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Why Zimmerman’s Motion for Acquittal Should Have Been Granted

Why Zimmerman’s Motion for Acquittal Should Have Been Granted

Immediately following the close of the State’s case on Friday, Mark O’Mara, the lawyer leading George Zimmerman’s defense team, stood before Judge Nelson and made his oral motion for a judgment of acquittal for his client (a parallel written motion was also submitted to the Court).

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c George Zimmerman defense counsel Mark O’Mara

The motion was well-reasoned, and strongly founded on Florida’s case law. It was also doomed to fail before a Judge who has consistently denied reasonable defense motions out of hand, while rubber-stamping motions by the State that bear not the slightest relevancy to the facts of this case.

Details matter in the law, and in any case the quick-and-short reporting of Nelson’s denial of the motion for a judgment of acquittal has already been widely reported (by us, among others). Here, we take a different approach, delving into the details of O’Mara’s motion. Part of this detail includes the full-length decisions of almost every court case cited by O’Mara in support of his motion.

Most of these court cases are gratifyingly brief and written in a style easily accessible to non-lawyers. Accordingly, throughout this piece the reader may hyperlink to the full-text of the relevant court decision back at the Law of Self Defense blog (where they join many hundreds of other self-defense related court decisions from all 50 states).

“The Good”

In today’s post I focus on O’Mara’s oral motion to Judge Nelson (“The Good”).

My next post on this subject will cover Mr. Mantei’s duplicitous response to the motion (“The Bad”), as well as O’Mara’s response in turn.

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State prosecutor Mantei

That second installment will also, of course, include Judge Nelson’s prompt and dismissive denial of the motion, delivered tersely in a two-sentence reply from the bench, followed immediately by her demand that the defense begin their case to the jury at 5PM on a Friday afternoon.

The Standards for a Judgment of Acquittal

O’Mara began by noting the legal standards that exist in Florida for determining whether a judgment of acquittal should be approved or denied.

The first issue is to distinguish between direct and indirect (or circumstantial) evidence, all of which must be considered from the perspective of being most favorable to the State. If there is adequate direct evidence raise a reasonable question of fact for the jury to decide, then the matter belongs in the jury’s realm, and a judgment of acquittal is inappropriate. If the direct evidence is entirely absent, or so slight or incredible that no jury could use it come to a verdict of guilty, then a judgment of acquittal should be approved.

If all the State can bring to the table is circumstantial evidence, however, the threshold for approving a motion for a judgment for acquittal is rather different. Where only circumstantial evidence is at play, that evidence, when viewed in the light most favorable to the State, must be sufficient to exclude any reasonable hypothesis except guilt. That is, unless the circumstantial evidence is so compelling that there exists, at the close of the State’s case, no reasonable doubt, a judgment of acquittal is appropriate.

To put it yet another way, if there exists a reasonable hypothesis of non-guilt (innocence)—that is, a reasonable doubt—before the defense has even presented their case, the State has already failed in its charge to prove guilt beyond a reasonable doubt, and a judgment of acquittal is appropriate.

Walker, Barwick:  Indirect Evidence Must Exclude Every Hypothesis of Innocence

The controlling case law on this issue in Florida is Walker v. State, 957 So.2d 560 (FL Supreme Court 2007), which in turn quotes favorably from Barwick v. State, 660 So.2d 685 (FL Supreme Court 1995). In Barwick, the Florida Supreme Court states:

[A] judgment of acquittal is appropriate if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.

O’Mara then loops back to take a look at the existence, such as it is, of the State’s direct evidence that could support the charge of second degree murder (782.04), and particularly the element of a depraved mind requiring spite, ill-will, or hatred.

He notes that the Court could, if it chooses, consider the expletives caught in the recordings of Zimmerman’s call to the police—“these fucking assholes always get away” and “fucking punks”—as direct evidence of spite, ill-will and hatred, as the State is arguing. He points out, however, that the manner in which the State is repeating the terms in Court is substantively different from how Zimmerman actually stated them.

State prosecutor Bernie de la Rionda fairly shouted the words at former Investigator Serino (since demoted to patrolman: “Investigator Chris Serino Demoted to Patrolman by Superiors”)–and prosecutor Guy gave them a similarly sinister intonation during the State’s opening statement. Anyone listening to the recordings, however, can clearly hear a tone of resignation and even frustration in Zimmerman’s voice—the resignation and frustration of a resident struggling to help protect his neighbors from a wave of burglaries and even home invasions–but nothing akin to spite, ill-will, and hatred.

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State prosecutor Bernie de la Rionda

Given that context, the State’s misinterpretation of the tone of those comments cannot be said to truly be direct evidence of spite, ill-will, or hatred, but merely speculative circumstantial evidence for that purpose. Even more clearly circumstantial, he notes, is the State’s attempts to use the same two, brief phrases to create the narrative that Zimmerman was a dangerously overzealous Neighborhood Watch participant and a wannabe cop—neither of which conclusions can be found in either of those utterances.

Given the clearly circumstantial nature of that purported evidence of a depraved mind, O’Mara argues, a judgment of acquittal is appropriate unless that evidence can disprove every reasonable hypothesis of innocence, under the standard set by Barwick and affirmed by Walker.

But this the State cannot do, O’Mara continues, because the evidence—even as presented solely by the State—establishes not merely a reasonable hypothesis of innocence, but one that is powerfully compelling: that George Zimmerman acted as he did in lawful, justifiable, and necessary defense of his life.

The State Has Failed to Controvert Zimmerman’s Claim of Self-Defense

O’Mara notes that “what is before the Court is an enormous amount of information that my client acted in necessary self-defense.” He acknowledges the most potent State argument against that claim of self-defense is the identification by Sabryna Fulton, Trayvon’s mother, and Jaharvis Fulton, Trayvon’s half-brother, as the deceased as the source of the screaming cries for help in the background of Jenna Lauer’s 911 call to police.

He observes that Jaharvis Fulton explicitly acknowledges that he is, in fact, uncertain whether the screaming is that of Trayvon Martin. He also notes the powerful internal pressure Ms. Fulton must feel to believe with all her heart that the screams are those of Trayvon Martin—because if they are not, the only reasonable conclusion is that her son brought his death upon himself. Given these circumstances, her purported identification cannot reasonably be given the weight the State desires–indeed, that the State requires to avoid a judgment of acquittal.

This is particularly so when all the other evidence is considered, even when considered in the light most favorable to the State. Zimmerman’s immediate statements to the first responder to the scene, his neighbor Jonathan Manalo, and the second responder to the scene, Officer Tim Smith, both claimed the screams as his own—a claim he has held to consistently ever since.

The Uncontroverted Evidence of Martin’s Unprovoked Deadly Attack Upon Zimmerman

There is also, O’Mara notes, no other reasonable hypothesis that can be derived from the available evidence other than that Zimmerman was under a physical attack, and that this attack was being delivered by Trayon Martin. No one can look at the photos taken of the scene of Zimmerman’s face, of the injuries to the back of his head, and believe they were caused by anything other than a physical attack—and the only credible source for such an attack, especially given the injuries on the “punching” surfaces of his hands, is Trayvon Martin.

Although some of the exact circumstances of the attack remain uncertain, the State has presented no evidence whatever that Zimmerman ever proceeded down the “dog path” in the direction that Martin would have taken had he been seeking the safety of home. Nor did the State introduce any evidence whatever that Zimmerman continued to follow Martin after being told by the dispatcher that doing so wasn’t necessary. The State introduced no evidence that Zimmerman initiated contact with Martin—indeed, the State’s “star witness” Rachel Jeantel, testified that it was Martin who initiated contact with Zimmerman.

Zimmerman claims that it was at that T intersection that Martin emerged from the bushes, confronted him verbally, then aggressively attacked him with a punch to the nose that Zimmerman says he never even saw coming. The blow felt as if it had been delivered by a brick, Zimmerman told officers that evening, sending him to the ground with a broken nose. Zimmerman then claims—and the testimony of the only eye-witness, resident John Good, affirms—that Martin next mounted Zimmerman in an MMA-style dominating position and began raining blows upon his face and head, and smashing his head into the concrete sidewalk in a “ground-and-pound” attack.

Again, O’Mara notes, the State has introduced not one scintilla of evidence to contradict any of those claims.

At that point, struck to the ground by a surprise blow out of the dark, bleeding and chocking on his own blood, being beaten from an opponent sitting astride him, Zimmerman would have had a reasonable fear of death or grave bodily harm and could lawfully have used deadly force to defend himself.

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George Zimmerman’s Kel-Tec PF-9

Zimmerman Used Deadly Force in Self-Defense Only In Extremis

But, O’Mara emphasized, he didn’t. Instead he screamed for help for 40 seconds, begging for someone to come to his assistance. Several people peered out their windows and heard noises but saw little. John Good, the only eye-witness, stepped outside onto his porch and observed the darker skinned man in the dark clothing on top of the lighter skinned man in the lighter clothing and demanded that he stop the apparent beating. The man on top in the darker clothes ignored him. John Good returned into his home to dial 911, as several other residents were also doing.

State witness John Good

State witness John Good

Even then, when any hope of immediate aid was lost, when the blows continued to rain down, when Martin pressed his hands over Zimmerman’s mouth and nose , cutting off his breath, when he feared the imminent loss of consciousness, even then Zimmerman did not yet resort to the use of deadly force in defense of his life.

That decision came only after Zimmerman’s licensed concealed gun, still secure in its holster, emerged from concealment because of the displacement of jacket during the attack, was observed by Trayvon Martin. “You’re going to die, mother fucker,” Martin told him, reaching for the gun.

Only then, with death seconds away, and no other alternative left to him, did Zimmerman draw his weapon and fire a single round into his attackers body above him.

Again, O’Mara notes, the State has introduced not one scintilla of evidence to contradict any of those claims.

As a result, Zimmerman’s claims of lawful self-defense remain uncontested by any evidence, direct or circumstantial by the state. Self-defense is an absolute defense against the charge both second degree murder or manslaughter.

Controlling Florida Case Law in Support of Judgment of Acquittal in Cases of Self-Defense

The State, then, had failed in its charge to exclude all reasonable hypothesis inconsistent with innocence—indeed, dramatically so—and under Walker, Barwick and other controlling Florida case law a judgment of acquittal was the only appropriate decision to be made. The additional controlling cases include State v. Law, 559 So.2d 187 (FL Supreme Court 1989), Stieh v. State, 67 So.3d 275 (FL Ct. App. 2011), Hernandez Ramoz v. State, 496 So.2d 837.

One of the particularly interesting of these cases involving a judgment of acquittal in the context of self-defense is Jenkins v. Florida, 942, So.2d 910 (FL Ct. App. 2006). In that case the defendant went outside of his home to confront a noise maker. The other fellow punched him, knocking Jenkins back, then came at him again. Jenkins grabbed his knife, which penetrated the attacker’s heart, killing him. Jenkins sought a judgment of acquittal, which was denied, and he was convicted. On appeal, however, the appellate court ruled that the denial of the JOA was inappropriate, and the verdict was vacated. The similarities to the present case are striking.

That essentially concluded the first half of O’Mara’s argument to the judge—in essence that a judgment of acquittal should be granted on ALL the charges against Zimmerman on the basis of lawful self-defense. He then continued, on the assumption that Judge Nelson would reject that argument, to argue that at the very least a judgment of acquittal should be granted on the charge of murder in the second degree.

O’Mara: If Acquittal On All Charges Denied, Must At Least Acquit on Murder 2

O’Mara’s basis for this second argument was that the State had patently failed to provide any direct evidence of spite, ill-will, or hatred required for second degree murder. Further, what meager circumstantial evidence the State had presented was not sufficient to exclude all reasonable hypthosis of innocence. As a result, the State’s charge of second degree murder could not pass the requirements of Walker, Barwick, et al., and must fall to a judgment of acquittal.

O’Mara noted that the common thread throughout all of these cases was that spite, ill-will, or hatred required for a depraved mind killing is almost never found between combatants who have only just met, but rather is limited to circumstances in which there has been an ongoing relationship in which these potentially dangerous sentiments can accumulate. Conversely, the courts have consistently held that it is almost impossible for that spite, ill-will, and hatred to grow so quickly in the middle of an affray or fight or altercation that a resultant killing can be said to have resulted from a “depraved mind.”

He then went on to discuss a series of Florida appellate cases in which a killing had occurred in circumstances comparable to those of the present case, but which found on appeal that the momentary confrontation between the combatants—no matter how egregious or negligent—did not amount to the depraved mind requirements of spite, ill-will, or hatred. These cases included Light v. State, 841 So.2d 623 (FL Ct. App. 2003), a 2nd DCA case involving a confrontation in a mosh-pit case. The eventual victim had somehow struck Light in the groin, and in response Light raised the victim over his head and smashed him into the cement floor. The victim died shortly thereafter. The appellate court found that this did not constitute an act of a depraved mind.

