35 pm

    West and BDLR with dueling pistols at 30 paces? LOL

      Nohbody in reply to Harperman. | July 10, 2013 at 3:05 am

      With the Judge in the middle?

      Pretty please?

      (No, I’m not serious, but then neither was the duel suggestion. Her “Honor” being shot for her actions is extreme – even more than how she’s mostly kissed the prosecution’s backside with her procedural judgements.)

I believe that the Judge will do what she can to make sure that a verdict is not rendered on a Thursday – Sunday period because of the possibility of rioting over the weekend.

A remarkable finish tonight, and under the stress of a long day the true colors of Judge Nelson come out. She was nasty in her summation of the value of the information on TM’s phone, and double nasty in not allowing time for the defense to prepare for the morning unless perchance they can catch a few minutes of sleep on one of the wooden courtroom benches.

Am I wrong, but didn’t the specialist prove the point that the Trayvon picture and texts, being double hidden and taken BY THAT CAMERA, self-authenticate?

    GRuggiero in reply to Bryan24. | July 9, 2013 at 10:20 pm

    The picture taken of himself does, I would assume. The texts are different. I assume the court or prosecutors want us to believe the mother sent them to TM’s friend, because she pays the bill and may know the password.

      txantimedia in reply to GRuggiero. | July 9, 2013 at 10:58 pm

      But someone else would have had to have known three things; the password to the phone, the existence of the hidden texting application and that application’s password. The likelihood of that being anyone other than Trayvon is exceedingly low. So low as to be laughable.

      If the judge rejects the evidence on authentication grounds, she will be reversed on appeal – if the jury has lost their minds and find him guilty.

      This prosecution is the most corrupt, evil, inept team of lawyers I have ever seen.

      The “mother” pays the bill? Are you talking about $$ybrina Fulton?

      The original story is that it was Tracy Martin who paid the bill for Trayvon and 3 others.

      I have one other person on my bill, a “friends and family” kind of plan, but that in no way means that I have access to the passwords they enter on their own phone, and especially not on any apps they may have downloaded. Even standard apps like Facebook, their password is completely their own, and on apps deliberately meant to hide text and picture files, no way am I even going to know they’ve downloaded that app, let alone what their encryption key is.

If it bleeds, it ledes. Unless it upsets the narrative.

    graytonb in reply to Fabi. | July 9, 2013 at 10:59 pm

    Come on, Fabi… you know that when TM typed ‘ he didn’t breed enough ‘ that’s what he meant. Surely he wasn’t really meaning ‘ bleed ‘ .
    /sarc/#funnythingsstatewantsyoutobelieve

      Fabi in reply to graytonb. | July 10, 2013 at 12:22 am

      Mea curpa!

      Think of the permutations on that comment alone:

      “He didn’t breed enough”… could it be that TM meant that the other guy did not fornicate enough?

      OR

      Could it be a keyboard error? Yes that dreaded keyboard again.

      Tempname in reply to graytonb. | July 10, 2013 at 1:53 am

      “He dint breed enuf”

      How the prosecution thinks the conversation went:

      “Why are you still fighting?” (Fighting to be redefined at a later date)

      “My opponent had insufficient progeny”

      To support their claim, none of Trayvon’s sparring partners had children.

Had the Defense been afforded adequate time, it’s likely they could have found the people on the other end of the text messages and authenticated that way.

Geeze….this was exhausting to watch. Cannot even begin to imagine how tired the folks in the courtroom must be.

Whether these were texts composed by Trayvon Martin or not, they are data that was on his cell phone. The defense can argue that they were his, and the prosecution is free to argue they could have been sent by someone else. Let the jury decide what to believe. This a man’s life! He deserves for the jury to hear all of the possible evidence.

Ugh, I have been trying to keep an open mind about this judge but tonight it’s difficult.

    fogflyer in reply to MegK. | July 9, 2013 at 10:32 pm

    Exactly!
    I have not been as hard on this judge as others have, but tonight she lost me.
    I do actually feel that not allowing the overwhelming evidence that Trayvon liked to fight, does indeed violate Zimmerman’s constitutionally guaranteed right to a fair trial.

Actually the photo was shown when the judge was flipping through her pages looking for the gun photos, and yes, that is indeed the photo they want in.

    Vince in reply to fogflyer. | July 10, 2013 at 6:12 am

    I have a problem with understanding the context gun photo. Were those Trayvon’s hand on the gun? Was someone else showing off their new piece and send it to Trayvon? Maybe Trayvon was just trying to act like he was some big thug and found this gun pic to increase his ‘street cred’? There are so many ways to interpret the meaning of that picture without corroborating 3rd parties.

eaglesdontflock | July 9, 2013 at 10:27 pm

How many reversible errors, discovery violations, tantrums does it take. This is the really, really ugly side of ‘justice’. Terrible judge, nasty, unethical prosecutors. I’m almost sorry I’ve watched this case. It’s a microcosm of what’s wrong with our country. The whole business about authenticating the text messages, in the presence of a secure password protected app and multiple passwords, and her bench tantrum, leaves me cold. As West said: “What does it take?”

    Harperman in reply to eaglesdontflock. | July 9, 2013 at 10:32 pm

    What does it take? Well a judge interested in justice rather than following marching orders would help considerably. This judge has consistently shown bias against the defense and has already been overturned on it repeatedly.

    this case is disgraceful.

    I am an outsider and even I can see what is wrong with the whole shooting match or shebang!!

    That being said, I do think that some lawyers need to write up this case. I think it needs to be a case that is studied at law school. It is a case that should be studied at judges school… oh wait a minute they do not have a school. Maybe that is what is wrong with your system and my system. People get appointed to the bench and they are nothing more than political hacks… in your case you actually vote them in to the bench!! I can see what is wrong with out system and with your system!!

DINORightMarie | July 9, 2013 at 10:31 pm

The verdict is already in this judge’s mind.

She is a travesty of justice and the law.

Thankfully, for Zimmerman, there is an appeal process.

The defense is working against such hostility and hideous bias, I give them great credit for their efforts.

I hope this jury isn’t going to rule based on the negative propaganda, and obvious “popular” anti-Zimmerman racialist narrative. We can only hope they will see the facts, declare innocence, and then seek protection as THEY will be targeted, as well, by the OH! so “tolerant” and “little people” loving leftists who have been race baiting since the beginning.

May justice and the law prevail.

    fogflyer in reply to DINORightMarie. | July 9, 2013 at 10:40 pm

    Even with all the state’s underhanded tactics…. Even with the judges biased rulings… Don’t forget, we still have a jury in there that has heard the same testimony we have. They may not know all the details of Trayvon Martin’s background, but they do know that the state has not proven their case beyond a reasonable doubt, and I am confident that we will see George acquitted.

      Estragon in reply to fogflyer. | July 9, 2013 at 11:23 pm

      I think Nelson knows there is no case, so she isn’t worried about being reversed. She is going out of her way to demonstrate she won’t let Zimmerman off on “technicalities” so as not to feed the fires of rioters with claims against her. And she is managing the trial to try to manipulate the timing of the jury getting this case.

      I think Zimmerman has plenty of ammo for a new trial, but that doesn’t pay his lawyers for another year’s work or him for another year of his life in limbo.

      It’s a travesty. The Governor should, if a guilty verdict emerges, immediately pardon Zimmerman. Of course, that would lead to rioting and looting, and wouldn’t save Zimmerman from a trumped-up civil rights prosecution by Holder.

    graytonb in reply to DINORightMarie. | July 9, 2013 at 11:03 pm

    The travesty in his case is that when the prosecutor asks lesser includes be given to jury, they( jury ) may believe in error that a manslaughter verdict will be a fair split and give GZ a much lighter sentence. It simply won’t. FL minimums will put him in prison for 30 years.

Trayvon din’t no nuffin’ bout no fightin’, sirrrr. He a momma boy!

The defense calls Rachel Jeantel to the stand…

The info that was deleted does have a time stamp. All electronic data has a creation, modified and deleted timestamps. If the prosecution didn’t slow roll discovery the defense may have learned that and had an expert check that out. But they rec’d file just before trial started.

    Harperman in reply to styro1. | July 9, 2013 at 10:39 pm

    Gee how many times have we heard that now?

    caseyanderson2112 in reply to styro1. | July 9, 2013 at 11:00 pm

    Unless the database structure and contents were compromised. That’s why the software’s standard DB structure must be compared to the structure on TM’s phone. That’s critical because NO semi-professional database is created without timestamp information on each and every action on that database. It just doesn’t happen.

      byondpolitics in reply to caseyanderson2112. | July 9, 2013 at 11:17 pm

      The expert was talking about the phone’s SQLite database BUT these files were NOT contained within the normal database. The phone had at least two separate apps that hid files from “normal” apps. So, one app looked like a french language app, but stored the text messages. An app hid pictures by changing the extension from .jpg to .bin and then could open those as pictures.