Similar cases involving considerable “bad act” conduct but no finding of a depraved mind included Williams v. State, 764 So.2d 177 (FL Ct. App. 1996) , State v. Ellison, 561 So.2d 576 (FL Supreme Court 1990) involving a murder that resulted from a high-speed chase in a crowded urban area, and Dorsey v. State, 74 So.3d 524 (FL Ct. App. 2011)[] , in which the defendant got in an argument, went home and armed himself, returned to the argument and ende dup shooting and killing the other two men—no spite, ill-will, or hatred, and no depraved mind—and Bellamy v. State977 So.2d 682 (FL Ct. App. 2008), an impromptu bar-fight type killing between strangers, and Wiley v. State, 60 So.3d 588 (FL Ct. App. 2011), in which the defendant used his pistol as a club, upon which it discharged and killed the victim—again, no spite, ill-will, or hatred, and no depraved mind killing.

O’Mara concluded his motion with the following remarks:

All of those standards that the State has to present, all those factual scenarios have to convince this Court, that a judgment of acquittal should not be granted because they have presented evidence which negates every hypothesis of self-defense, every hypothesis of innocence, they are synonymous for these purposes in that my client acted in self-defense.

Failing to do that, Walker is the law of this land, and suggests that a judgment of acquittal should be granted. If it is not granted outright because they have simply failed to disprove self-defense, of course you know that to be the standard for the jury to consider anyway, then we shouldn’t even need to present a defense.

And, if for some reason that you think that all of that is just, has to be ruled in favor of the State, not giving my interpretation to Walker and its progeny, any consideration whatsoever, then certainly the State has failed in convincing that second degree murder charge, evidencing a depraved mind, has any basis moving forward to this jury, because they simply have not presented any evidence to suggest that there is not a reasonable hypothesis that my client did not act with ill-will or hatred, and they need to present, though they get the benefit of all the evidence being presented in their factor, they don’t get the benefit of you ignoring the evidence that can’t be interpreted any other way.

You cannot look at that picture of my client’s nose and say that he wasn’t beaten in the face. You can’t look at the back of his head and say he wasn’t beaten in the back of the head. You cannot look at the autopsy of Mr. Martin and not realize that my client never intended to nor landed one blow on Mr. Martin, all my client did was scream out for help. Mr. Good, though he was questioned a lot about this area, did finally opine, though he didn’t see gasps escaping from my client’s mouth as he was the one scaring towards him, said it was his thought, his common sense, that it was in fact my client screaming out for help.

zimmerman_scene_photo

The reality is had it been Mr. Martin screaming for help—well, he had his chance. He had Mr. Good 17 feet away, asking him to stop, telling Mr. Martin he was going to call 911, and Mr. Martin continued to ignore him and continued to batter my client in whatever form or fashion or the number of times he did, that ended up with the injuries my client had. They can’t ignore that evidence to a jury, and they really should not to be able to ignore it to you on a judgment of acquittal argument.

Judge Nelson then asked for the State’s response, which was delivered by Mr. Mantei—but that’s fodder for my next post on the subject, “The Bad,” hopefully up sometime tomorrow.

Don’t forget, of course, that we start all over again covering the trial live at 9:00AM tomorrow morning—keep your eyes open for our live coverage page, including two video streams and the rolling Tweeter feed of selected contributors—including myself, tweeting as @LawSelfDefense.

–Andrew, @LawSelfDefense

NOTE:  The title (and corresponding URL) were changed shortly after first publication of this post to better reflect the content.


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. Take advantage of the 20% pre-order discount (valid only until the jury returns a verdict), only $40.  NRA/IDPA members can also use coupon code LOSD2-NRA at check out for another 10% discount and free shipping.

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!

You can follow Andrew on Twitter on @LawSelfDefense (or @LawSelfDefense2 if I’m in Twitmo, follow both!)on Facebook, and at his blog, The Law of Self Defense.

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Comments

Thanks and hey, take the rest of the week-end off.

Faces on some folks in those still shots, means you had better be packing paisano, and I’m not talking suitcases..

The more I see that strange lady in a black robe sitting near the witnesses in that courtroom, the more I’m convinced we are paying our trial judges all wrong. Whenever any of their decisions get overturned they should be required to refund the state what they earned during that time, IMO. She, I fear, would be bankrupt.

    kentuckyliz in reply to 49erDweet. | July 7, 2013 at 11:47 pm

    I can’t remember where I read that the DCA has bitchslapped Judge Nelson before for not issuing JOA in cases where she should have. Methinks this might end up being another one.

      I have not heard that, and frankly I’m skeptical.

      EVERY criminal defendant thinks they are a no-brainer top-shelf pick for a JOA. At least THEY claim they are. (If you ever want to meet really good liars, work with a bunch of criminal defendants for a while. I’m NYC born-and-bred, and they still had me fooled for a good 3 minutes.)

      Genuine opportunities for JOAs are quite rare. This is a VERY unusual case, in many ways. I doubt very much that Judge Nelson has had a great many opportunities to make JOA calls in the first place, much less screwed them up enough to get slapped down.

      Not that that has anything to do with this case, of course. Here she DID screw the pooch, and she WILL get slapped down.

      I can all but guarantee that, like the State prosecutors, Nelson was sure some chink in Zimmerman’s armor would emerge that hey could exploit and win the day. They never imagined that he’d be so different from them.

      A genuinely decent human being.

      –Andrew, @LawSelfDefense

    legacyrepublican in reply to gad-fly. | July 7, 2013 at 8:24 pm

    Obviously the Wannne Wannne in the tune has to be BDLR!

    That makes the victorious sounds MOM, btw.

    I judge them by their screams. 😉

    kentuckyliz in reply to gad-fly. | July 7, 2013 at 11:46 pm

    That should be a loop track that autoplays with this page.

    Scratch that…several of us were irritated by the fireworks show and the John Philips Sousa.

BannedbytheGuardian | July 7, 2013 at 8:11 pm

The soundtrack by Flo Rida.

txantimedia | July 7, 2013 at 8:19 pm

In the spirit of prepping for your book.

“This is particular so when ”
should be
“This is particularly so when “

    Thx, fxd.

    –Andrew, @LawSelfDefense

      I have a feeling by not granting a directed verdict on Murder II, the Judge may have actually helped the Defense.

      The proper thing would be to let Zimmerman go home and end this fiasco. But short of that a split decision sends a signal there is some basis for Manslaughter. So maybe this result is second best.

        xfactor in reply to EBL. | July 7, 2013 at 11:38 pm

        I have thought something similar – removing the 2nd degree charge might make a jury more amenable to a manslaughter charge.

        Catherine in reply to EBL. | July 8, 2013 at 12:09 am

        It would be an act of courage for Judge Nelson to grant the motion of acquittal after people were riled up against Zimmerman. Perhaps she decided at the beginning that she was going to let the jury do the heavy lifting so that she wouldn’t be blamed by the riled up populace.

        If she was going to be a coward, couldn’t she have said that she doesn’t want this case?

not_surprised | July 7, 2013 at 8:23 pm

Thanks for the article Andrew! why can’t the defense appeal the denial like they did with the motion to depose crump?

    It takes time, effort, research to do a solide appeal. Right now they have their hands full with the trial. It’s just another of the 500 basis for reversal of any guilty verdict–just click through some of the relevant cases I included above, particularly the ones in which a guilty verdict was reversed–sometimes with prejudice–for failure to grant a reasonably requested judgment for acquittal in a self-defense case.

    I should have mentioned in the piece, this used to be much more common than it is today. Once the immunity provision of the Florida self-defense law was passed, the judgment for acquittal motion was essentially transformed into a pre-trial immunity hearing. So now there’s rarely a trial record of judgment for acquittal in a self-defense case, because they mostly get kicked out before things ever get to trial. Prior to the immunity provision the defendant had to wait until the State rested before trying for a judgment of acquittal, resulting in the creation of an (at least partial) trial record.

    –Andrew, @LawSelfDefense

      billc in reply to Andrew Branca. | July 7, 2013 at 8:36 pm

      I posted this on the other post about the racially motivated case but this has fewer responses right now so I thought you might see it where as over there it might be easily missed…Do you have any thoughts on witness #9? I know she doesn’t have any bearing on this case, since the prosecution ended it’s case without calling her, but how does one feel good about an acquital here when that is hanging over everthing? I come from a position of agreeing with all the posts on this trial here at legal insurrection and I come here to see the case…everywhere esle is biased towards Martin (except for Greta ) so it is nice to come here and see how good the defense is…and then I think about witness #9. Any thoughts or comments to ease my mind?

        Cowboy Curtis in reply to billc. | July 7, 2013 at 9:29 pm

        1) Without the defense basing its case on character testimony (how great a guy he is), how would it ever get in? Its hyper-prejudicial and utterly irrelevant to the facts and events at issue. Even if it were proven true (I don’t know the guy, it might very well be), it would be a past bad act, and those are only allowed into evidence in very certain types of cases (mostly sex crimes), of which this isn’t one.

        2) Even if he is guilty of all sorts of horrendous crimes, I still would not want to see a conviction in this case. Its a political prosecution, utterly lacking in evidence, and should never have been brought. That it was is a perversion of our justice system. GZ might be the biggest SOB on the planet, and deserve hanging 50 times over, but that isn’t what’s important here. What is important is that this could be anyone of us. They aren’t prosecuting him because they think he’s a pervert, they’re prosecuting him because enough people screamed for his scalp and the powers that be decided it would politically convenient and/or advantageous to give it to them, no matter how baseless the case might be. If a case like this is allowed to stand, don’t kid yourself that they’d never do it to you.

          kentuckyliz in reply to Cowboy Curtis. | July 7, 2013 at 11:51 pm

          Re: point 2: agreed. Even icky people get to defend themselves. It’s sort of like a prostitute getting raped. It can happen.

      fogflyer in reply to Andrew Branca. | July 7, 2013 at 9:58 pm

      I am glad you brought that up.

      I originally assumed that the defense did not do the pretrial motion for dismissal because it was strictly a Stand Your Ground motion, and seeing as this was not a stand your ground case, they could not avail themselves of that hearing.

      Now, it seems I am reading that they could have had the pretrial hearing. Is that correct? Can you have a hearing like that for any self defense case?

      If so, why did the defense choose to discard that option?

      Thanks!

        There’s no such thing as a pre-trial SYG hearing, but the mistake is understandable as event he lawyers call it that sometimes–even though it’s not even the same statute.

        It’s actually a pre-trial immunity hearing. SYG is a totally separate issue, it’s the immunity hearing that can kick you out of the machine pre-trial (although SYG, like every other facet of self-defense law, would be considered at the immunity hearing to determine whether you likely acted in lawful self-defense).

        –Andrew, @LawSelfDefense

          fogflyer in reply to Andrew Branca. | July 7, 2013 at 10:29 pm

          So why didn’t the defense do this?
          What was the down side?

          legacyrepublican in reply to Andrew Branca. | July 7, 2013 at 10:42 pm

          As I heard it, the defense choose to forgo the immunity hearing so the state didn’t have a chance to hear their strategy before the actual trial.

          Seems to have been a good decision. They blind sided every witness because they had more time to research each witness.

          fogflyer in reply to Andrew Branca. | July 7, 2013 at 10:51 pm

          Yeah, I suppose that would make sense you you thought the probability of success was very low.
          I always figured if I was innocent, I would want a judge hearing my case, if I were guilty, I would want a jury. Maybe that reasoning is flawed.

          It still would scare the crap out of me if I were George to put this in the hands of a jury.
          Especially seeing as he had no idea he would get a jury with no black people on it.

          Sorry, but that whole line was just silly stuff for reporters to write columns about.

          The defense strategy has never been a mystery–it’s self-defense 101.

          They didn’t do the pre-trial immunity hearing for the simple reason that it would have been denied, and given that this is a political trial such a denial could have negative consequences. Same reason why O’Mara has allowed George on TV–for the political impact.

          BDLR and Angela Corey are political creatures, not autonomous actors. Any political pressure you can build up in favor of the Zimmerman side contrains their freedom of political operation, however slightly.

          Were this strictly a legal, as opposed to political, trial, I’d guess O’Mara would never allow his client near a camera.

          –Andrew, @LawSelfDefense

          fogflyer in reply to Andrew Branca. | July 7, 2013 at 11:09 pm

          Thanks Andrew,
          That makes sense.

          I guess I just figured if it was heard by a judge, that would be a way to circumvent all the political propaganda and get a verdict based on the merits of the case.

          I guess I am coming to the realization that my thinking on this matter is rather naive. 🙁

          Bruce Hayden in reply to Andrew Branca. | July 8, 2013 at 7:26 am

          Andrew is much closer to the expert here. My guess at the reason for no immunity hearing is first that it would have made obvious the weakness in the state’s case, and let them somewhat have a do-over if the defense lost the motion, as they likely expected to, and for good reason, given the judge’s ruling on the acquittal motion. The defense’s burden was higher at an immunity hearing, and the defense much better prepared after the prosecution rested during trial. So, with the judge denying this much more compelling motion, I think defense made a shrewd move skipping the immunity hearing that would have been almost automatic with this evidence, absent the politization of the case.

          As to why so many call it a SYG hearing – my guess is because the immunity provisions were enacted at the same time as SYG. Unfortunately, it has resulted in a lot of discussion of SYG, which has never really been all that relevant to the Zimmerman case.

        Milhouse in reply to fogflyer. | July 8, 2013 at 3:57 am

        The defense discarded that option because it was already evident that the judge is in bed with the prosecution, and would deny it. The idea is a good one, but it depends on having an honest judge.

      Paladin1789 in reply to Andrew Branca. | July 8, 2013 at 12:15 am

      “Why didn’t the defense appeal?”

      Florida’s appellate courts hold limited jurisdiction over pre-trial decisions. The discovery motions and rulings were presumably decided under common law “all writs” certiorari. Most trial rulings would not rise to the level of clear violations of settled law that could not be remedied on plenary appeal after judgment.

      Frankly, the issue I am surprised was not taken up was the delay in considering sanctions for prosecutorial discovery abuse. By waiting until after trial, the judge cannot fashion a sanction that forecloses the state and its counsel from profiting from the abuse. Also, if other discovery was tainted or made unavailable by improper behavior, a post-trial remedy would be legally inadequate.

      Florida courts in general, and the Fifth District in particular, are loath to get involved in calendar issues and almost always defer to the trial judge’s discretion. Still, it seemed like an opportunity to get some adult supervision, perhaps with a substantial upside. Judgment call, and the defense has lots of bigger judgments to call.

        Paladin1789 writes: “Frankly, the issue I am surprised was not taken up was the delay in considering sanctions for prosecutorial discovery abuse. By waiting until after trial, the judge cannot fashion a sanction that forecloses the state and its counsel from profiting from the abuse. Also, if other discovery was tainted or made unavailable by improper behavior, a post-trial remedy would be legally inadequate. ”

        As they used to say in the old Batman TV show: Ka-POW. Right on.

        Are you an attorney in FL, Paladin? It would be a great relief to have a real expert in FL court procedure commenting on such matters–I certainly claim no such expertise.

        –Andrew, @LawSelfDefense

          Paladin1789 in reply to Andrew Branca. | July 8, 2013 at 9:08 am

          I do complex commercial litigation out of Tampa, so I claim no expertise in criminal procedure. Have handled a couple hundred appellate cases.

          BTW, as you know but some readers may not, the JOA motion was entirely controlled by concerns over issue preservation. Florida law is very picky in requiring the defense to first present every issue to the trial court and getting that judge’s ruling. Appellate courts do not think their job is to decide whether the State did anything wrong but whether a constitutional officer – the trial judge — committed error. The dancing around you saw on Friday was a deliberate effort to make sure a the necessary boxes had been checked. Nobody wants to have to argue some issue was “fundamental error” after they failed to make argument and secure an (adverse) ruling.

          We will see the same process at work at the end of the state’s case when the motion is renewed and denied.

        Exiliado in reply to Paladin1789. | July 8, 2013 at 9:16 am

        What I would really want to know is, what chance do we, citizens of Florida stand when both Judge and Prosecutors act in this manner.

        I have to say it: I AM TERRIFIED.
        This trial is telling me that we are really at the mercy of the powers that be.
        Even if Zimmerman is acquitted, my faith in our justice system has been seriously damaged.

One thing for sure about Leftists. They have no shame.

Mountains of evidence cannot even begin to prevent them from pursuing their agenda. Three year old children have a better developed conscience.

A refusal to bow to, or even acknowledge the existence of morality is a powerful thing.

The only hope I have to offer is that there are many situations throughout history of people who had great success resulting from their alien ideologies. The Huns, Ghenghis Khan, the Nazis, etc., etc., etc.; but who eventually fell to the force of civilization. That’s the good news.

The bad news is that, in every case, it either took total war to defeat them, or decades and chains of extraordinary circumstance. The Black Death is one that comes to mind.

We’re in trouble.

    Fredro in reply to donmc. | July 7, 2013 at 11:56 pm

    I am honestly confused: The Prosecution obviously wants us to think that Trayvon (not GZ) was the one yelling help for 40 seconds or so prior to getting shot. Can someone please provide a plausible scenario that would have GZ getting pounded in the face and having his head smacked against concrete while TRAYVON is yelling for help? I really can’t play this movie in my mind. Am I missing something?

    On a related note, can someone please explain how we are suppose to believe that Trayvon is scared and threatened by being followed by mad-dog GZ when he (Trayvon) could just GO HOME and be there in seconds? He had MINUTES to do so, by my calculation. Isn’t it clear that he was simply offended by GZ’s suspicion of him and wanted to whip the creepy-ass cracker to teach him a lesson?

    These two scenarios being painted by the Prosecution (Trayvon yelling for help and Travon feeling hunted down by a overzealous cop-wannabe) just make so little sense to me!

      Join the club. It comes down to a lack of credibility where the Persecution is concerned. Their case is simply not credible in my mind.

      If I was one of those 6 jurors I would have switched off to the Persecution because of their lies.

txantimedia | July 7, 2013 at 8:26 pm

Another one.
“Conversely, the courts have consistent held that it is almost impossible for that spite”
should be
“Conversely, the courts have consistently held that it is almost impossible for that spite

    Thanks, fixed!

    FYI, this piece was among my most hurried ever, so I expect there will be more than the usual number of typos, etc. Just hit me with ’em as you see ’em, and I’ll plug in the fixes until sleep wins. 🙂

    –Andrew, @LawSelfDefense

      Browndog in reply to Andrew Branca. | July 7, 2013 at 8:40 pm

      Personally, I’m a little sick and tired of the grammar nazi’s picking apart every last textual utterance you make…

      …almost as if they are trying to deflect the meaning of the text…

      …almost as if this is not a blog post.

      Soldier on, my good man.

        snopercod in reply to Browndog. | July 7, 2013 at 8:48 pm

        That’s not it at all. The “grammar nazis” know that Mr. Blanca’s words are receiving wide circulation and the left will focus on any minor spelling/grammatical errors rather than the content. Lighten up.

          gasper in reply to snopercod. | July 7, 2013 at 8:57 pm

          The left doesn’t need a reason to oppose anything. I think we can read and interpret the information Andrew is relaying to us just fine. I enjoy reading the comments, but those pointing out grammar missteps irritate me to no end.

          Browndog in reply to snopercod. | July 7, 2013 at 9:17 pm

          Nope. I won’t. The time Andrew spends of this blog is valuable. If not to you, to him.

          The time he takes responding to language corrections takes away from the time he spends here regarding the case.

          Further, he is a guest of Prof. Jacobson. You’d think you’d make his time here enjoyable as possible, not feeling like he’s getting put through the ringer every time he posts.

          But, that’s just how I see it. You are more than welcome to see it differently.

          Browndog,

          Evidently you don’t know writers. We love having good editors. Even crowd sourced editors.

          I have a good editor who is not to conversant with my field. She forces me to be clear in places that I’m not. It is good.

          “not to conversant” should be “not too conversant”. I need an editor. LOL.

        gasper in reply to Browndog. | July 7, 2013 at 8:49 pm

        Amen! and Amen! It has gotten fairly ridiculous.

        we want Andrew to get it right because we are helping him edit his next book which will be to cover the self-defense aspects of the Zimmerman case.

        Juba Doobai! in reply to Browndog. | July 7, 2013 at 9:05 pm

        Andrew expressed his gratitude for and welcomed the assistance of us grammarians. Why do you object to grammatically sound writing when it can teach readers a thing or two?

          inspectorudy in reply to Juba Doobai!. | July 7, 2013 at 11:53 pm

          I was taught as a child that to correct someone in public was rude and did more harm than good. If you feel the need to correct Andrew then maybe you could e-mail him with your valuable corrections.

          I’m offended at almost nothing, certainly not at spelling (which I originally typed as “speeling”, so there you go). 🙂

          –Andrew, @LawSelfDefense

          Milhouse in reply to Juba Doobai!. | July 8, 2013 at 4:03 am

          Well, whoever taught you as a child was a f—ing idiot and you should forget everything they taught you.

        Milhouse in reply to Browndog. | July 8, 2013 at 4:01 am

        It’s called editing. And since when are blog posts exempt from the normal standards of correct English? What’s the difference between a blog post and a newspaper column?

          Money.

          Most journalists are paid, and work for organizations that provide paid editorial straff.

          Most bloggers are not paid, and their range of colleagues consist mostly of spouses, children, and pets.

          New to the internets, are we?

          –Andrew, @LawSelfDefense

          Bruce Hayden in reply to Milhouse. | July 8, 2013 at 7:38 am

          Andrew pointed out that money was one difference. Another is time. People with real jobs can fit in blogging because it doesn’t take as much time.

      spelling nazi alert

      please change “spit” to “spite” thanks 🙂

        “Spit,” eh? I must have been thinking of this:

        “Every normal must must be tempted at times to spit upon his hands, hoist the black flag, and begin slitting throats.” — H.L. Mencken.

        –Andrew, @LawSelfDefense

          Humphreys Executor in reply to Andrew Branca. | July 7, 2013 at 11:13 pm

          Mencken! I propose this Mencken quote to describe the State’s arguments in this case: “It crawls out o the dark abysm of pish, and climbs insanely up the tallest pinnacle of posh!

      PookiesMom in reply to Andrew Branca. | July 7, 2013 at 9:04 pm

      Andrew, I’m not one of those grammar police types….I’m horrible at all of it but I did notice that you wrote…”Jenkins grabbed his NICE,” I think you meant his KNIFE. Thank you for all the hard work you’re doing to inform us layman on this case.

      Juba Doobai! in reply to Andrew Branca. | July 7, 2013 at 9:08 pm

      As I said before, I’ll edit the completed book pro bono in gratitude for your marvelous work, Andrew.

michaelwonders | July 7, 2013 at 8:26 pm

I’m curious about the makeup of the jury. I know this is a late question since the jury was selected two weeks ago, but I’m curious how we ended up with an all female jury. Did the defense really want this? Why did the judge stop the prosecution from striking white females but not all males? In other words, why was it okay to have an all female jury but not okay to have an all minority jury? You all probably have talked about this before, but I didn’t see the discussion.

arcticspinnaker | July 7, 2013 at 8:28 pm

Mr. Branca,

Thank you for your continual and comprehensive coverage of this attempt at a miscarriage of justice.

txantimedia | July 7, 2013 at 8:33 pm

Very clear analysis of the argument, Andrew. You wrote precisely what I recall.

    O’Mara wasn’t at his best during this motion–hard to be at one’s best when the Judge is checking whether it’s time for another shave while you’re arguing for your client’s liberty–and he wandered around a bit more than usual. I tried to get things back on a more linear, sequential track–hope it worked.

    Plus, I thought people might like to read the actual cases. Anybody can get up there and cite this case or that case, but until you check yourself you don’t know if they’re full of poop or not.

    It was refreshing to see the fight come back in O’Mara after the Mantei presentations (sorry, misrepresentation)–but I ran out of time to cover the all the rest of that in this one post.

    –Andrew, @LawSelfDefense

      ‘…the Judge is checking whether it’s time for another shave…’

      Oh, no you din’t say dat!

      (Bravo, good man! Bravo!)

      Humphreys Executor in reply to Andrew Branca. | July 7, 2013 at 10:33 pm

      “O’Mara wasn’t at his best during this motion–hard to be at one’s best when the Judge is checking whether it’s time for another shave while you’re arguing for your client’s liberty….

      Dammit, I almost spit out a mouthful of good scotch. Be more careful next time! LOL

      Since Andrew opened the door…

      – How many times in her life did JDN remind the teacher that she forgot to assign math homework?

      – When her table is ready, does the hostess say: ‘Bitter, party of one. Bitter, party of one.’

      – Do you think GZ gained all that weight to curry favor with JDN?

        graytonb in reply to Fabi. | July 7, 2013 at 11:17 pm

        You’d think that the judge would have some empathy for Zimmerman , who according to O’Mara, has gained over 100 lbs since the arrest. Her CV picture shows a much more svelte and attractive (albeit younger) Nelson.

        inspectorudy in reply to Fabi. | July 7, 2013 at 11:58 pm

        Fabi, even though you mentioned GZ’s weight gain for another reason I have wondered why MOM didn’t want GZ to go on a crash diet to minimize the weight difference between TM and GZ. It would seem like that would only help the image of TM on top beating the hell out of GZ.

          You ever try to MAKE somebody loss weight they didn’t genuinely want to lose?

          –Andrew, @LawSelfDefense

          Crash diets are rarely successful. You need to exercise. George has been restricted because of this case.