      I hadn’t realized there was a market for apps like that (I tend to be naive), but it makes total sense. Since those apps are designed to protect the user from prying eyes, I can believe that it masked the “destroy” information. In other words, this is not your father’s CRUD machine.

        caseyanderson2112 in reply to byondpolitics. | July 9, 2013 at 11:32 pm

        Oh I missed that piece, it’s an SQL light database? Hmmm. Okay, I’ll buy that as a possibility. Yet the ISP has a copy of the data does it not? I am so disgusted with our legal system. Watching this trial has soured me completely on the judiciary.

      It’s a little app for storing ‘tweets’ and pics, not Oracle Database 11.

    robbi in reply to styro1. | July 9, 2013 at 11:18 pm

    The Fourth Judicial Circuit Information Technology Director found over 1000 texts, pics, deleted from Trayvon’s phone.
    “Kruidbos said that after discovering the new information, which he handed over to prosecutors, he hired a lawyer because he wasn’t sure whether the information would be turned over to the defense and he was afraid he might be implicated.”

    http://www.cbsnews.com/8301-504083_162-57588085-504083/george-zimmerman-trial-judge-to-weigh-possible-prosecutor-sanctions-post-trial/

      Uncle Samuel in reply to robbi. | July 10, 2013 at 3:20 am

      Too bad he didn’t copy ALL the files and put the copies in a safe place with letters held by his attorney and another person, giving the location in case of his demise.

Hey folks,

Well, well, well, I take a couple hours off to return a motorcycle lift to the buddy I borrowed it from, and look what happens.

Thanks to the Professor for stepping in and getting a post up tonight.

I don’t have much to say, myself, at the moment, not having seen the events. But I’ve got the video bookmarked, and will get up EXTRA early tomorrow to view it before the day gets started. A-W-E-S-O-M-E

Incidentally, seems today that Amazon lowered the price of “Law of Self Defense, 2nd Edition” to $33 and change–which is totally their right, and not something under my control. But it makes no sense for me to be selling the book at a higher price than Amazon, so we’ve matched that price over at http://www.lawofselfdefense.com.

Also, coupon for NRA/IDPA members of $5 off and free shipping is still active, use code LOSD2-NRA at checkout if applicable. Coupon only works at http://www.lawofselfdefense.com, though, not at Amazon.

–Andrew, @LawSelfDefense

    McCoy2k in reply to Andrew Branca. | July 9, 2013 at 10:59 pm

    How about a coupon for Legal Insurrection participants?

      You’re quite right, sorry, just been overwhelmed with work.

      EFFECTIVE IMMEDIATELY: I’ve instituted a Legal Insurrection coupon, equivalent to the previously mentioned NRA/IDPA coupon–$5 off, and free shipping.

      Coupon code is: LOSD2-LI (but it’s not cap sensitive)

      Sorry for not thinking of it sooner.

      If anybody feels like they got short-changed, email me and we’ll work something out.

      –Andrew, @LawSelfDefense

    Harperman in reply to Andrew Branca. | July 9, 2013 at 11:06 pm

    That’s too bad about Amazon. A fellow should get full price for his work. Of course that’s easy for me to say as I didn’t buy a copy; one of my shooting students bought it for me as a birthday present!

      I get paid the same by Amazon regardless of what price they charge for the book–that’s why it’s totally up to them to set whatever price they want.

      Of course, if they lower the price it obviously affects the price on my own site, I’m rather compelled to match.

      But if I wanted to get rich, I wouldn’t have taken up book writing. 🙂

      –Andrew, @LawSelfDefense

    Humphreys Executor in reply to Andrew Branca. | July 9, 2013 at 11:08 pm

    Darn, I bought the book but missed out on the NRA discount (NRA Foundation member) But, I don’t want a discount, just have a beer on me as a token of my appreciation for your absolutely hilarious running tweet commentary. It’s a whole new form of entertainment! Cheers.

    JstJoan in reply to Andrew Branca. | July 10, 2013 at 12:23 am

    Andrew, I’ve been following your posts and live-tweeting for several days now and I’m grateful to you and to Professor Jacobson for all of your informative insights about this trial. Just ordered a copy of your book using the NRA discount (became a member earlier this year during Obama’s gun grab) and am looking forward to reading it. Thanks for all your hard work!

Mr. Branca,

You might not want to watch the judge. She’s pitiful.

Not that they would do it for the obvious reasons….but it would be a hoot if George or one of the lawyers “slipped” on the court house steps and “hurt” his back…having to spend a few days in the hospital. The major blowback would be the jurors getting upset over the delay and taking it out on the defense and George.

    GRuggiero in reply to mwsomerset. | July 9, 2013 at 10:51 pm

    I was thinking a lawyer should bring this evidence out during final summation, and then apologize for ringing the bell.

    Is there any appeal procedure during a trial, to delay it?

    cjharrispretzer in reply to mwsomerset. | July 9, 2013 at 11:12 pm

    I remember during the Jodi Arias trial, poor poor Jodi got a migraine every other day and everyone would be sent home. Of course, the jury wasn’t sequestered, but still. That trial lasted 6 months…oh, and she delayed going to trial for 5 years! To go from watching that case, with a wussy judge who was scared of the defense and being appealed….to immediately watching this case, is like being in Wonderland. It’s night and day. I can’t believe Judge Nelson acts like this knowing the whole country is watching her.

If this comment is inappropriate, please delete.

Kindly consider a contribution to the GZ Legal Fund.

Can you imagine where GZ would be with a public defender? Without the expert witnesses? How would you feel going up against an entire state and the left wing media apparatus?

If Obama had brothers and a sister in this country they’d look like the judge and executioners I mean the prosecutors.

[…] I take it you didn't check out the last part of the trial. Trayvon was no kid. He was a young man that had a history of fighting and wanted to hurt people. Don't believe me, then read what Trayvon himself had to say about it. There should be NO more talking about Trayvon like he was a damn kid. Read his texts about how he talks about beating people on the ground MMA style just like what he did to Zimmerman. There should be NO ONE at this point that thinks Zimmerman is guilty. It is clear Trayvon was a thug and this was nothing but a political show trial. For anyone that blames Zimmerman for anything, then I have to wonder if you also blame rape victims. It is sick to try and justify Trayvon attacking Zimmerman because he thought he was being followed – it's just wrong on so many levels. We can't tell our children that Trayvon's response was appropriate and anyone that does should be ashamed. Tonight's trial ending was an embarrassment to our legal system and Zimmerman's constitutional rights have been violated. Here's a legal blog summarizing what happened tonight: Trayvon Martin | Text messages | cell phone photos […]

If a jury is allowed to see these texts and/or photo(s) – then the odds for a dismissal go way up. There is no way a jury convicts if they see that evidence.

Zimmerman deserves his constitutional rights – in this case of due process, no matter what the concern is over rioting this coming weekend.

    txantimedia in reply to McCoy2k. | July 9, 2013 at 11:05 pm

    If I were the defense, I would tell the judge in the morning that due to the many adverse rulings, they will have to put on a more vigorous defense, and it will be a week from tomorrow before they can complete all the testimony they need to bring in. Surely the judge cannot deny them the right to bring in more witnesses, even though she’s been pushing to finish, finish, finish.

    Run out the damn clock. Let the fat ass sit there and listen to several more days of George is innocent, George is innocent, George is innocent.

      Gremlin1974 in reply to txantimedia. | July 10, 2013 at 1:44 am

      I think the only thing they could really do is ask for a mistrial and I don’t want that for Zimmerman and his family or the Martin family.

        MouseTheLuckyDog in reply to Gremlin1974. | July 10, 2013 at 2:19 am

        If a mistrial happens, then I suspect we will never have a second trial unless the judge schedules it to start the next week or so.

        Once a mistrial happens the defense can take the JoA motion to an Appellate Court where I am sure they will overturn Nelson’s ruling.

          MouseTheLuckyDog in reply to MouseTheLuckyDog. | July 10, 2013 at 2:21 am

          Sorry. I forgot to ask if there is a written version of the judges ruling on JoA, ( I think there almost has to be one. ) and where can I find it?

Thank you so much to Professor Jacobson and Mr. Branca for your excellent up-to-date coverage of this case. I haven’t been able to catch most of it live, so it’s been great to be able to “tune in” to this blog when I have time, and catch up.

Also, some of the commenters here are terrific as well. All around “good value”. I ordered your book last night, Mr. Branca, and I’ll contribute to the LI building fund on Friday. Thanks again!

caseyanderson2112 | July 9, 2013 at 11:02 pm

Isn’t there anyone over Nelson who can put a stop to this travesty immediately and ensure a decent trial? Anyone? This is something I’d expect to see in a banana republic or an islamic sewer, not the United States of America.

    cjharrispretzer in reply to caseyanderson2112. | July 9, 2013 at 11:17 pm

    Nope…no one.
    Courtrooms are like little feifdoms.