          Once he is a free man then he can start from scratch and attempt to lose the weight with both diet and exercise.

          I feel a lot of sympathy with regard to George’s weight. It is not easy to lose weight and then keep it off.

          One thing we do not know is what medical conditions he might have. I point to the sacroiliitis because it existed prior to the attack and was probably made worse by the attack. I add here that the condition would have made impacted upon George’s ability to run very fast… and if I am correct in what I am surmising then another myth bites the dust.

      Gremlin1974 in reply to Andrew Branca. | July 8, 2013 at 12:12 am

      Isn’t this Judge one of the judges that has had self defense cases reversed in the past.

      Also, I think part of her rulings are that she is P.O.’s that they got her ruling on deposing Crump reversed. Because it basically says “if we can get one reversed we may be able to get more reversed”.

      Also, if he is convicted of even manslaughter, there have been so many questionable rulings that a conviction will never survive appeal.

        5th DCA has slapped her down more than once in this case alone.

        By the way, I’ve worked on a ’74 Gremlin, and am a little ashamed to admit I did.

        Don’t tell me you have running?

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | July 8, 2013 at 5:25 pm

          LOL, no it is actually an old military call sign and my DOB, lol. 74 Gremlin huh, super sexy that one is, you were pulling all the ladies weren’t ya.

Yea, it was a tough call for the Judge.

I thought she’d never get to her ruling, with all that back and forth, weighing each argument and case law.

    Fabi in reply to Browndog. | July 7, 2013 at 10:36 pm

    Indeed. Almost as much intrigue as waiting for her to overrule a defense objection!

    When seconds count against you, her rulings are only milliseconds away!

txantimedia | July 7, 2013 at 8:36 pm

I look forward to your analysis of the State’s response. I thought it was reprehensible. I didn’t realize that prosecutors were allowed to blatantly lie to the judge about evidence that had already been presented. That’s a scary thought.

    Reprehensible, despicable, duplicitous–all the qualities society wants in its State prosecutors, eh?

    –Andrew, @LawSelfDefense

      boricuafudd in reply to Andrew Branca. | July 7, 2013 at 8:55 pm

      He invalidated all self-defense claims regardless of the situation. Or maybe he just meant gun-related self-defense case.

      inspectorudy in reply to Andrew Branca. | July 8, 2013 at 12:00 am

      Is there ever an instant that would allow the defense to sue or to ask for sanctions against out right lies by the state when facts can be shown to disprove what they are saying?

        Do you mean in theory? Or in real life?

        George Zimmerman will never recover a dime from the government of Florida.

        Doesn’t mean some of these witch-hunters won’t end up disbarred or in prison.

        That might be worth more than money. I can always make more money. Can’t always see my enemies justly punished.

        –Andrew, @LawSelfDefense

      Bruce Hayden in reply to Andrew Branca. | July 8, 2013 at 8:04 am

      At a minimum, I think that some should file a grievance against him when this is over. I think that the trial is too political for the judge to sanction the prosecutor, but bar discipline is more removed, and thus more likely to result in some sort of justice. Ethically, attorneys are supposed to be honest, and esp so before a court. President Clinton had his law license suspended for 5 years for lying. This isn’t under oath, but still seemingly being untruthful. And my memory is that this sort of thing has been sanctioned in other states.

      The problem with prosecutors lying or otherwise being dishonest in court is that innocent people go to jail as a result. People are deprived of part of their lives as a result of this dishonesty. Maybe not in any one specific case, but averaged out over their careers. This is why a lot of states hold prosecutors to an even higher standard than other attorneys.

      Here are a couple of examples from Colorado a couple of decades ago. In one, t

      That said, the Florida criminal bar got a reputation at one time, due to all the drug money sloshing around, of getting away with a lot of stuff ethically that wouldn’t fly in many other jurisdictions. Attorneys getting 90 day suspensions for accepting drugs or illegal guns for fees (that usually results in disbarment where I am from). That sort of thing. So, wouldn’t e be surprised if the bar discipline people cut prosecutors some slack too.

        Bruce Hayden in reply to Bruce Hayden. | July 8, 2013 at 8:21 am

        Fat fingered that last post and didn’t complete it. So here are the two examples.

        An elected DA is suspended for three years for buying pot for his wife. He was the highest law enforcement officer in a multi-county area. That was an aggravating factor. Mitigation was a clean record, extreme remorse, public service, etc, which got him suspension instead of disbarment.

        The second, about the same time involved an asst DA (prosecutor) who used undercover cops to catch a defense attorney trading his services for illegal guns. That was dishonest enough to get him disciplined (my memory is a 90 day suspension). The defense attorney was disbarred.

        In both cases, the Supreme Court made clear that these prosecutors were being held to a higher standard than other attorneys. (All 3 cases were published about the same time).

        And of course, discipline varies state to state. We see pretty egregious ethical behavior by prospectors on TV all the time. Some is exaggeration, but some is not. I think that a lot of prosecutors are under a lot of pressure to be team players with the cops, and end up condoning a lot of stuff they maybe shouldn’t..

    Juba Doobai! in reply to txantimedia. | July 7, 2013 at 8:57 pm

    I dîdn’t realize that judges permitted blatant lies as a reasonable response when evidence contradicting such lies has already been presented,

      kentuckyliz in reply to Juba Doobai!. | July 7, 2013 at 11:59 pm

      Not only that–Mantei lied about the evidence he fought so hard to get in front of the jury! He said GZ identified himself as NWP on all the previous calls but not this night. BS flag on the play. The first two calls GZ didn’t, because the NWP hadn’t started yet. Also, those first two calls are what his wife was seeing, guys who she witnessed doing a burglary shortly before. The third call is about an open garage and not a person at all. The last two are about clearly suspicious behavior–loitering at the entrance of the gated community, and someone casing a house up close and repeatedly. It is always the dispatcher that asks about race–GZ never spontaneously brings it up. But Mantei lies about this evidence in his rebuttal. Evil.

Many circuit court judges started out on some locally-elected minor court bench. Nelson is thus another example of why elections DO matter.

Paladin1789 | July 7, 2013 at 8:44 pm

Hoping you get around to recounting the testimony of Bao and the context of what you have described as a surprising and disconcerting testimonial session.

Interestingly, Andrew, the national press corps is catching up with you. Dan Abrams comes up with this essay today on ABC:

http://abcnews.go.com/US/george-zimmerman-convicted-murder-manslaughter/storynew?id=19598422#.UdoBDBYq8oY

He agrees with you, Prof Jacobson, Rags, me and many of your legal beagle commenters.

Is this a break in the dike? I hope so.

    Ha, ha, I’m increasingly seeing the points I’m making in daily posts get picked up by MSM types. Sometimes they credit, usually not. *shrug*

    –Andrew, @LawSelfDefense

      Mika-Samy in reply to Andrew Branca. | July 7, 2013 at 10:01 pm

      I emailed Greta and suggested she have you as a guest on her show (after listening to some of the air heads she’s had on lately). I’ll be watching to see if you appear! -:) Great chance to tout your book!

      inspectorudy in reply to Andrew Branca. | July 8, 2013 at 12:04 am

      Andrew, please stop using capital letters when writing msm. They do not deserve capitals in fact I think all asterisks would do just fine:-)

    Juba Doobai! in reply to Jim. | July 7, 2013 at 9:01 pm

    From the first page, Abrams’s report is shot through with the threads of the earlier false narrative. His gist seems to be that GZ is gonna walk despite the cops telling him he didn’t need to follow TM. IOW, GZ walks even though he started it. IMO, it’s inflammatory rather than a straight reporting of the case, as Andrew has been doing.

    northcross in reply to Jim. | July 7, 2013 at 9:44 pm

    Breaking News from ABC: You remember that case down in Florida where a skinhead Nazi named Zimmerman hunted down a sweet little black kid like a dog and killed him in cold blood? Well he just may get away with it. The narrative was rock solid; we just had a little problem with the lack of actual evidence and the testimony of all the witnesses.

      Uncle Samuel in reply to northcross. | July 7, 2013 at 10:01 pm

      Perfect synopsis of ABC’s latest propaganda piece.

      inspectorudy in reply to northcross. | July 8, 2013 at 12:07 am

      Your summary of Dan Abrams pis spot on. That was the most one sided piece of trash I have ever written on a trial that was underway. Abrams slanted every single remark against GZ. I was so angry that I wanted to write a comment but then I read some of the ones that were already there and realized that I would be talking to a ship of fools.

    Daiwa in reply to Jim. | July 8, 2013 at 1:00 am

    It is a very grudging concession, not much of a break in the dike. Abrams is saying very clearly he believes that Zimmerman is going to walk despite being guilty, as some believe was the case with OJ. Nothing there about the merits of his defense, just the (clearly disappointing, to him) inability of the state to make the charges stick.

    Abrams wants it both ways and is laying ground work for being ‘right’ either way it goes. Just a schmuck. Complete opposite of the yeoman Mr. Branca. I’m lovin’ the work you’re doing, Andrew. Can’t thank you enough for the effort. Check that – I know, buy the book. 😉

They may be saying that now, but that is only because they want to be on the side that “knew,” this case shouldn’t have been brought forward. It would be more impressive if these lefty lawyers commented this way before the prosecution messed up their case.

Juba Doobai! | July 7, 2013 at 8:55 pm

So, built in to this case’s proceedings is the ground for the reversal of any verdict of guilt. One can hope that the jury responds to the facts, sets aside considerations of personal fear, and does what is right.

It seems that this case was brought based upon a curious double standard in American law today: if the narrative presents as black-on-black, then it rouses no one to any action or heights of faux passion; if it describes white-on-black, then it causes a great deal of social turbulence and demands for “justice”, without regard for the facts and the evidence. From this, springs post-verdict riots, if the verdict is deemed as unfavorable to the community though consistent with the facts and the evidence.

In this is a parallel to the Arab world. The reaction is the same. They slaughter each other all the time, and the world body shrugs. That’s how they are. Let America or Israel kill a few of them, in response to an Arab-generated event, and the entire region, even the world, is in an uproar, complete with threats of reprisal, which are often fulfilled.

I don’t touch on the historical basis as just cause for the reaction to white-on-black violence considering it not relevant because of the change in social attitudes and values since Jim Crow era and the refusal to consider evidence.

Spelling Nazi alert.

Andrew please change “rubbing” to “rubber-stamped” thanks.

    Check again, I think you’re mistaken.

    Just kidding, fixed it, and thanks. 🙂

    –Andrew, @LawSelfDefense

    Browndog in reply to Aussie. | July 7, 2013 at 9:30 pm

    “Rubbing” was spelled correctly-

    You chose to rubbed the wrong way by it’s use.

      Keyboards and spellcheck can do strange things. The word in that case should have been rubbed, not “rubbing”. Since these posts are a prelude to Andrew’s next blockbuster book, then we are just doing the editing now, rather than later.

Mr. Branca,
Enjoying your coverage and insights a lot. Just curious, IANAL, but what has the State’s case and Judge’s conduct of the case mean with respect to any appeal Mr. Zimmerman may have if found guilty. To me, many of the state-biased decisions on evidence, or process (like the Crump deposition issues) seem like this case is on a rocket sled for reversal on appeal if he were to be found guilty.

Can you comment on the appeallete (sp?) implications at your convienence?

Thanks much…

    No guilty verdict from this trial will withstand appeal. There at least a half-dozen serious due process violations, and a plethora of smaller offenses that individually might amount to “trial judge discretion” but which cumulatively have poisoned this entire courtroom.

    Every time the defense team has appealed a Judge Nelson ruling to her bosses up at the 5th District Court they’ve walked away the winner, and she the very sore loser.

    What’s on display here is what happens when you combine one part bad judge with four or five parts bad prosecutors (and by “bad” I mean both ethically anchor-less AND untalented at the task).

    Can you imagine if poor George had ended up with a public defender? I’ve known a number of good ones, but as a whole you’re getting the “freshly stamped” lawyers–and I can assure you, law school teaches you almost NOTHING about the actual practice of law. At least, it didn’t when I went (granted that’s been a while).

    Frankly, I’ve always thought those three years would be far better spent (and less expensively) apprenticing for a law practice–that’s the only real way to learn how to practice law–same as any other skilled craft. (Conversely, as we can see with the prosecutors, the mere fact that you have a JD and have passed the bar does not mean you’re any good at the job at all, even if hired as a State prosecutor–maybe especially if so.)

    –Andrew, @LawSelfDefense

      txantimedia in reply to Andrew Branca. | July 7, 2013 at 9:21 pm

      I can assure you, law school teaches you almost NOTHING about the actual practice of law. At least, it didn’t when I went (granted that’s been a while).

      Andrew, you have to know that law schools teach even less about that now than they did in your day. (No offense, Professor Jacobson.)

      Seriously. Obama was a conlaw prof. Nuff said?

        Grrrr, NO Obama was never a conlaw professor.

        I hate that particular piece of misinformation more than most of them. The Constitution is a thing of existential beauty to me.

        Obama was a guest lecturer, with “choom gang tenure,” nothing more.

        –Andrew, @LawSelfDefense

          txantimedia in reply to Andrew Branca. | July 7, 2013 at 9:32 pm

          I promise, I swear, never to believe another word in the media without verifying it myself personally.

          Andrew, I am in complete agreement with you about that subject, yet I am not a citizen of the USA.

          Law professors are supposed to be tenured. That person did not teach Constitutional Law. It is a lie.

      graytonb in reply to Andrew Branca. | July 7, 2013 at 10:46 pm

      I agree re appeal…It’s what may happen to GZ while awaiting it that is dismal to contemplate.

      Humphreys Executor in reply to Andrew Branca. | July 7, 2013 at 10:47 pm

      Law school teaches one what area(s) of law applies to a particular situation so you (hopefully) know how to research it. But, yes, practical experience on how to apply the law in real life is indispensable. I never understood many of the nuances of the law until I saw how it applied in real life. The other thing I’ve learned: How amazingly often a set of facts arises that is like some bizarre law school exam question.

      fogflyer in reply to Andrew Branca. | July 7, 2013 at 10:57 pm

      Perhaps, but what do you think the odds are that Zimmerman while survive long enough in general population to get a chance to appeal?

      Gremlin1974 in reply to Andrew Branca. | July 8, 2013 at 12:18 am

      Reminds me of Nursing School. “Here is how not to kill anyone, now go forward and Nurse!” LOL.

      Bruce Hayden in reply to Andrew Branca. | July 8, 2013 at 8:43 am

      My experience is that a lot of PDs and ADAs (prosecutors) got their jobs to get trial experience. Probably no where else can you get that sort of courtroom experience that young or that quickly. When I was in LS, you knew the people who were on this track – they sat at the back of the room and were there just to get their tickets punched. Some were quite bright, but the law, itself, didn’t seem to interest them. What did interest them was the practical side, and esp. When they had the chance to get involved in real cases in internships, etc.

      Then, after getting seasoned, they would move on, some into criminal defense, and others into civil litigation. More probably the latter, because a lot of criminal defense doesn’t pay all that well.

“Further, what meager circumstantial evidence the State had presented was not sufficient to exclude all reasonable hypothesis of guilt.”

Should that be “innocence”?

Carol Herman | July 7, 2013 at 9:06 pm

Sunday. It’s 9PM Eastern. 6PM Coast

Drudge is reporting his headline: ZIMMERMAN WALKS

ABC has thrown in the towel. The article is by Dan Ambrams.

Drudge has a way of going viral, no?

You need to clarify what a “nice” is, as in “Jenkins grabbed his nice, which penetrated the attacker’s heart, killing him.”

I have to say legal insurrection is one of the places I came to to get non-Martin bias in the coverage of the trial. I never watch the “trial,” shows, but this case interested me so I tuned into some of them. Wow. I thought Nancy Grace would be impartial…she wasn’t, and listening to some of the commentators talking about how in their “neighborhoods,” when two guys got into a fist fight they just settled it, without pulling guns. I was surprised when Dr. Baden made that comment, I would have thought he would be able to see the attack as it very likely happened. One guy surprising and punching another guy in an isolated, dark place, in a way that was criminal act rather than two guys punching it out in a bar.

    Bruce Hayden in reply to billc. | July 8, 2013 at 9:01 am

    Problem here, I think, is that we are seeing a clash between two Americas here. The underclass (and probably esp. the black underclass) versus middle class America. In the former, people fight, they die, no problem. Disrespecting someone is grounds for a physical assault, and you had better be able to win it, if you give insult. Very similar to the Wild West, really, before the women, children, and ministers would arrive. Middle class America espouses the rule of law. There are strict rules about when violence can be utilized, and mere insult is rarely justification. Unfortunately, at least so far, the latter make the laws, so this trial is being tried with middle class rules, and not the rules of the jungle.

    I would argue that all the narrative about how Martin may have been justified in assaulting Zimmerman, the idea that two people just slug it out, etc., is culture relativism at its worse. It tries to portray all (or at least these two) cultures as morally equivalent. But, they aren’t. The former is the rule of the strongest and most vicious. The latter tries to protect the weak and innocent. Women and children. Which is why frontier towns would move from the former to the latter when women, children, and ministers would arrive.

      Bruce Hayden in reply to Bruce Hayden. | July 8, 2013 at 9:05 am

      I said “unfortunately” in terms of which culture currently is the one controlling the judicial system and the rules for this trial. What I meant to say is “unfortunately for Trevon Martin and his family”. TM was arguably operating under the rules of the jungle, while GZ operating under middle class rules, which is also which control the trial. If TM had been operating under middle class rules, he would likely be alive today.

Here’s one to fix, and I’m far from perfect. I do this for a living, so I promise that I’m not being critical. I think the word should be “then” and not “than.” And if someone else has pointed it out, I understand. Look for the ***.

Quote: Zimmerman claims that it was at that T intersection that Martin emerged from the bushes, confronted him verbally, than*** aggressively attacked him with a punch…unquote.

    No worries, I’m not defensive about typos, etc., appreciate the help.

    Fixed, and thanks.

    –Andew, @LawSelfDefense

      franker01 in reply to Andrew Branca. | July 7, 2013 at 9:32 pm

      Years ago I offered to work for little or nothing for a Local Community Newspaper when I noticed that one of their car ads hawked RADIO TIRES.

      I felt it would have been of service to my fellow citizens.

      LOL

Well, except for the DNA.
–bks

    txantimedia in reply to bks. | July 7, 2013 at 9:22 pm

    Still smarting from the spanking you got?

    We don’t suffer fools gladly here.

    Gremlin1974 in reply to bks. | July 8, 2013 at 12:23 am

    Let me sum up the DNA testimony for ya there skippy. “Basically, we have no credible DNA evidence and we are pretty much up her as filler.”

    Yep, that about covers it.

TruthBeTold | July 7, 2013 at 9:35 pm

Thanks for the thorough job you’re doing while dissecting the proceedings. Your analysis, insights and comments are valued. I just purchased the new edition of your book from this on-line site to get smarter and to show my appreciation for your phenomenal work.

    That makes you awesome! Thanks so much. It’s only because folks like you are buying the book that I can convince my wife to stick with this and keep my work-work on hold.

    –Andrew, @LawSelfDefense

Mansizedtarget | July 7, 2013 at 9:36 pm

I prepared my own comprehensive after action report to date here. I have to say, this case has upset me and it, and the jury system generally, is my last hope for an America that seems to have gone crazy.

http://mansizedtarget.wordpress.com/2013/07/07/zimmerman-case-review/

    xfactor in reply to Mansizedtarget. | July 7, 2013 at 11:50 pm

    This is why common-sense people need to stop trying to shirk jury duty. When you let fools make up juries, you get bad verdicts.

Good grief. That Jenkins case is almost directly on point, and the judge here just ignores it? Either she really likes getting reversed on appeal, or she’s convinced the jury will acquit, so it won’t be a problem for her.

Mansizedtarget | July 7, 2013 at 9:41 pm

I should add the obvious: Andrew, thank you for doing yeoman’s work on this case. Truthfully, it is so egregious and weak, it is hard at times to know where to begin. These prosecutors are acting maliciously, unethically, but also, thankfully, unpersuasively.

I do wonder if it was right decision not to have the immunity hearing pretrial. Having seen the judge’s demeanor, I believe it was best just to get the show on the road, as we’ve seen. And that was my biggest criticism of the defense team pretrial. I also have to find some fault with Don West, who seemed confused during the professor’s testimony regarding imperfect self-defense (i.e., an unreasonable but sincere belief one was in danger of great bodily harm) and the idea that an attacker recovers the right of self defense when he tries to escape and leave the violent encounter, or cannot do so, and the “victim’s” response has become disproportionate. These are quibbles, though. They have overall done an excellent job.

    If I were in Don West’s shoes I might act confused if the topic of imperfect self-defense came up–and by “act confused” I mean as in “acting”.

    Imperfect self-defense is not where this defense team wants to go–it’s a superhighway to a manslaughter conviction. I’m shocked that the State didn’t attempt that route, but I guess they were just hell-bent on murder 2–or they simply don’t know what imperfect self-defense is, none of them strike me as real trial lawyers, more political types.

    Not that I think imperfect self-defense fits here–Zimmerman still would have had to have initiated the physical confrontation, and there’s no evidence–none, zilch, zero–that he did so. But it might have been an easier sell to the jury.

    Heck, it wouldn’t surprise me if the State just threw it in at closing–surprise! Who’s going to stop them, Judge Nelson? She’s probably already got the jury instruction all printed up and folded in her “Friends of the State Prosecutors” murse.

    In any case, I wouldn’t want to grease the skids to a “compromise” verdict of manslaughter were I on the defense team. I’d wager a soft ice cream cone that Don West knows precisely what imperfect self-defense is.

    –Andrew, @LawSelfDefense

      Mansizedtarget in reply to Andrew Branca. | July 7, 2013 at 9:59 pm

      Correct me if I’m wrong, but imperfect self defense is one thing focused on an unreasonable belief. Imperfect self-defense is “[t]he use of force by one who makes an
      honest but unreasonable mistake that force is necessary to repel an attack.” Black’s Law Dictionary 1390 (8th ed. 2004).

      The recovered right of self defense is another thing, explicitly recognized in Florida statutes, based on the initiator of violence recovering his right of self defense due to disproportion of the attacker’s response and, in Florida and other “stand your ground” states, where the attacker shows an exhaustion of all avenues of retreat and an attempt to leave the encounter. Here Zimmerman’s cries for help and 911 would apply, even if he had shoved Martin, started the fight, or created a “reasonable apprehension” of fear in Martin permitting nondeadly force.

      Florida cases do not recognize common law “imperfect self defense” as far as I know. Of course, if I’m wrong, I’m sure Mantei would call me a despicable liar!

      Gremlin1974 in reply to Andrew Branca. | July 8, 2013 at 12:25 am

      Doesn’t Imperfect self defense only reduce the sentence after the conviction?

        Well, no, but the outcome is the same, and it’s too late to argue the details. It reduces the offense for which you are convicted in the first place.

        But manslaughter is poor consolation to the man who should have walked free.

        Oh, if only he could have learned the rules beforehand . . . . *hint* . . .

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | July 8, 2013 at 5:35 pm

          I have told many people that Zimmerman’s main mistake was that he was far to cooperative before retaining counsel. I tell people to remember that one misspoken statement can determine whether you live for the next 20 to life.

          I actually refer folks to your first book and to Massad Ayoob’s video

          http://www.youtube.com/watch?v=pCZXZMYyRl4

          I hope and Pray that no one ever has to fire a weapon in anger again, however unfortunately this planet is full of humans, so that is doubtful to happen.

      folded up in her “murse” Is that a special purse?

Carol Herman | July 7, 2013 at 9:46 pm

NY Post has a funny headline. Whose in charge of running “Flordia?”

Welcome to ‘Flordia!’ Interstate highway sign misspelled state name…twice

An interstate road sign near Jacksonville is being replaced because the word “Florida” is misspelled — twice. The road sign on I-95 spells the state “Flordia” two times. A spokesperson for the Florida Department of Transportation said the sign… 11:41 AM

No worries, I’m not defensive about typos, etc.,

I’ll tell you what I’m defensive about–this blog.

This sudden infatuation with the grammar/spelling of blog posts written by Andrew Branca wreaks.

Suddenly, without warning, a man, a guest of this blog, is seemingly as illiterate as Witness No. 8.

….while pushing a book.

A book, some seem to feel a heroic passion to help edit.

Some talk about the notoriety and attention being paid to the fine work being done by Legal Insurrection, and guest blogger Andrew Branca in regard to the Zimmerman trial. Oh, how we wish Branca was literate, as to not embarrass himself, his book and this blog.

I’ve been on this blog a looong time, and have never seen anything like this.

There be some creepy-ass stink up in here from Denmarck.

    txantimedia in reply to Browndog. | July 7, 2013 at 10:04 pm

    If you think literacy is evidenced by what people write on blogs, you haven’t been on the internet very long.

    “Denmarck”?

    Hoist-petard much?

    –Andrew, @LawSelfDefense

    get off your soapbox browndog.

    Errors are not always significant. However, when one is presenting something to the public at large, errors need to be avoided.

    Some of us feel that these posts are so good that they are a book in the making.

      Browndog in reply to Aussie. | July 7, 2013 at 10:50 pm

      Heh- talk about a soap box.

      Fascinating, isn’t it, that none of you had an inkling that just maybe, while addressing spelling nazi’s, that select spelling errors are intentional?

      Hmm…

      Kinda goes to “mindset”, doesn’t it.