    JackRussellTerrierist in reply to caseyanderson2112. | July 9, 2013 at 11:37 pm

    I would LUV for the presiding judge or somebody to yank Nelson’s ample butt off that bench and replace her BEFORE the trial is over. Let her suffer extreme humiliation.

    Gremlin1974 in reply to caseyanderson2112. | July 10, 2013 at 1:46 am

    Actually, yes, they can ask the court of appeals to over rule her, which they have been successful doing several times. However, that takes time to get the papers ready and then time for the court to respond. Time that at this point the judge is not giving them, I would imagine they barely have time to sleep.

I guess we now know why Lap-Dance Daddy-O didn’t want to hand over TradeMark’s cell phone PIN without first talking to his attorney…

Well, the Donnelly thing could, by some stretch, lead to a mistrial. But I doubt it.

    Gremlin1974 in reply to graytonb. | July 10, 2013 at 1:47 am

    I hope not, that would just mean going through all of this again for Zimmerman, his family, and the Martins. I wouldn’t wish that on any of them.

Seems odd about the text messages and social media being questioned. Both the prosecution and the defense have used Facebook and twitter activity to their advantage. If courts took the path this judge takes with text messages, how is anyone ever convicted for illegal items (like images) on their phones?

    MouseTheLuckyDog in reply to iMark. | July 10, 2013 at 12:39 am

    Not quite the defense has used it effectively the obne time the prosecution used it they looked like blubering idiots.

The judge should be impeached. Unbelievable….

retiredprosecutor | July 9, 2013 at 11:13 pm

I was a prosecutor in New York and California for over 25 years. I tried over 100 jury trials, including capital and non-capital murder cases.

The evidence regarding TM’s fighting history, proclivity and prowness is clearly admissible, especially in light of the evidence introduced by the prosecution regarding GZ’s MMA training.

Simply stated, if the judge excludes this exculpatory evidence it will certainly constitute evidentary error and possibly a violation of GZ’s federal constitutional rights to present a defense and to a fair trial, guaranteed by the 6th and 14th amendments.

If the judge excludes this highly relevant, exculpatory evidence, the only question on appeal (assuming GZ is convicted) will be whether, because of the strength of the prosecution case, her erroneous ruling was “harmless” beyond a reasonable doubt.

Since the prosecution’s case is far from overwhelming. And since the critical issue in the case is self-defense. And since the evidence regarding TM’s fighting goes directly to the question of self-defense. If the judge excludes this evidence, it is a virtual certainty that any conviction that the prosecution obtains (and that is a questionable assumption given the prosecutor’s burden to disprove self-defense beyond a reasonable doubt) will be reversed on appeal.

My prediction: After sleeping on it, and having time to cool off from a long day in court, the judge will come to her senses and do the right thing: Admit the evidence regarding TM’s fighting.

    Well said.
    And while I fervently hope you are correct about the judge’s ruling on this… I don’t think you are.

    As far as appeal…. George has to live long enough for that to happen.

      retiredprosecutor in reply to fogflyer. | July 10, 2013 at 12:14 am

      The judge obviously has very little understanding of what it means to authenticate the text messages as coming from TM. Authentication simply means putting forth some minimal evidence — either direct or circumstantial evidence — establishing that the text messages were sent by TM. The defense has established that the messages were sent from TM’s phone. That evidence, in and of itself, is more than sufficient to “authenticate” the text messages as having been sent by TM. Ultimately, it is up to the jury to decide if the text messages were sent by TM (after the judge acts as a low threshold screener) and how much weight to give to those messages regarding the issue of self-defense.

      If the judge speaks to some intelligent colleagues overnight she will come to her senses and find that the defense has “authenticated” the texts as coming from TM, and admit the text message fighting evidence.

      We shall see.

      retiredprosecutor in reply to fogflyer. | July 10, 2013 at 12:30 am

      You are exactly right. It takes years for appeals to be decided. And, if convicted (unlikely from everything I have seen) GZ would be in prison — most likely in isolated segregation for his own safety — for many years before his conviction was reversed.

      Therefore, if the judge excludes the “fighting” text messages, the defense has to seek what is known as an interlocutory appeal and/or writ of mandate. That basically means an appeal (of the judge’s text message ruling) while the trial was still in session.

      NOTE: Mid-trial appeals and/or writs of mandate are RARELY granted by appellate courts. But, in some exceptional cases, if it appears that the judge’s ruling is clearly erroneous and will, because of its importance to the central issue in the trial (in this case self-defense), deny the defendant his constitutional right to a fair trial, an appellate court will step in and reverse the trial judge’s ruling.

      Will that happen here if the judge sticks to her mistaken position regarding the admissibility of the “fighting” texts? Unfortunately, I doubt it, based upon my 30 years experience as an attorney.

        MouseTheLuckyDog in reply to retiredprosecutor. | July 10, 2013 at 1:10 am

        I thought it was called Writ of Mandamus ( the Latin version ).

        I was wondering that OMara, as an ex-prosecutor, must have a few judge or ex-judges as friends. I was wonderingif he asked one or two to stop by the court and see what is going on. Bring an appellate judge along with them if they can.

        Even if not I think this is a case where a writ almost would be granted.

    cjharrispretzer in reply to retiredprosecutor. | July 9, 2013 at 11:24 pm

    If you were next to me in person, I would bet you $$ that she will rule in favor of the state. She will also do something in regards to witness Donnelly to take away from his impactful testimony. This Judge does not care how blatantly wrong she is, she will rule against GZ every chance she gets. Which also means she won’t let in the animation. Sad.

      caseyanderson2112 in reply to cjharrispretzer. | July 9, 2013 at 11:37 pm

      I’d love to see the expressions on the jury’s faces if Nelson tells them, “the Viet Nam medic’s testimony isn’t allowed, you must scrub it from your brains.” That would ensure each juror kept Donnolly’s (sp?) every word and nuance in mind as it adds an otherwise missing emphasis to his testimony. Once the cat is out of the bag there’s no putting him back in.

    JackRussellTerrierist in reply to retiredprosecutor. | July 9, 2013 at 11:47 pm

    I just wonder how many judges and others, such as law professors and prosecutors, who are friendly to Nelson have been yammering in her ear for the last hour trying to get her to come to her senses.

    Does she have ANY idea how petulant and biased she came off as tonight? A glimmering of a clue?

    Is she good friends with Corey? One wonders.

    Narniaman in reply to retiredprosecutor. | July 9, 2013 at 11:47 pm

    All very true. . . .and, I fear, irrelevant.

    I think the Judge wants to do everything she can to assure a conviction — on the assumption that anything less than a conviction will create a “Rodney King/burn, baby, burn” scenario.

    If she does get a conviction, even if the case is appealed and overturned, she won’t have rioters this weekend coming after her. And even if there is an acquittal, the media won’t be criticizing her for letting the jury know that St. Skittles fancied himself a martial arts warrior.

    So — my prediction — no animation, and for sure, no text messages from Trayvon. . . . .

    I gave a thumbs up because of your explanations BUT I think you see Debbie with rose coloured glasses.

    I say that because of her previous rulings. As an outsider I do not share your faith in her ability to use reason.

Thank you, Mr. Jacobson, for the excellent late-night summary post. Unable to watch LIVE, I greatly appreciate it.

Wow watching the late night court issues was distressing, this is justice in the USA? The judge walking away without replaying to West was just beyond words.

byondpolitics | July 9, 2013 at 11:23 pm

I don’t know if you all have seen these files but they include the text messages that were discussed this evening. Really disturbing stuff.

It’s also clearly Mr. Martin, from context. He talks about his suspension, having to move to his dad’s house (his mom kicked him out), when he was on the bus to Orlando, texts from his parents, etc. etc. He even once gives someone his full name. Matching up those statements with actual events demonstrates that it was clearly him sending the texts.

http://www.gzlegalcase.com/index.php/court-documents/174-defendant-s-3rd-supplemental-discovery

txantimedia | July 9, 2013 at 11:24 pm

Where did that bozo go that was arguing about the DNA the other day? I want to see him post about how wrong Dr. Di Maio was today in his testimony about the DNA evidence.

Was it bdr? btr? I can’t remember. Oh bozo. Come out, come out, wherever you are….

The last line, citing the constitutions, he finally went “Perry Mason”, something I suppose only normally exists in television trails. No?

    retiredprosecutor in reply to mzk. | July 10, 2013 at 12:36 am

    Defense attorney West had to cite the Florida and United States constitutions in order to preserve the issue for appellate review. Not “Perry Mason” stuff.