      Anywho, I got my point across, and see we’re back on topic.

        Daiwa in reply to Browndog. | July 8, 2013 at 1:22 am

        I got it, but it seems to have served only to spin things a little further out of control. Funny, though.

    BTW the name of the country is DENMARK.

    To add insult to your injury, the wife of the Crown Prince of Denmark is an Australian, and that makes us very interested in making sure the name is correct!! ROFL

    Michiguy in reply to Browndog. | July 7, 2013 at 10:34 pm

    This sudden infatuation with the grammar/spelling of blog posts written by Andrew Branca wreaks.

    Wreaks? Wreaks what?

    Something does reek though. Geez, please give it a rest. I think Andrew just made his feelings on this pretty clear.

    Fen in reply to Browndog. | July 7, 2013 at 10:52 pm

    Browndog: “I’ll tell you what I’m defensive about–this blog. This sudden infatuation with the grammar/spelling..”

    Oh, lighten up Francis. The corrections are necessary, as this blog’s analysis is being widely circulated to people who are, for the first time, hearing a FACTUAL narrative at odds with everything the MSM has been shoveling. A significant grammar/spelling error gets in the way of all that and distracts, like a cell phone interupting an important negotiaton.

    Humphreys Executor in reply to Browndog. | July 7, 2013 at 10:59 pm

    One of Churchill’s editors took him to task for ending a sentence with preposition. Churchill responded: “It is this sort of thing up with which I will not put!”

    stella dallas in reply to Browndog. | July 7, 2013 at 11:17 pm

    “This sudden infatuation with the grammar… wreaks.” Is it possible you mean it reeks? LOL

Flordia is one the 57 states doncha know 🙂

Mansizedtarget | July 7, 2013 at 10:02 pm

Florida cases, incidentally, do not recognize imperfect self-defense. See (from your blog) Hill v. State:

http://lawofselfdefense.com/law_case/hill-v-state-979-so-2d-1134-fl-ct-app-2008/

    And there’s no evidence that George Zimmerman grabbed Trayvon Martin to start the confrontation, but that didn’t stop Mantei from making that claim several times on Friday.

    And Nelson did nothing to correct the record.

    –Andrew, @LawSelfDefense

Mr. Branca, haven’t you been saying that the 16 yr. Diamond Dee-Dee’s testimony is enough direct evidence for Judge Nelson to deny a directed verdict? What makes you think now, as opposed to earlier, that her incoherent testimony is “slight or incredible that no jury could use it come to a verdict of guilty”? I only ask b/c I need to explain to my friends and family why “I” now think there should have been action by the judge (considering I have quoted you extensively in order to sound smart and knowledgeable)

    In most jurisdictions, that’s the standard rule–just about ANY factual dispute will be enough to get a matter to the jury.

    But I don’t practice law in Florida, or anywhere else but Massachusetts. There are 49 other states than Massachusetts so to some degree it’s necessary to generalize. The laws of self-defense I know if fine detail for all 50 states, but other facets of the law, rules of evidence, standards for motions, etc., less so in specific detail.

    It would be pretty hard to be an expert lawyer in all 50 states on every facet of the practice of law. 🙂

    Florida has case law that differs from that of Massachusetts and other states, in this area of direct/indirect evidence and JOA’s in self-defense cases in particular–not too surprising, really, it’s a rather esoteric area of criminal law.

    It wasn’t until I heard O’Mara’s oral motion on Friday that I realized just how different a standard it is.

    Hence, the extensive right up and the links to all the underlying decisions, so other folks could educate themselves from the source material, as I did, rather than just based on what some dude is saying on the internets.

    –Andrew, @LawSelfDefense

    Uncle Samuel in reply to Jazzizhep. | July 7, 2013 at 10:21 pm

    Unless someone can supply a certified transcript and recording of Diamond DeeDee Rachel’s conversations with Trayvon, nothing she has testified so far holds water.

    She’s not credible. Her account is not congruent with the time table, the testimony of the other witnesses, nor with the map.

      I hope, perhaps beyond most anything, that today’s little convo with a certain rotund attorney sheds (or mail sheds!) just a little bit (there I go again!) of light on the testimony of Diamond Eugene! Under the jail with this mush-mouthed prevaricator! Grabbest thou petard!

        Uncle Samuel in reply to Fabi. | July 8, 2013 at 3:46 am

        Perhaps DeeDee/Rachel is the most presentable, (capable of staying sober, being coached, testifying to order) of the females with whom TM spoke/texted that day and evening or were on his phone contacts list.

        Perhaps the others were less so.

      inspectorudy in reply to Uncle Samuel. | July 8, 2013 at 12:23 am

      Sam, you must not ever watch the enemy networks because they have had talking heads that say the she was not only emotional and convincing but credible. Their take is that the all woman jury will feel her anguish and give her full credit for all of her lies.

      kentuckyliz in reply to Uncle Samuel. | July 8, 2013 at 12:28 am

      There are a couple points from RJ testimony and cell phone records that the jury can use. Cell phone record times are in evidence and not something she can lie about.

      7:11 the TM/RJ call is dropped–RJ said this is when TM started running. He was at or past the T at that point, because Jayne Surdyka heard the low voice talking loudly but not in distress about 5 (10, 2) minutes before the confrontation.

      7:12:06 RJ calls TM back and TM tells her he is at the back of his dad’s girlfriend’s house. He is breathing hard. He continues breathing, and there’s wind noise, and he’s talking to her in a low, quiet voice. RJ tells him to go home (she says…I think she might have egged him on) but he doesn’t.

      RJ hears breathing and wind noise and TM talks to her in a low, quiet voice…which tells me he is going back up to the T in the dark, trying not to be heard and discovered. He has four minutes to get back up there–plenty of time.

      RJ says she hears the confrontation (but gave different versions of what was said)–but in all versions, TM speaks first and GZ responds. She hears the first punch and the people falling to the ground. The headset falls off and the phone cuts off at 7:15:44.

      Jayne Surdyka heard the low, loud, aggressive voice speak first and said it was the same voice she heard before, and that was the aggressor. A quiet, softer high-pitched voice answers. The loud aggressive voice speaks again. That voice pattern corroborates GZ’s version of TM/GZ/TM speaking. JS misattributes the voices because the media presentation of younger pictures of Trayvon (photos that were 3 years old or more) makes her think that the soft high-pitched voice is the little boy Trayvon. She had never heard these men speak before or since, and she wasn’t looking and seeing when she heard these voices so she didn’t make the right attributions. Her testimony is problematic (because after listening to her 911 call in front of the jury on the stand, she insists that the gunshot happened while she was on the phone with the 911 operator–but her call connects 13 seconds after the gunshot–it’s not on the recording).

      RJ also has TM calling GZ “creepy ass cracker” and the N word.

      I can believe bits of RJ testimony that work against what she is trying to accomplish on behalf of her friend.

      I expect defense will present the debris field and the impossibility of starting the fight behind Brandi’s house.

      An FBI agent has said that the government is recording and archiving all digital communications and phone calls. It would be fascinating to get the actual recording of the TM RJ calls. C’mon NSA, cough it up!

      Gremlin1974 in reply to Uncle Samuel. | July 8, 2013 at 12:29 am

      Frankly, I think the prosecutions case was shot when they put the crazy lady that heard 3 shots on the stand.

        Sudyka. She was AWESOME.

        “OMGOMGOMGOMGOMG . . *pant*pant*pant* OMGOMGOMGOMGOMG!!!!!! OMG !!!!”

        I’m pretty sure the extra two shots she heard were the dispatcher trying to shoot her through the head to get her off the damn phone.

        –Andrew, @LawSelfDefense

Thanks Mr. Branca for your diligence in making this case understandable to us non-lawyers — this is why I visit the Good Professor’s Blog. And another thanks to Clarice Feldman for linking one of her articles at American Thinker to IL!

As far as poor George is concerned, I hope that jury of six woman possess more critical thinking skills than the infamous OJ jury. America has become a cesspool of racial chicanery and it is tearing this country apart neighborhood by neighborhood. I truly fear for our Republic. 🙁

txantimedia | July 7, 2013 at 10:11 pm

It appears that the new media meme will be that Zimmerman is guilty but the prosecution screwed it up. I’m sure there will comparisons to the OJ case in the coming days.

http://news.yahoo.com/case-against-zimmerman-far-clear-undercut-blunder-181037578.html

Making this argument provides the media with cover while continuing to stir the racial fires. I cannot accept that this is a coincidence. This is a well-thought-through publicity campaign.

    In the Australian Azaria Chamberlain case the prosecution put on an equally pathetic case. The Defence had a witness who showed that the stuff used to determine whether or not fetal blood was in the car was defective, (I think his name was Professor Boetcher) but the jury did not listen to him at all.

    Yes it is true. The stuff that the forensic pathologist used was in fact a faulty batch. What is worse she destroyed the samples that were taken.

    The very last thing that happened in this case where the Chamberlains were fully exonerated was the finding of the matinee jacket.

    Sometimes juries do not listen to the expert testimony when their minds are already made up. That was the case in the Chamberlain case.

    I remain undecided about O.J. Simpson because I have read that it was his son who was probably responsible for those murders. I agree with those who said that there was something wrong about the way that the whole case was handled from the beginning.

    Unfortunately, I see the same thing happening in this case because of all the errors that took place. The way in which the gun was handled, the failure to bag Martin’s hands, the use of plastic bags. All of it means that the case is exceedingly damaged in the first place.

    Rachel Jeantel’s testimony remains useless. I am concerned about something she said when asked about the phone. “It is now was her response” to that question. If that is the case, who owned the phone in the first place?

    graytonb in reply to txantimedia. | July 7, 2013 at 11:08 pm

    In fact, Crump/Sharpton et al have more to gain ( in their twisted world view) from an acquittal.

I sure hope that the closing argument by the defense is as beautifully succinct and compelling as your summary under “Zimmerman Used Deadly Force in Self-Defense Only In Extremis”.

Thank you Andrew, for your most excellent coverage of this trial. I luckily happened upon this website on Day 2 of the jury trial by Googling “Zimmerman trial analysis”!

Andrew, I sure am glad I bought our book in those final hours of your big 30% of sale!!

Now it appears I would have to buy it at only 20% off and go through the hassle of inputting an eight character discount code to get an additional 10% off!

Pretty sneaky lawyer maneuver there 😉

BTW- this is meant as good natured ribbing, so please don’t take offense.
I encourage everyone to buy Andrew’s book as a way of thanking him for all the effort on this blog.

My concern is that the members of the jury are going to start second-guessing themselves after agreeing with Mr. O’Mara only to have the judge dismiss the motion; I fear that this will not end well.

    Mansizedtarget in reply to LIDavidD. | July 7, 2013 at 10:31 pm

    Jury doesn’t hear either side’s arguments on motion. Plus insulated from inane media commentary on case.

I trust, Andrew, in the interest of appealing to the widest possible audience and the most diverse audience, you will have Rachel Jeantel translate a copy of your book into…. into…. into whatever the hell it is she speaks.

Carol Herman | July 7, 2013 at 10:32 pm

Just as Mantei put on his rebuttal to O’Mara’s request for a JOA, Dan Abrams has given you the media’s approach to the acquittal.

I also believe that Gladys Zimmerman’s phont is ringing off the hook. And, many reporters will converge on the Orange County Courthouse, to see if they can find Jorge Meza. They’re going to be overwhelmed for a while … with people looking to get them to give media quotes.

Plus, we don’t know if the judge even comes in tomorrow. All calls in sick? I can just imagine that now we can hear the galloping hooves of the posse arriving, because? Well the media’s horse lost its saddle. And, Dan Abrams is holding on just by the reins. As he hopes he doesn’t get scraped on the ground … And, have Dr. Bao showing up … (who remembers nothing) … to see the condition of his hands.

Thank you Andrew, and William. You write clear as a bell. Helping us understand what’s been happening.

What will the jurors do to get filled in on all this insanity? You know, they were there when Dr. Bao got caught reading from his notes.

How many things have entered their consciousness about this?

And, also. Tracy Martin can’t get himself into any trouble, ahead. Rodney King kept coming back into view. As he punched out other people. Who sez Tracy Martin can keep a grip on his temper?

Who sez Crump’s not in for this racial fakery business?

Who sez books about this case won’t be selling years from now?

Thank you, too, for having a blog that lets us comment.

Gandalf the Black | July 7, 2013 at 10:34 pm

Would you kindly explain for us why DLSR (prosecutor) was not made to leave the courtroom for the Richardson hearing? he was a material witness and he was allowed to hear Bao’s testimony. I thought witnesses had to be removed to prevent possible taint of testimony – precisely as GZ/ relatives were made to do.

When did you meet? How long? Where? What topics were discussed?

If nothing else, further impeachment of Bao was sure to ensue.

Thank you for the favor of any reply.

So, it seems to me that the best thing that could happen to the state is a mistrial.
Sure, they would still be stuck with the same evidence, or lack thereof, but I am sure they could do a better job than they did this time. It would also give the public more time to forget about this case and for things to diffuse.

So, any chance the state just throws something outrageous into closing arguments? Something that would either help their case or get a mistrial declared? Is there any legal ramifications for this? Something that would punish a lawyer attempting that tactic?

    franker01 in reply to fogflyer. | July 7, 2013 at 10:51 pm

    It would not surprise me at all if the jury convicts on Murder 2.

    If they fail to do that I think Manslaughter is very probable.

    Show Trials tend to go like this.

    History shows that when Politics overwhelm the Justice System then Justice is something like the run-over rabbit seen in the rear-view mirror.

      txantimedia in reply to franker01. | July 7, 2013 at 11:11 pm

      The justice system should be the bulwark against which politics fail. When it is not, chaos will ensue and then anarchy. That’s why one should be very careful what they wish for.

Another possible typo (since you don’t seem to mind us pointing them out):

“though he didn’t see gasps escaping from my client’s mouth as he was the one scaring towards him,”

Not quite sure as to the meaning of “scaring towards him”…

JEEZ ppl, leave the typos alone. even if AB doesn’t mind, I do. I read the comments for the Q&A, the banter, and the occasional argument and troll–not to be reminded of being whacked on the knuckles by a 3rd grade grammar teacher. I would prefer to get AB’s thoughts sooner rather than later, and if that means a typo or two, I’ll live.

Andrew obviously meant to type “screaming towards him”

Andrew :

Re: The Amazing Dr. Bao’s disappearing memory.

Is it feasible to review his testimony on previous cases where he has testified ?

Would that confirm or debunk his stance on his memory ?
What about getting the views of his subordinates ?

Thanks again, Andrew! Fantastic work… And thanks to the real professor for allowing you to contribute sound analyis (and biting humor) to this most bizzaro legal case.

    Fabi in reply to Fabi. | July 7, 2013 at 11:25 pm

    My use of real professor is in re: a certain not-so-real leathery professor who has cluttered the tubes with ugly bs and accusations that anyone believing GZ must be a racist.

    The Professor deserves special thanks for his patience if only because my sense of humor is somewhat more “out there” than his own–he’s cautioned me that I make myself less attractive to certain potential business opportunities by, well, being me. And he’s absolutely right, no question about it.

    Yesterday I got a call from a fellow I haven’t seen or heard from in more than 15 years. He’d borrowed a book from me, way back then, and wanted to return it, now that I’d popped back up on the radar screen. Our only prior relationship was that we’d worked together as Safety Officers at a couple of IDPA Nationals many years ago. Then life interrupted, I ended up overseas for a while, blah, blah, blah. I was impossible to find.

    But he never forgot that he’d borrowed that book. He read it, enjoyed it, then realized he didn’t know how to get it back to me. So he kept that book safe, for a year. And the next. And the one after that. And another dozen. Indeed, long enough that the book became a collector’s item, selling for well over $500 today. This is a guy who doesn’t make a lot of money, and gives much of that away to help shelter animals, etc.

    Yet yesterday he calle me up out of nowhere to get my mailing address so he could ship that book right back to me.

    I’d sooner be associated with 1,000 folks like him than any MSM “star” anyone could care to suggest.

    –Andrew, @LawSelfDefense

      Daiwa in reply to Andrew Branca. | July 8, 2013 at 1:37 am

      I’m more impressed with you with each passing day. Kudos and Thanks.

        Thanks–and don’t forget the best way to show appreciation 🙂

        —>http://is.gd/oRSUSc It’s what enables me to be here and not off doing real work.

        NRA/IDPA members should also use coupon code LOSD2-NRA for an additional 10% off and free shipping.

        –Andrew, @LawSelfDefense

Walker Evans | July 7, 2013 at 11:22 pm

The father of a good friend years back was a judge in downstate Illinois. When discussing an utterly absurd and patently illegal ruling by a “judge” in Chicago, he made a sarcastic comment that seems to apply in this case:

“If you put a second-rate lawyer in a black bathrobe he may be entitled to be called ‘Your Honor’, but never lose sight of the fact that he is still a second-rate lawyer in a black bathrobe!”

    Ragspierre in reply to Walker Evans. | July 8, 2013 at 9:21 am

    Except this judge is a highly qualified and well supported jurist in her state, certified to try murder cases.

    Let’s not get stupid.

BierceAmbrose | July 7, 2013 at 11:52 pm

“Can you imagine if poor George had ended up with a public defender?”

This thing feels like a bunch of people – judge, prosecutors, whoever is pulling their strings – not expecting an actual contest, and annoyed that they have one on their hands. I’m recalling Zimmerman’s several lawyers in the early days making a bunch of unforced errors. It must have looked like it was going to be easy. Now that the prosecution is playing professionals, their deficiencies are exposed.

This thing feels like some star chamber picked the target and the charge, then the rest is a show to formalize that outcome. The prosecutors seem taken a bit aback that the trial & their work in it actually matter. We saw the same thing in the OJ trial, where IMO the same kind of ritual got blown out by similarly unexpected opposition. The difference is, I think OJ was guilty, and the prosecution didn’t make their case.

Pity the poor innocent schmuck without the means to make a contest of a show trial. Pity also the victims and the rest of us, when these same prosecutors encounter a well heeled & determined guilty party.

    maestro in reply to BierceAmbrose. | July 8, 2013 at 3:10 am

    Well it’s a bit of a double edged sword, isn’t it? If the incident had not garnered the public attention and become such a political football =, Zimmerman likely would have never been charged in the first place. Once it became a big, national story, he could attract the high profile team needed for a proper defense

    MC Escher in reply to BierceAmbrose. | July 8, 2013 at 3:15 am

    It appears that the State is suffering from the same problem that plagued Trayvon Martin: Poor victim selection skills.

cjharrispretzer | July 8, 2013 at 12:08 am

Excellent post, and I look forward to the companion posts to follow.
Not to complain, Andrew, but I SO looked forward all weekend to a possible post on Dr. Shiping Bao’s testimony. I heard only parts of it (so was also hoping you’d post links to the full testimony cuz you didn’t on Friday and from all accounts it was quite amusing). I know I can go out and find links on my own, but I’ve gotten spoiled here at LI as my only go-to source for the Zimmerman trial coverage. Have you abandoned thoughts of doing this post?

    I appreciate that, but Bao was such a disaster that’s he’s not really relevant to the narrative any more. It would be more of a color piece.

    Which would be fun to write except, this weekend I had to take son to camp, get on ladder and change bulbs in staircase, mow lawn for first time in a long while, get haircut for first time in a long while, remember I have a bunch of minor children running around, and spend much of Sunday writing today’s post for this blog. Oh, and ship out a metric ton-o-books.

    So, Bao must wait a bit longer.

    Of course, anyone can just listen to his testimony. Just click on one of the video links I embedded that day, and you’ll like find Bao roaming around there somewhere.

    –Andrew, @LawSelfDefense

      legacyrepublican in reply to Andrew Branca. | July 8, 2013 at 1:00 am

      Oh great learned esquire, I hope, when you get a chance after the “not guilty” verdict by reason of self defense, to hear from you an analysis of what happens to Jorge Meza’s job going into the future.

      It would seem to me that this trial may end his career as a LEO.

      Plus, what do you think will happen to Seino? Will he get back into homicide or is his career over too?

      Speaking of which, what a powerful narrative to keep asking LEOs about their career choices and then to have GZ’s uncle show up and the dots to be connected without even asking the question. Beautiful job by MOM.

      Andrew, there is something about Bao’s testimony that really sticks out. It is his fear of committing perjury. I smell something that is very fishy. I assume that Bao is an honest person, and his fears are genuine. That might mean that his discussion with BDLR a few days prior to trial might have been to put pressure on him as to how he answers questions.

      Maybe there is more to Bao than meets the eye.

      BTW I am also heading in the same direction where Rachel Jeantel is concerned. She did not want to testify. There must be a good reason for her reluctance.

        Uncle Samuel in reply to Aussie. | July 8, 2013 at 3:23 am

        Aussie, I agree.

        Dr. Bao was trying to be hyper-conscientious, not relying on memory, just what was written in official notes.

        Bao brought up the research evidence on the effect drugs would have on TM’s mental state and behavior.

        Drugs, coupled with injuries from fights, and any psychological, physical and sexual trauma in childhood, could have created paranoid, unstable, reactive, irrational mental state and aggressive behavior.

        Remember, Sybrina Fulton sent TM away because of his behavior.

        Yep.

        –Andrew, @LawSelfDefense

      cjharrispretzer in reply to Andrew Branca. | July 8, 2013 at 1:55 am

      I can appreciate that, Andrew. I have two little boys myself.
      But just for the record, I saw maybe only one clip of his testimony, if that, on your Friday posts. And like I said, i had been waiting for your post to view his testimony, figuring that’s when you would post all of the links along with your insightful commentary. But no worries, I will hop on to YouTube and search for it.

      Harperman in reply to Andrew Branca. | July 8, 2013 at 3:21 am

      Andrew,
      You have put so much into this. It is good that you remind people that you have a family and a life beyond the GZ trial.
      If you are ever in Arizona I would love to meet you and take you out for a beer after a day on the shooting range.
      You have already responded via e-mail to my good friend and shooting student Langer. She can tell you how to contact me.

        I would love to!

        I’ve ridden over much of the US on my bike, but the southwest is an area I’ve yet to get to. It’s n the list!

        🙂

        –Andrew, @LawSelfDefense

          Tertullus in reply to Andrew Branca. | July 8, 2013 at 8:14 am

          I make the same invitation for the coast of North Carolina. Have a beer and a great seafood dinner on me.

          A buddy of mine who works down in VA rents a play on the coast of NC every year for a week or so, I keep meaning to join him down there. Sounds beautiful, and peaceful (in the off-season, which is when he goes).

          –Andrew, @LawSelfDefense

Oh dear… just saw Drudge’s headline. While it’s very accurate re Abrams’ article, the way it’s captioned, using the only picture in existence ( during trial) of a smiling Zimmerman, its effect
on the TM crowd is bound to be inflammatory.

‘…its effect on the TM crowd is bound to be inflammatory.’

You say that as if it were a bad thing! lol

    graytonb in reply to Fabi. | July 8, 2013 at 12:47 am

    I am going to take that as if you were speaking with ‘sarc/snark’ marks…. because in all seriousness, there is enough tension surrounding the case already. Surely the last thing the area needs is gratuitous stirring up of unhealthy impulses. When Zimmerman is hopefully acquitted, some folks are going to be looking for trouble anyway.

      Fabi in reply to graytonb. | July 8, 2013 at 1:06 am

      Being worried about other people’s possible ‘unhealthy impulses’ is not my problem. Actually, the other people need to be responsible for their unhealthy impulses; as to succumb to those fears is to succumb to terrorism.

      Sic semper tyrannis.

    brett_mcs in reply to Fabi. | July 8, 2013 at 4:31 am

    My one concern about the all-female jury is that they may be so concerned about community reaction that they vote guilty “for the children”. Hopefully there is at least one ‘hard-headed woman’ on that jury. For me I would see the city burn to the ground rather than allow such considerations to affect my judgement.

Personally I could not not believe that the judge did not acquit on both charges.
Well let me rephrase that. I could not believe that a FAIR judge would not acquit.
It has been painfully obvious to any objective observer that this judge has never been either objective or fair.
It is my personal opinion that this judge has “marching orders” which she is trying to follow to the best of her ability. I cannot prove that. It is only an opinion. Still, I don’t believe that I am the only person who holds that opinion.
So let me begin at what for me was the beginning. Like most I heard of this case through the general media, which I instinctively distrust.
It was a possible self defense shooting, a subject which I as a gun carrier usually follow.
I tried to keep an open mind and reminded people on the various news threads which I was commenting on that we had little information and it was not time to rush to judgement. Zimmerman may have been innocent or guilty. I didn’t have enough information and neither did the people rushing to condemn him or exonerate him. Was it self defense or was it something else? I didn’t know. I simply didn’t have enough information.
What I did see was the immediate spin. I saw photos of a supposed 17 year old that looked like a 12 year old. I saw the usual race baiters jumping in. Having seen this before in self defense cases I really began to question what I was seeing in the media. That is when I really became interested and began researching everything I could find on the case no matter which side presented it.
It soon became obvious to me that GZ was being railroaded and I contributed to his defense fund just as I would hope people would contribute to mine were I in the same circumstance. Was my opinion colored because I also carry a gun? To a certain extent yes it was. But I always tried to maintain an open mind.
What I have seen in this trial, speaking purely objectively, is that the prosecution has not proven anything near, let alone approaching, the legal requirement of a reasonable doubt.
The prosecution’s witnesses have consistently confirmed GZ’s relation of events as far as they can be proved with the exception of those whose testimony can be either proved to be compromised or those who obviously have an agenda.
Even discounting the things the jury was not allowed to see about Trayvon’s history and character this obviously should have been an automatic acquittal.
Do I have questions that have not been answered? Yes I do. I think we all do. That is not the question. The question is has the state proved their case beyond a reasonable doubt? No they have not.
In actuality I have to say that I admire George’s forbearance. Given my understudying of the facts we know I would have have opened fire a long time before he did.
This is,of course, only my personal opinion.

    profshadow in reply to Harperman. | July 8, 2013 at 8:20 am

    I just had a random “wonder” … can a judge be called as a witness in an appeal?
    Would be interesting to get the judge under oath and as a few relevant questions…

      It’s far from unheard of for an appellate court to ask questions of a trial judge when they’re trying to figure out what the hell happened. I’ve never heard of a trial judge being “called” in the sense of subject to a subpoena, but generally speaking the trial judges answer up the line to the higher appellate courts, so . . . .