+1. Retiredprocecutor, I agree. The case already is a slam dunk decision for the jury. If the evidence regarding Trevon Martin’s fighting history is admitted, the only thing left that would be more compelling would be actual video of what happened.

    retiredprosecutor in reply to [email protected]. | July 10, 2013 at 12:49 am

    Well stated. Yes, if the jury decides this case upon the law and the facts, as they have sworn to do, this case isn’t even a close call.

    In particular, one of the Florida jury instruction that the judge must give the jurors states that the jurors must acquit GZ if, and this is critical, the prosecution does not prove, beyond a reasonable doubt, that the killing was NOT in self-defense. Under the facts before the jury, it is virtually impossible for the prosecution to prove beyond a reasonable doubt that GZ did not act in self-defense.

    Remember, under Florida law it is NOT GZ’s burden to prove he acted in self-defense. Rather, it is the prosecution’s burden to prove beyond a reasonable doubt that he did not act in self-defense.

    This might seem like semantics. But it is not. It is a critical principle of law that leads to only one conclusion in this case: A verdict of not guilty.

    If, and only if, the jury disregards the law and the facts and decides this case based upon emotion (i.e., a fear of retribution if the acquit GZ, or a fear of riots if they acquit, or a desire to find GZ guilty of something because a teenager was killed) will they convict GZ. And, if they violate their oath to follow the law, they will most likely “compromise” and convict of manslaughter, not knowing that such conviction will mean decades in prison for GZ, unless he gets a reversal on appeal.

    My prediction: The jury will find GZ not guilty.

      Gremlin1974 in reply to retiredprosecutor. | July 10, 2013 at 1:53 am

      Which this Judge has already had one decision overturned for NOT instructing a Jury about the Self Defense stuff. I would hope having that happen would mean she would be sure to do it correctly this time, however I have my doubts.

Speaking of televised trials, too bad we won’t get to see this one: It ought to be a doozy….
http://www.usatoday.com/story/news/nation/2013/07/08/fort-hood-shooting-trial-hasan-court-martial/2427095/

If the judge is a ditz, you must acquitz!

Carol Herman | July 9, 2013 at 11:37 pm

Surreal. A scene out of Alice and Wonderland. Plus, the ONLY REASON nelson did this is that she was attempting to BUMP O’Mara and West off their stride! Her motivation was REPREHENSIBLE!

If anyone missed it, prompted by a fellow Legal Insurrection fan:

EFFECTIVE IMMEDIATELY: I’ve instituted a Legal Insurrection coupon, equivalent to the previously mentioned NRA/IDPA coupon–$5 off, and free shipping.

Coupon code is: LOSD2-LI (but it’s not cap sensitive)

Sorry for not thinking of it sooner.

–Andrew, @LawSelfDefense

West is absolutely right when he points out to the judge that it is only due to her denial of the defense’s reasonable motion for a continuance that she is even in this situation – with a sequestered jury and having to go over evidentiary issues like this DURING the trial … during the defense’s case AFTER the prosecution has already rested, no less.

If she had granted the continuance, all of these issues could have been hammered out, the current members of the jury could have enjoyed the 4th of July with their families, and we’d probably be getting started with jury selection right about now. It really is the judge’s own fault, and the defendant should not be punished for the judge’s errors in discretion.

    retiredprosecutor in reply to cazinger. | July 10, 2013 at 1:26 am

    I have personally witnessed many criminal convictions get reversed on appeal (or on habeas) based upon a judge’s refusal to grant a defense request for a “reasonable” continuance to allow them to put on a proper defense. In this case, the defense needs a continuance only because the prosecution dragged its feet in turning over so-called Brady material — information that helps the defense and hurts the prosecution. Accordingly, the denial of a reasonable continuance to the defense will provide GZ with a MAJOR appellate issue, in the unlikely event that he is convicted.

    This judge needs to take a deep breath and regroup her common-sense and basic understanding of the law.

    cjharrispretzer in reply to cazinger. | July 10, 2013 at 1:32 am

    Did you see how red the Judge’s face got when West pointed this out to her? I generally think it takes waaay too long for criminals to go to trial (I am pro victim), but in this case I believe Zimmerman is the victim and have never seen a high-profile murder case go to trial so fast, especially against the wishes of the defendant. Hmmm, what’dya know? The one time the defendant happens to be the “victim”, is the one time the trial actually starts within a short period of time. Such BS!

    graytonb in reply to cazinger. | July 10, 2013 at 1:57 am

    So true……….., and it absolutely infuriated her.

Great. The criminal trial of the decade is looking more and more like a train wreck.

I would have said the pre-trial Frye hearing.

–Andrew, @LawSelfDefense

I don’t understand the difficulty of authenticating the texts. Why can’t they just ask the recipients of the texts who they thought they were receiving them from?

Another thought: The defense should subpoena the meta-data for TM’s phone from the NSA to determine if the texts were sent at a time and place where TM was known to be,

    txantimedia in reply to guycocoa. | July 10, 2013 at 12:08 am

    First of all you have to find a forensics expert to work with the data to see what’s there. Then you have to meet with him or her to get the results.

    If you identify people that he texted with, you then have to find the people. Then you have to depose them. Then you have to get corroborating testimony from other witnesses to make sure witness can’t be impeached on cross.

    All of this takes time.

    Since they didn’t even get the phone data until June 4th and the trial started shortly after, there wasn’t time to do all that. That’s the prosecution’s fault, and the defense should not be penalized for that. But the judge penalized them anyway by forcing them to go forward with the trial without having time to investigate that evidence.

    If she denies their motion now, I believe that will be an incredibly egregious error which will be reversed on repeal.

    Question for the lawyers. Could the defense insist on appealing her decision with an emergency appeal and delay the trial until the appellate court decides?

      guycocoa in reply to txantimedia. | July 10, 2013 at 12:21 am

      I had not watched the video clip from this evening before I posted. After watching the clip I agree with you.

      On the gzlegal documents, W8 is identified as the person in conversation via text message.

      She could be called to the stand to authenticate the messages.

    ChattelPaper in reply to guycocoa. | July 10, 2013 at 12:19 am

    I think the defense would have done that if they had been given the time. However due to the State’s discovery sloppiness (whether intentional or not) and poor trial management (judge’s fault), they haven’t had the chance – and that is not their fault at all. Getting presumably unwilling witnesses to authenticate this stuff now under the pressure of the trial would be an extremely onerous task.

    I would think the defense’s expert and the State counterparts should have all the metadata they need. The judge is likely getting the creepy crawlies about the nature of the information and anticipates being criticized for allowing it. Hopefully as retiredprosecutor said she’ll sleep on it and make a fair ruling.

    The fighting stuff should be allowed in. I’m iffy on the gun stuff for reasons other than authentication but I’m no evidence expert.

I also question whether the texts need authentication. If they are from his phone protected by two passwords, the prosecution could argue the interloper theory on cross or bring a witness to claim they sent them on Martin’s phone.

The jury is capable of understanding and considering the possibility along with the text of the messages.

biglawmonies | July 10, 2013 at 12:06 am

Google Scholar, how does it work?

http://scholar.google.com/scholar_case?case=10160200832537903146&q=text+message+authentication&hl=en&as_sdt=4,10

State v. Lumarque 44 So. 3d 171, 172-3 (Fla Dist. 3d 2010)

“At an in limine hearing, the trial court found the two images and one text message the [defendant’s] ex-wife testified to admissible, but concluded the remaining exhibits inadmissible as the ex-wife could not authenticate them. The court erred. The images and text messages were found on the defendant’s cellular telephone, seized pursuant 173*173 to a search of the defendant’s home through a warrant shortly after the alleged incident. This fact, testified by the State’s forensics expert, is sufficient to authenticate these exhibits.”

    retiredprosecutor in reply to biglawmonies. | July 10, 2013 at 12:19 am

    Exactly what I stated: Authentication of TM’s “fighting” text messages was satisfied by the simple fact that they were found on what was indisputably his phone. End of (authentication) issue! Hopefully, the judge finds that case before court resumes.

      ChattelPaper in reply to retiredprosecutor. | July 10, 2013 at 12:43 am

      Just to add for the curious out there, the Florida authentication standard is “The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Doesn’t say beyond a reasonable doubt!

        retiredprosecutor in reply to ChattelPaper. | July 10, 2013 at 12:54 am

        You are exactly right. Authentication requires a very, very low threshold of evidence — only enough evidence for a reasonable person, using common-sense, to conclude that the texts were sent by TM. The undisputed fact that they were sent from his phone is more than enough.

          biglawmonies in reply to retiredprosecutor. | July 10, 2013 at 1:05 am

          Then add to that:

          1. Expert testimony that relevant texts matched cadence/tone of all other texts on the phone;

          2. Extrinsic evidence that TM bragged about fighting (Jeantel Depo); and

          3. Phone application that required additional level of authentication (lol at 7 year old unlocking that).

          You are right; it’s not even close.

Humphreys Executor | July 10, 2013 at 12:10 am

If this were an ordinary case, Judge Nelson would only be a disgrace to her local community or her state. But because this is a nationally high profile case case, she’s a disgrace to the Nation.

    retiredprosecutor in reply to Humphreys Executor. | July 10, 2013 at 12:58 am

    I wouldn’t say she is a “disgrace.” But she obviously is not among the best and brightest judges on the bench in Florida or any other state. Her complete lack of understanding of the issue of authentication exposed her minimal level of skill and knowledge regarding basic evidence law. Hopefully, she will consult with more experienced jurists overnight and correct her mistaken understanding when court resumes in 10 hours.

    cjharrispretzer in reply to Humphreys Executor. | July 10, 2013 at 1:41 am

    I’m suddenly having flashbacks to the 2000 Florida Supreme Court. They were also a disgrace.

    make that international. There are people all over the world watching this case.

If they don’t get the texts regarding fighting in (they won’t), I hope they reconsider putting forth the THC blood work. While I do not think it is particularly relevant, I just want the jury to at least have an inclination that maybe Trayvon was not he little angel the state is trying to make him out as.

    dale3242 in reply to fogflyer. | July 10, 2013 at 6:50 am

    Martin’s THC level at his autopsy was low and I believe do not indicate that he was “high” at the time of the shooting. However, could he have been in withdrawal? People who are accustomed to common drugs such as caffeine, nicotine, and alcohol, who then stop cold turkey, frequently suffer and become irritable. Could the move to Tracy Martin’s girlfriend’s condo have cut off Trayvon Martin’s source of marijuana?

      txantimedia in reply to dale3242. | July 10, 2013 at 8:08 am

      The level of THC in his blood isn’t the issue. The issue is the presence of THC. The prosecution contends that GZ “profiled” Martin for no reason. On the NEN call GZ said “he looks like he’s on drugs or something”. The fact that THC was in his blood proves that GZ had just cause to find him suspicious and destroys the key element of 2nd degree murder – that GZ had a depraved mind or ill will toward TM.

      I think it’s vital that they bring that evidence in, and I would be surprised if they do not.

        Milhouse in reply to txantimedia. | July 10, 2013 at 11:42 am

        The fact that THC was in his blood proves that GZ had just cause to find him suspicious

        Really?! How does it do that? On the contrary, the THC level in his blood, by proving that he was not on drugs at the time, tends if anything to discredit GZ’s claim that he looked as if he were on them. Really, please explain this claim of yours.

      luagha in reply to dale3242. | July 10, 2013 at 2:54 pm

      When you blood test for marijuana, you can find these things: 1. The active metabolite in the blood – the stuff that makes you high. It lasts hours to a day or two depending on how heavy a user you are. It will be a shorter time in an occasional user, a longer time in a habitual user. 2. The inactive metabolite – what the active metabolite breaks down into. A sensitive test can find this in the blood up to weeks later. 3. none of these.

      Trayvon’s test showed ‘some’ active metabolite and ‘plenty’ passive metabolite. (Note my precise words.) ‘Some’ is an amount more than ‘trace levels’ and less than ‘oh god he was tripping balls.’

      Because people are different and we don’t know how heavy or continuous a user Trayvon was, we can’t say much with precision. We can say that he smoked marijuana actively within 24 hours, and that he was ‘coming off’ a high. We cannot say exactly how impaired he was or in what way because that differs from person to person.

      We CAN say he had a mind-altering metabolite in his body in active, measurable quantities. Trayvon’s thinking was affected by this level of the drug to some degree.

biglawmonies | July 10, 2013 at 12:12 am

Seriously, why is the Judge reading from an evidence treatise citing out of state rulings on authentication, tangential ones at that, when there is a DIRECTLY apposite state appellate case??? And why is the defense not bringing this case to the attention of the court???

    retiredprosecutor in reply to biglawmonies. | July 10, 2013 at 1:02 am

    It was a really LONG day in court. I am sure everyone was really tired. I have been there many times. I am sure that the defense will come equipped with the applicable Florida case law when court resumes. And, hopefully, the judge will recognize her erroneous interpretation of basic evidence law.

      KingofArizona in reply to retiredprosecutor. | July 10, 2013 at 2:10 am

      The apposite Fla cases should be faxed to the judge’s office by midnight, tonight and readied to be argue by West tomorrow. Authentication is not a huge issue – the evidence comes in and the prosecution can argue its weight. Given the nature of the attack suffered by GZ, pictures and comments of TM’s fighting past, breaking noses, and getting his opponents to bleed helps answer the question of who attacked whom…
      The court must allow them in.

      KingofArizona in reply to retiredprosecutor. | July 10, 2013 at 2:10 am

      The apposite Fla cases should be faxed to the judge’s office by midnight, tonight and readied to be argue by West tomorrow. Authentication is not a huge issue – the evidence comes in and the prosecution can argue its weight. Given the nature of the attack suffered by GZ, pictures and comments of TM’s fighting past, breaking noses, and getting his opponents to bleed helps answer the question of who attacked whom…
      The court must allow them in.

      I have zero sympathy for the judge over the “long day in court” issue. She is the one who has been allowing the prosecution to get away with not making timely disclosures of evidence in the case. She is also the one who has been denying the defense motions for continuances, so that they can have adequate time to prepare their case.

      She seems hell-bent on getting herself yet another smack-down from the court of appeals in this case. And she certainly deserves it, IMO.

      BrianMacker in reply to retiredprosecutor. | July 10, 2013 at 8:39 am

      So, when are they supposed to sleep? This Judge is unreasonable and keeps using the jury as an excuse for her unreasonableness. I’ve been on juries and when the lawyers are arguing that is a break, a rest period, for the jury. Sure the jury has to spend more time away from work and family, but this case is not running very long at all. Plus the prosecution in this case is behaving criminally. It is there fault these issues are coming up during the trial. Causing undue stress and lack of sleep on the defense team is destroying the accused’s right to a defense.

    andy from chapel hill in reply to biglawmonies. | July 10, 2013 at 6:47 am

    The dog did not bark.

    If someone grabbed TM’s phone and started texting to TM’s contacts, the contacts would catch on and there would be a record of these people pushing back and questioning the authenticity of TM’s messages.

    I wish West had gotten this in and then asked the expert if there were any kerfuffles over identity of the texting person.

The judge seems to have a blind spot concerning the comfort and convenience of the jury. The entire schedule of the trial is being rushed because of that blind spot.

    retiredprosecutor in reply to guycocoa. | July 10, 2013 at 1:13 am

    Judges do that all the time: Play up to the jurors by trying to speed things up in order to minimize any inconvenience.

    Remember, state trial judges have to run for re-election. Some, like this judge, are overly concerned with juror (i.e., voter) comfort and convenience, instead of focusing on their proper role: To ensure that both the defense and the prosecution get a fair trial, even if that means delaying the case and inconveniencing the jurors.

This judge was doing this kind of thing to the defense before potential jurors were even called, much less jurors seated.

–Andrew, @LawSelDefense

Instead of sanctioning the defense or instructing the jury to disregard Mr. Donnelly’s testimony, because his testimony was so powerful could the judge declare a mistrial?

I have to save say this blog with the comments is like a great steak off the grill with taters on the side. Sure you have the occasional ‘troll’ insect that comes by. You just have to swat them away or ignore them. The important thing is that the steak is top quality beef and there is plenty of it. And the cold beer ain’t too bad either.

Thanks for the invite Chef Andrew (And thanks to Mr. Jacobson for letting us share the space.)

The defense should play the same trick the prosecution did and open their own door. I have seen press conferences where Sybrina Fulton talked about what a good little angel Trayvon was. The defense should offer that into evidence, and then, to rebut the character evidence of Trayvon that they themselves offered, they can then introduce, not just Trayvon’s texts, but his school records and all kinds of character evidence.

This would be the same tactic that the prosecution used when they introduced the videotape of the Hannity interview, and then sought to rebut assertions made in that interview with George’s college coursework and testimony from his professors.

Something tells me that, should the trick work as well for the defense as it did for the prosecution, it would NOT then backfire, the way it did on the prosecution.

Carol Herman | July 10, 2013 at 12:39 am

Governor Rick Scott took $25-million of his own money, to run for the governor’s slot in Florida, in 2010. He came in from the private sector. Where, in 1997 he was accused of FRAUD, as he was the CEO of Columbia Hospitals. After this disgrace, he left to become a hedge fund king. And, I think he took industries in the plastics field public. Which is how he amassed a fortune.

Even if $25-million is just small potatoes to the ambitious Rick Scott, the worst outcome of this trial is a conviction. That needs to be appealed. Because there is so much attention now spent on George Zimmerman.

George Zimmerman, by the way, who is probably a fluent Spanish speaker. In our political world where we know the Hispanic vote is in play from Floriduh’s statewide contests. Up to, and including 2016, when we’re going to be looking at presidential candidates.

IF Rick Scott thought he had a chance at national politics? Any campaign he tries to do will be offset with videos, including “cartoonish” ones depicting how this fight went down. “Zimmerman on bottom, Trayvon on top.”

So? If this case resolves poorly, and George Zimmerman faces years ahead in judicial limbo … the costs run high when political ineptitude is “show cased.” I’d go tell Scott to save his money.

All in all whatever happens, Rick Scott has blown his wad. And, a bad taste lingering in the public’s mind … may want Scott to dig a hole he can hide in. In other words, I think his political career craps out.

You know, if this case were a ship. And, the ship was named the BOUNTY … I’d say MUTINY ON THE BOUNTY scored a hit. Sure we won WW2. But how many in the Navy knew Captain Queeg was a disaster who was put in charge?

Nelson? She can be parodied mercilessly. Plus, what makes you think the women on the jury even like her very much?

Today? Today was nelson’s disaster. I don’t think she has a reputation that she can ever recover. (Even though the jurors didn’t see what played out after they left for the day.) And, tomorrow she comes into court as if nothing happened.

    snopercod in reply to Carol Herman. | July 10, 2013 at 7:19 am

    Why did Gov. Scott get involved in this trial anyway if not to prove he wasn’t a racist? In my book, what he did was way worse than Obama pronouncing the police “acted stupidly” in the arrest of that black Maryland professor. Is it impossible for elected public servants to not butt in where they have no legal authority?

    P.S. Not a Floridian, but I don’t like the flip-flopping RINO Gov. Scott either.

biglawmonies | July 10, 2013 at 12:49 am

From U.S. v. Caldwell 776 F.2d 989, 1001-2 (11th Cir. 1985) (applying identical rule as Judge Nelson is applying):

“Authentication 1002*1002 or identification under rule 901 merely involves the process of presenting sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be. Once that prima facie showing has been made, the evidence should be admitted, although it remains for the trier of fact to appraise whether the proffered evidence is in fact what it purports to be.”

The defense has certainly met a prima facie burden; Judge Nelson is holding the defense to a standard that is way too high.

    Gandalf the Black in reply to biglawmonies. | July 10, 2013 at 12:57 am

    No, Judge Nelson is using the pretext of authentication to avoid more vexing (to her) problems. She is a disgrace to the bench.

    Mark30339 in reply to biglawmonies. | July 10, 2013 at 7:16 am

    This is an excellent comment, and the whole article is an essential post handled by Prof. Jacobson, since Branca decided to go AWOL. Thank goodness Jeff Weiner stayed around to tweet, he appears to be the only twitter person left who grasped the detail of what was going on and objectively reported it.

      caambers in reply to Mark30339. | July 10, 2013 at 7:44 am

      Jeff Weiner objective!!???? baaahahahahahaha Sorry..but unless he has finally seen the light I’m not buying it. He and Rene Stutzman of the Orlando Sentinel have been front and center in the local paper since day one perpetrating the ‘evil, racist George ZImmerman stalked/followed/hunted the innocent twelve-year-old black child who was just trying to get some snacks for his father’s girlfriends son’ meme. The damage has been done. I still hear people at work who haven’t been paying attention to this trial saying those same things still. It’s sickening.

        Mark30339 in reply to caambers. | July 10, 2013 at 9:18 am

        Hi caambers. While I too am puzzled by press efforts to turn this case into 50/50 razor thin battle of merits, I am talking about Tuesday’s evidence hearing that went from late afternoon until 10pm. Branca went AWOL. The issues and details were VERY important but clearly beyond Rene Stutzman’s comprehension and/or attention span – but at least Weiner’s tweets kept me up to date on the detailed give and take.

Bottom line is that if she allows this in she will be persona non grata on the left and the press will eviscerate her.

If she doesn’t, and Zimmerman is set free, then she can claim she did all she could.

We have Supreme Court justices making fools of themselves all the time to look good for the press and to remain welcome amongst the elite. Why should we expect more from this woman? She knows which side will reward or punish her. That is all she needs to know.

The only hope is she may feel this is a bridge too far.

Keep perspective. At this point, the main effect of more evidence is to bounce the rubble that is the states case.

Paladin1789 | July 10, 2013 at 2:02 am

A few unpopular thoughts.

First, the Court referred to an evidentiary treatise citing out-of-state law. That book is Erhardt on Florida Evidence, a standard reference tool especially for trial judges.

Further, the authentication issue is real. I expected the trial judge to require the defense to “lay a foundation,” often a discretionary matter that a court can use to tie up an unwary practitioner. You can tell the strength of the argument from the fact that the defense does not contradict the court — counsel does not say that the foundation is laid or that the message is properly authenticated. Instead, the lawyers argue that the standard should be relaxed due to prosecutorial misconduct. That should alert everyone to the seriousness of the evidentiary barrier.

BTW, I think it is wrong to use an analog to the “business records” exception to hearsay here. The messages are business records of the phone service provider but may be excited utterances or spontaneous statements of a declarant (Trayvon ). The standard applied may be erroneous.

Finally, the violation of the “rule” of sequestration is very real. I had a case where an expert witness observed a demonstration and lingered around and heard direct testimony. Very difficult to un-ring. The proponent of the testimony has a duty to make sure the tendered witnesses conform to the rule. Judge Nelson is well within her rights to strike testimony or witnesses who disregard that obligation.

    the legal argument on authentication can be resolved by calling Rachel Jeantel to the stand. She should be able to authenticate her text messages to Trayvon Martin.

    There are messages when he was on the bus going to Orlando. I think these should be adequate for authentication.

      Estragon in reply to Aussie. | July 10, 2013 at 6:07 am

      She could only authenticate her own texts, if I’m reading Nelson’s position correctly. Nelson seems convinced that unless someone witnessed Martin sending the text, it could have been someone else, a friend perhaps, who used his phone.

      By that standard, only texts with eyewitnesses would ever be allowed into evidence, which is ridiculous. Martin’s phone, Martin’s “secret” app with a second password, it is up to the prosecution to present evidence of a Second Texter on the Grassy Knoll, and up to the jury to weight the evidence.

      Bernice in reply to Aussie. | July 10, 2013 at 6:31 am

      You may recall, Dee Dee claimed that her own phone was occasionally used by a couple of her friends to either call or text. That assertion struck me as curious, given the low information value of most of her testimony.

      solar4u in reply to Aussie. | July 10, 2013 at 7:09 am

      Great idea! That could drag this on at least another week. I think they should recall a lot of people that have already been deposed!

    sequester in reply to Paladin1789. | July 10, 2013 at 7:37 am

    The Common Law rule of witness sequestration is codified in FL 90.916: “At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection ”

    So the Order had to be directed at and served upon the Witness. As Officers of the Court, it was incumbent on the prosecutors to point out a violation of the Court’s Order to the Court immediately. Failure to do so arguably constitutes waiver if they made the Motion to exclude that witness. The prosecutors had deposed this witness, so they were as aware as the defense of what he looked like.

    The Sequestration Law was not written for the age of highly public televised trials. Do you really believe Donnelly was the only witnesses to be exposed to testimony?? To strike key exculpatory testimony of a witness in a case where almost all the evidence is highly public constitutes a gross violation of judicial discretion unless a showing can be made that his testimony was influenced by other testimony that he observed. To otherwise strike his sworn testimony would arguably be a direct violation of Zimmermann’s Sixth Amendment right to call witnesses for his defense.

    Given the public nature of the case, and the duty of Court Officers, this constitutes a rather minor violation unless it was done knowingly by the defense.

    txantimedia in reply to Paladin1789. | July 10, 2013 at 8:19 am

    t

    Further, the authentication issue is real. I expected the trial judge to require the defense to “lay a foundation,” often a discretionary matter that a court can use to tie up an unwary practitioner. You can tell the strength of the argument from the fact that the defense does not contradict the court — counsel does not say that the foundation is laid or that the message is properly authenticated. Instead, the lawyers argue that the standard should be relaxed due to prosecutorial misconduct. That should alert everyone to the seriousness of the evidentiary barrier.

    It’s untrue to claim that the defense did not contradict the court. West argued strenuously that they had met their burden of authentication.

    The judge trivialized his argument by stating that anyone could have known the password. That was not the argument that West made. West’s argument was that they would have had to have knowledge of three elements of security, not one.

    1) The password to the phone
    2) The existence of two hidden applications and the ability to evoke them
    3) The passwords to the hidden applications

    The judge ignored that argument.

By Judge Farley’s reasoning for not allowing evidence, I could have 600 pictures of naked children on my computer (please don’t think I do!), but it wouldn’t be allowed into evidence because it could be anyone using my computer. WhiskeyTangoFoxtrot!!

MouseTheLuckyDog | July 10, 2013 at 2:05 am

I have a couple of questions about Nelson.

First is I heard that she and Corey have some sort of past relationship. No not that sort of relationship. ( Get your mind out of the gutter! and Eew Eeeuuueeewwww ). That Corey got her her first job or something like that. Does anyone know any thing about that.

ALso I heard some people claim that she has had two rulings reversed in this trial. I know she was reversed on the Crump deposition. But I haven’t heard of anything else. Does any know?

Gremlin1974 | July 10, 2013 at 2:07 am

I have posted a couple of times that I would not be in favor of a mistrial due to the effects on Zimmerman, his family, and the Martin family.

However, that was before I saw this video and saw how the Judge acted. I also noted that by her bringing up the issue of the witness being in the courtroom, I would say she made her decision on this issue when West made her mad. Bet she throws out his testimony in retaliation.

After seeing the video the defense needs to either make a motion to the appeals court to have her removed from the case and/or request a mistrial fist thing in the morning.

    I really do not care about either Tracy Martin or $$$ybrina Fulton. Both of them are doing a lousy job when it comes to real grieving. Both of them have lied and lied and lied. They change their stories every 5 minutes.

      Uncle Samuel in reply to Aussie. | July 10, 2013 at 2:51 am

      Plus they are participating in the great Crum-concocted fictional propaganda story and shake-down.

    Harperman in reply to Gremlin1974. | July 10, 2013 at 2:35 am

    In reference to Judge Nelson’s tantrum and obvious anger at the defense tonight I am going to risk the ire of the ladies commenting here.
    This of course does not apply to all women but in my experience is a good general rule. In men anger burns hot for a short time and then all is over. In women anger tends to smoulder, often for months. Don’t expect Nelson to be forgiving or even rational about tonight’s confrontation in the morning.

      As a female commenter I am not offended because you make a good point.

      I have been guilty of this exact thing and had been smouldering about the way I was treated by a certain doctor. In the end, and only after 3 visits, I have told my GP that I consider the particular doctor to be “a part of the male appendage” but I was not that polite in the way that I made my statement. I had been boiling since the first appointment. I detested his arrogance…The second visit was worse than the first and I did not appreciate his inference that I had not taken medication at all… I was red hot angry…. until I boiled over.

      So yes, it is true. It happens. Females are good at resentment and all those things.

        caambers in reply to Aussie. | July 10, 2013 at 7:53 am

        I agree and generalizations are just that but yes, as a female, we do tend to ‘bank the coals’. I do both however. I do the ‘summer storm anger’. Here and gone. If someone makes me angry enough, I just ignore them forever…and ever…and ever… >:)

      stella dallas in reply to Harperman. | July 10, 2013 at 9:32 am

      I thought it was blacks who did that, or was it Italians? Ah – Jews, they’re the ones. Good thing there are none of them on the jury. You know how emotional they get and they carry grudges forever. That’s how your comments sound to some of us.

      Judyt2013 in reply to Harperman. | July 10, 2013 at 9:45 am

      Not the least offended by oh my gosh differences in the genders. Although I do reserve the right to pout about you pointing out that women and men are not the same for as long as I want.

      seeing_eye in reply to Harperman. | July 10, 2013 at 8:18 pm

      I’m one of the women commentators here, and I think I can explain this. Men’s anger is short because of their forgetfulness. Women have a very long and accurate memory, therefore they remember insults for a very long time. But I certainly do not expect Nelson to be forgiving or even rational at all, at any time, regardless the state of her memory.

Carol Herman | July 10, 2013 at 2:15 am

Nelson accomplished what she wanted today. She knows the case the state is presenting is lost. And, her major task, she set for herself, was to treat O’Mara and West to disgraceful long hours trying to get testimony into the record. Where, the photo of Trayvon smoking pot is front and center up at Drudge. About the only people who DON’T KNOW are the sequestered jurors.

nelson just took “being mean” to a whole new level.

Of course, what the big production did expose is the extent of the deletions on the dead saint’s cell phone. Who had this evidence? The cops? The mayor? Is it possible the person doing the deleting had no idea he (or she) was leaving a trail?

This is blockbuster information. We know Drudge has access to some of the photos. (I had not yet seen the “naked chest photo” Trayvon took of himself. And, I only heard there’s a catch of jewelry he photographed on his bed.

Will we end up with a game called “HIDE THE EVIDENCE?” The way the game of Clue became such a favorite board game? I even think it made its way into computer-land? Otherwise, why would a sentence like: “Mr. Mustard. In the conservatory. With a candle stick.” Even make any sense, today?

As to nelson, I don’t see her becoming a hit on the talk circuit. She’d need a degree of competence she doesn’t possess to find herself becoming a benevolent figure.

Meanwhile, I think Dr. Vincent DiMaoi, ahead, will be an expert a TV show would pay good money to bring on board. Is he sequestered? Can nelson sit on him until the trial ends?

    Vince in reply to Carol Herman. | July 10, 2013 at 5:58 am

    Some of the photos you’re talking about were released a while ago on the defense webpage. http://www.gzlegalcase.com/index.php?start=15

    moonstone716 in reply to Carol Herman. | July 10, 2013 at 8:01 am

    I don’t like her, at all, but I feel a little sorry for her. She’s obviously a government schlub who couldn’t refuse this terrible case.

    I think the state would have benefited at least a little by having a sharp judge that commanded a little respect up there; but if there are any of those in that circuit, they probably ran as fast as they could from the entire debacle.

      memomachine in reply to moonstone716. | July 10, 2013 at 8:39 am

      Judges are elected in Florida. Difficult to be a government schlub when you actively seek the job and have to run, and win, and election to do so.

    Judyt2013 in reply to Carol Herman. | July 10, 2013 at 9:50 am

    Ummm… going forward when $$$ybrina and Skiptrace file their Crump inspired wrongful death civil action I certainly hope that ALL of “angel” Trayvon’s actions are brought into court.

    TM contributed to his own death and the fact that his race hussled parents will seek to profit is disgusting.

She’s going to rule that the cellphone messages are inadmissible and that the Donnelly testimony can stay
This she can claim to be fair , but she really isn’t

Of course Donnellys testimony was unforgettable, but these text messages would be the big shining nail in the coffin of the prosecution

Paladin1789 | July 10, 2013 at 2:38 am

I am cutting the judge some slack. She is having long days too.

One interesting feature of the trial is how the prosecution brings up defense violations of discovery and trial procedural requirements. Some of this is tactical on points in the trial. But, more broadly, the prosecution is shielding itself from claims of misconduct. They are coming up with arguable misconduct by the defense. Later they will be able to argue that “both sides did it.”

Trial judges HATE discovery disputes. A subtext of the discovery and sequestration argument is to immunize the prosecution by saying that both sides had some faults. The most liky rest of the discovery wars after trial is some sort of “separate peace” saying live-and-let-live.

Do other practitioners agree with this analysis?

Juba Doobai! | July 10, 2013 at 2:39 am

What I have never understood is why ALL evidence, both pro and con, is not presented in court, I just don’t understand this bit about evidence being prejudicial. It seems to me that you make better decisions when you can evaluate all the facts and evidence of a given case. Why should the lawyers have to fight over admissibility? Is that the judiciary amassing power to itself?

    Harperman in reply to Juba Doobai!. | July 10, 2013 at 2:47 am

    I am sure that many of the lawyers here will disagree or even be offended but I believe we no longer have a justice system. We have a game they play and justice has little to do with it. The system has, like much in our government, become corrupt. I made a comment like this the other day and Andrew pointed out that the way to fight a corrupt lawyer is with an honest lawyer, and they do exist. It doesn’t change the fact that the system has become a game, a disgusting game where peoples lives are viewed as points like a game of cribbage.

      Harperman in reply to Harperman. | July 10, 2013 at 2:55 am

      To expand on my last. West and O’Mara are doing what they do basically without pay because they are moral men doing what they believe is right. The prosecutors are men completely lacking in morals doing what they do for “points”. They came into this expecting an easy victory over some poor SOB of a court appointed lawyer without a budget. They cared nothing for the fact that the had no case and knew it. Unfortunately for them and very fortunately for George Zimmerman they found themselves facing truly moral men like West and O’Mara and a host of people willing to contribute money. But this is rare. The average defendant in a case like this is just some poor SOB with a court appointed lawyer.

        seeing_eye in reply to Harperman. | July 10, 2013 at 8:42 pm

        I think the reason the special prosecutor overcharged with Murder 2 (with prodding from her handlers) is so they can plea down and get some kind of conviction. They just underestimated O’Mara and George not willing to plea to some crime by an innocent man.

      The prostitution never rests. Anymore.

Hi all,

As a non-lawyer my thought.

The judge, whoever it would have been, is in a very very difficult position.

As we all know, this was easily self-defense with absolutely no intention of Mr. Zimmerman to kill someone that night. At least that is the only way one can objectively read the evidence so far.

However this case is a huge clusterfark for everyone who is not intimately involved. Race, unfortunately is the major theme of this prosecution. The race hustlers such as JJ and AS just poured enough fire on things to basically force a full trial.

Is there anyone out there who really thought this was not going to trial once the race hustlers got involved? Take race completely out of it and the initial decision not to charge Mr. Zimmerman was the correct one.

Did anyone really think any neutral judge would give a summary judgement before the defense started its case?

I can only hope that if he is convicted this judge will finally do the legal right thing and stay the verdict if that is possibly in Florida.

    I gave you the thumbs down because you are trying to defend a judge that comes off as being too biased for the persecution.

    A majority of her rulings have been wrong for differing reasons, but most of all because she does not apply logic.

When West pretty much accused the prosecution + judge of intentionally fumbling the discovery process, does anyone foresee any potential fallout from this?

    Harperman in reply to nifepartie. | July 10, 2013 at 3:12 am

    I can foresee lots of fall out. The question is can GZ survive the time in jail waiting for the appeal?

      MouseTheLuckyDog in reply to Harperman. | July 10, 2013 at 5:35 am

      That’s assuming Zimmerman is convicted, I’m pretty sure that at worst he will get a hung jury. Having said that, I’m hoping a stealth juror somehow made her way onto the jury so that we have a mistrial. The appeals during the interim and the appellate court gets to sdee how badly she behaved.

      IF Z gets outright convicted I fear this judges bad behaviour will never be exposed.

      txantimedia in reply to Harperman. | July 10, 2013 at 8:27 am

      If GZ goes to jail, he will never be in general population. He will be in isolation. To do otherwise would be obviously criminal on the part of the jailers and open the state to a massive lawsuit.

“Another person may know that password.”

Pardon me.

I have no experience in this kind of criminal law as it pertains to murder.

But as an engineer, I do know that this absolutely turns a huge number of current, past and future cases on their heads, which include (but are in no way limited to) patent law, laws in financing, accounting, bankruptcy, product liability, insurance, regulation and safety pertaining to almost every industry (military, medicine, construction, you name it).

Not to be dramatic but…does anyone understand how absolutely ludicrous and far-reachiing it is for “Another person may know that password” to become a legitimate basis in legalese?

    In my working life within an accounts evironment, I would be given a password that I was not to expose to others. Of course it was necessary to have it written down, especially if the computer had to be accessed after I left the job… but I think you see my point.

    What if someone else had my password, went onto my computer and committed an act of fraud under my username? I would be liable for that fraud.

    I agree the argument was ludicrous.

    memomachine in reply to Terrekain. | July 10, 2013 at 8:35 am

    Yeah. I’ve got 30+ years of professional software development and the idea that authentication, for legal purposes, has to be based on direct witness observation is pretty idiotic.

    If there is evidence to the contrary that shows a password or identity to have been misappropriated or stolen then the issue of authentication needs to be addressed. Such as “my phone got stolen and I reported it as such 2 weeks ago..” or “These emails aren’t mine because I can show the account was hacked ….” etc.

    But to baseline authentication as requiring a witness makes the whole thing unworkable. And no I’m not buying into the judge’s statement about Martin not self-identifying in his text messages either. Frankly I have no confidence that had Martin self-identified, and really why would he, that she wouldn’t have come up with the spurious requirement that someone else be able to identify the user as Martin.

    Seriously. This isn’t The Man from La Mancha where the title character identifies himself in song. This is a series of text messages.

BannedbytheGuardian | July 10, 2013 at 4:43 am

I hope this judge never is on a child pornography case. She would throw every message every pic unless the senders clearly identified themselves.

Texting linguistics would be very easy to categorise.

Btw – the court is very drab & suburban. I’ve seen 18th century courts far more lively & impressive.

MouseTheLuckyDog | July 10, 2013 at 5:22 am

I just had a thought.
Suppose at this point many of the mesages cannot be properly investigated because the ISP has deleted all the logs by now.

Could the prosecution be held responsible because of discovery misconduct.

Could the appellate court declare a mistrial for this and since it was prosecutorial misconduct declare it a mistrial with prejudice? It would have to be the appellate court cause I don’t think this judge will ever grant such a motion.

    Look what happened to Angela Corey, indicted. As for a mistrial, I would want GZ to win because he is innocent not because of a technicality. He needs to get back to some kind of normal life???

      Oh, not again. Matt is going to have kittens if he knows this one’s still floating around out there 🙂

      Angela Corey was only “indicted” by a make-believe “citizens’ grand jury”. It’s no more real than the citizen moonbats who “indicted” George Bush for war crimes.

      This “indictment” — it’s not a thing.

        Matt in FL in reply to Amy in FL. | July 10, 2013 at 9:08 am

        I laughed. These things come in waves, and this one has already broken on the shore. This is just the seafoam, washing back out to sea.

    Mister Natural in reply to MouseTheLuckyDog. | July 10, 2013 at 7:32 am

    simply call on the NSA

The persecution is a prostitution of justice.

    Bernice in reply to MSimon. | July 10, 2013 at 6:39 am

    Pardon me but your PTSD is showing, Missy.

      You never fully get over it. But I mostly got over it 40 years ago.

      Let me add that I’m rather an odd duck here. I feel sorry for Tray (very bad parenting) but George is innocent.

        moonstone716 in reply to MSimon. | July 10, 2013 at 8:17 am

        You’re not an odd duck. No one here is glad TM is dead; we’re just saying that he brought it on himself. It’s a shame and a tragedy all around, but GZ shouldn’t lose his freedom or his life because he did what he had to do.

[…] In my post last night I noted a near shouting match between defense attorney Don West and Judge Debra Nelson over whether text messages on Trayvon Martin’s phone regarding fighting were “authenticated.” […]

Let’s say the judge denies all defense motions, as she will.

Can the defense appeal those rulings in time to get her slapped back into line BEFORE the jury gets the case ?

If not, then what ? Can the appeals court order the case re-opened after deliberations have begun ? Or must it wait for verdict and (possible) mistrial ?

memomachine | July 10, 2013 at 8:27 am

Wait.

The judge **walked out on the defense counsel while they were still talking**!!?

1. If she hasn’t committed reversible error then the American judicial system is truly screwed.

2. The Florida judicial review board needs to get a handle on this because the rest of the country is looking at stuff like this and not seeing anything remotely fair, equitable or possibly even professional or legal in this conduct.

    Matt in FL in reply to memomachine. | July 10, 2013 at 8:30 am

    “The judge **walked out on the defense counsel while they were still talking**!!?”

    Well, yeah. She said they were in recess. That indicates she was done talking. The fact that she interrupted Don West to do it doesn’t mean anything, right?

    I said, “Good day!”

    wyntre in reply to memomachine. | July 10, 2013 at 8:49 am

    I was wondering about that, too. I was watching the livestream when Nelson threw a hissy fit and walked off the podium while West was still arguing.

[…] contributors below the first video feed. We have brief summaries of the previous day’s events (including last night’s fireworks!) along links to detailed more posts below the second video feed at the bottom of this […]

[…] Judge in the Zimmerman trial just ruled that the jury will not get to see numerous text messages on Trayvon Martin’s phone regarding his prowess at fighting, including texts as to how to […]

I R A Darth Aggie | July 10, 2013 at 12:05 pm

“Another person may know that password.”

Hmmm…let’s see how that would fly.

Let’s say I have some illicit material on my computer, and I asserted that it wasn’t mine and that “another person may know that password” and then place the aforementioned illicit material on my computer without my knowledge or consent.

Survey says the judge will laugh at me. Then throw the book at me.

    Matt in FL in reply to I R A Darth Aggie. | July 10, 2013 at 12:08 pm

    Related: If I’m ever in a fatal accident, somebody erase my browser history before you call my folks, kay?

      If there’s not already a product out there which you can set up to wipe all of your internet and social media history if you haven’t logged in for some pre-set time period (24 hours, 48 hours, a week), there probably should be 🙂

      MouseTheLuckyDog in reply to Matt in FL. | July 11, 2013 at 5:17 pm

      In the British version of the show Coupling they talk about a “porn buddy”. That’s someone who when you die goes to your place and cleans out your stash of porn before your family can see it.

[…] as best we can, we must piece together her rambling remarks during Tuesday night’s oral argument (courtesy of Legal Insurrection, we find the video), since all she did Wednesday was reaffirm what little she had already […]

did the autopsy show how much “purple drank” was in his system

is it time to stop showing this collegiate ready athlete thug, as a 12 yr old boy in a hollister shirt?

[…] Zimmerman as a “wannabe cop” and “vigilante.” One only has to review Martin’s own photos, text messages, and troubled past (to include serial fighting, handling a firearm, pot use, and […]

Font Resize
Contrast Mode
Send this to a friend