      –Andrew, @LawSelfDefense

[…] Why Zimmerman’s Motion for Acquittal Should Have Been Granted […]

Another thing I would like to add to my last.
The prosecution is trying to make much of Zimmerman’s taking classes that related to self defensive law.
They ignore the fact that he has obviously never taken classes in self defensive combat shooting. This is evidenced by the fact that he only fired a single round. Anyone trained in self defensive shooting knows that you shoot and keep shooting until the threat is neutralized. Zimmerman did not do this. He fired a single round and stopped. A trained shooter, under those circumstances, would have emptied the magazine.

    rantbot in reply to Harperman. | July 8, 2013 at 9:34 am

    GZ DID shoot until the threat was neutralized. It just took one shot. TM was no longer pounding GZ’s head into the pavement after that. At that point, GZ can’t shoot again; not if we want to call it defense.

VetHusbandFather | July 8, 2013 at 3:58 am

Here are some thoughts on the directed acquittal from a totally non-legal perspective.

Basically I do not feel that the state came up with any sort of coherent narrative on how the events unfolded that night that could have resulted in a manslaughter or murder. Sure all the pieces of the case were there, the attempt to establish a depraved mind and ill-will, the attempt to make GZ appear as an aggressor, the minimization of GZs injuries, etc. But none of these elements were pulled together and packaged to give us a clear picture of what happened that night. The total lack of a coherent explaination leaves me with all sorts of questions about how things went down. (E.g. what happened between GZ getting out of the car and the start of the confrontation? If TM didn’t injure GZ, where did the injuries come from?) All of these questions should add up to at least a reasonable doubt to most people. The defense in the other hand provided a very clear account of rhe whole evening, with no gaps in time a no contradictions to the evidence presented thus far. The prosecution hasn’t given me anything to hang my hat on (so to speak) , instead they havetried to punch a few holes in GZs story and then expected me to fill in the blanks to make their narrative fit the evidence.

“The Professor deserves special thanks for his patience if only because my sense of humor is somewhat more “out there” than his own–he’s cautioned me that I make myself less attractive to certain potential business opportunities by, well, being me. And he’s absolutely right, no question about it.”

I get the same sort of criticism from my wife and kids. And it is true. I AM arrogant. And sarcastic to a fault. Heh. But I earned it the hard way. I know my stuff (engineering). Three years in an outlaw motorcycle gang didn’t hurt either.

[…] Legal Insurrection has a post outlining why the judge should have granted Zimmerman’s lawyers their request for the case to be dismissed. […]

I’m pretty convinced the judge is giving the preferential treatment to the state so that she personally doesn’t get any backlash from the (not guilty)verdict. As if to say “I did what I could, so don’t take it out on me”.

    Bruce Hayden in reply to Alan Cain. | July 8, 2013 at 9:24 am

    The thing that must be remembered is that the jury still gets to speak. What this means to the judge is that they can do her dirty work for her. If they don’t convict, then she can probably dismiss in response to a motion for JNOV, or get reversed on appeal (and maybe even with prejudice). This is one reason that a lot of judges hesitate on granting the equivalent of this motion to acquit – with a good defense attorney (who files a motion for JNOV upon a guilty verdict), they can later set aside a guilty verdict, but don’t have to go on record dismissing the case before the jury gets their chance. Most often, I would suggest, if a prosecution case is weak enough to be a viable candidate for dismissal before the jury gets their final instructions, then they case is likely to lose with the jury. This is probably even more of a factor here, given how politicized it has been from almost the first.

What would have happened if the defense asked Shiping Bao if toxicology tests were run on the blood sample taken from TM?

During the cross examination, West asked Bao several questions about standard autopsy procedures – including blood samples. BDLR and Nelson became anxious while West was talking about the blood draw. Did the pretrial ruling prevent West from asking Bao about standard procedures for analyzing the blood drawn? I am curious if there was a way the defense could hint that TM tested positive for Marijuana. What would have happened if the defense violated the pretrial ruling?

    There’s an in limine order in place by Judge Nelson to prohibit any discussion of tox results of Trayvon Martin. The blood draw was for toxicology purposes. So, everyone was tip-toeing around to avoid stepping over the line.

    By “everyone” I mean the defense, of course. The State is apparently free to just make stuff up.

    –Andrew, @LawSelfDefense

      Marco100 in reply to Andrew Branca. | July 8, 2013 at 7:46 am

      I may be non-objective at this point but I seriously question Judge Nelson’s judicial competence esp. after the Bao disaster.

      Did she seriously say, on the record, that she would order Bao’s notes (from which he was reading when he testified) “destroyed” at the end of the trial???

      She was unconsciously going into cover-up mode by doing that. For two reasons: 1) the notes had to be preserved as an exhibit in the event of an appeal. That’s just a boner/blunder of a trial error. However no. 2) is the clincher: THE COURT DOESN’T HAVE ANY RIGHT AT ALL TO ORDER THE DESTRUCTION OF A WITNESS’S PRIVATE NOTES. Even IF she doesn’t believe they need to be marked as an exhibit and preserved to prevent the WITNESS from destroying them–THE TRIAL JUDGE HAS ABSOLUTELY RIGHT to order another person’s private property destroyed (certainly not without some very formalized due process hearing to explain what possible “interest of justice” might exist in destroying a witness’s trial notes.)

      So, her order to destroy the notes (albeit later reversed at West’s request), aside from being a mere trial order, is clear evidence of Judge Nelson’s unstated desire to engage in an unethical “cover up” of her bad judicial decision making in this trial. For her own personal protection, NOT for the interests of justice. She didn’t want anyone looking at these notes post-trial to then question what she did in the courtroom.

      Completely disgusting and makes anyone lawyer or not want to vomit.

      Uncle Samuel in reply to Andrew Branca. | July 8, 2013 at 8:49 am

      This is the single most egregious order and obstruction of evidence by this Judge and her FL (and DC) prosecution/justice department accomplices.

      A DRUG TEST is necessary evidence to determine the motive and irrational aggression of Trayvon Martin.

The Zimmerman prosecutors are probably behaving in this case exactly the way the behave in every other case they litigate, except perhaps “more so,” do to the high profile of the case. That’s why the conduct seems so brazen–it’s simply S.O.P. for them. That’s why they could even dream of putting up witnesses like Rao and Bao in the first place.

Does anyone seriously think this trial is the first time Rao and Bao put both feet in their mouths? No, of course not. THIS KIND OF CLUSTER-CLUCK (OR SOMETHING OF A SIMILAR NATURE) HAPPENS EVERY SINGLE TIME THEY TESTIFY.

It just passes unnoticed or unremarked or no one cares, even the defense attorneys. Someone has mentioned public defenders. Well p.d.’s do most of the criminal defense work in the local trial courts, because most criminal defendants are indigent. Most cases get pled out. The p.d.’s have to see their opposing number prosecutors all day every day over hundreds and thousands of cases. They have no stake in it and don’t want to make waves. They will never say “Gee this person is so incompetent let’s do something about it” because the system will stamp them down for trying.

This is not to say p.d.s are unethical, at least not intentionally. Some of them work very very hard. (Unfortunately many of them have political leanings where they would have automatically assumed Zimmerman guilty as charged and pressured him mightily to cop a plea.) But you don’t bite the hand that feeds you and the hand that feeds p.d.’s is the same hand that feeds the state’s prosecutors. Big Brutha that is.

Prosecutors frequently try to play “dirty tricks” like Mantei did by distorting and making up trial evidence beyond legitimate advocacy.

You see most of the time they have an ace in the hole: The prosecutors know that 99%+ of the time if their trickery nets them an unfair conviction, the defendant simply won’t have the financial wherewithal to effectively appeal it. And, even if there is an appeal, the defense might catch a hostile appellate panel that is looking for reasons to reject the appeal. Further, appellate courts will bend over backwards to try to “remand” a case for a re-trial rather than enter an acquittal against a jury verdict. Sooner or later the defense’s financial and emotional resources will be exhausted.

Bottom line is if BDLR, Mantei, et al were any good at all given their level of experience they’d be on the defense side of the table where they’d be making some real money (if they had mad skillz). I hate to be cynical but why wouldn’t they be private defense counsels making possibly 5x – 10x their public employee salaries + bennies, if they were really the all-stars they probably fantasize of themselves as?

cloudbuster | July 8, 2013 at 7:42 am

“Most of these court cases are gratifyingly brief and written in a style easily accessible to non-lawyers.”

It’s a given that if a legal document or opinion is written in a style not accessible to non-lawyers, it means the lawyers are trying to hide something.

vermontaigne | July 8, 2013 at 8:25 am

So, since a lot of you want to talk about Dr. Bao’s testimony, and Andrew doesn’t think that he’ll have time to do that little sideshow justice, I’m just going to throw out my own non-expert observations.

The Reading from Notes Bust

West noticed that Bao was reading directly from notes, on the issue of memory and testimony. For me, the fascinating ‘tell’ was that when West was permitted (in this instance) to approach him to see what he was reading off of, Bao two or three times insisted without any prompting that nobody else had seen these personal notes. The effect was, Q: “Are you reading?” A: “Nobody else has seen my personal notes!”

Memory, Fact and Opinion

Bao had no memory of the Trayvon Martin autopsy, which isn’t surprising, considering his testimony regarding the kind of schedule he keeps. Cross-examination showed that there is a distinct laxity in his office regarding the supervision of underlings and familiarity with their protocols. At one point, Bao was forced to say that someone who had stored evidence in a way likely to degrade it, by placing it in plastic bags, would be fired, the implication being that since nobody had been fired, the evidence must have been collected and stored properly. More troubling still were his evasions regarding ‘fact’ and ‘opinion.’ While he admitted to a July 4 meeting with BDLR, he could express no ballpark figure of how long that meeting had gone on or whether or not he and the prosecution counsel had discussed his decision to testify, contrary to his deposition months before, that Trayvon Martin may have been alive from 1-10 minutes after being shot through the heart, rather than 1-3. While it seems possible that one’s memory might be hazy (or non-existent, as he claimed) regarding just another autopsy, the idea that one would not recall the substance of a conversation from the day before, because it wasn’t written down, on a matter of significant importance to which one is testifying at present, was simply unbelievable. Only by repeating over and over that he was looking for a ‘guesstimate’ ballpark figure could West get the witness to state that the meeting might have lasted in the vicinity of 40 minutes, and that he did not discuss with BDLR the issue of how long Trayvon might have lived (in considerable pain, as he added without prompting)after being shot, but that they would have discussed whether or not Trayvon’s THC level may have been significant enough to alter his mental state and thus his actions. The effect of the testimony was something like, Q: “Did you pick up more cat food yesterday?” A: “That would be opinion. Let me consult my notes.”

The Miracle Case from 3 Weeks Prior

Bao was now testifying that Trayvon may have lived as long as 10 minutes from the time he was shot through his heart. To explain the discrepancy, he alluded to another case, from a neighboring jurisdiction, where a father shot his son, and according to the medical examiner with whom he discussed the case, the son showed some kind of sign of life 10 minutes later. They know the timeline, because the father immediately phoned 911 and the EMTs saw this sign of life 10 minutes later. Bao was very enthusiastic about this case, because he had it in notes, which according to his strange epistemology regarding the distinction between fact and opinion, meant that this account somehow had more evidential grounding than others. We do not know whether the other ME with whom he discussed that case was reading off of notes at the time he conversed with Bao, who made his notes, nor whether the EMTs made contemporaneous notes on which the other ME might have relied. We do not know of the name of the victim or anything else about the case, except that Dr. Bao is very enthusiastic about its probative value and that the circumstances of his becoming acquainted with this “very rare!” case are extraordinarily serendipitous. Bao further testified that he had not notified the court or anyone connected in an official capacity with the Zimmerman case regarding the two major changes in his testimony from the time of his deposition to now. Still further, Bao indicated that as regards ‘opinions,’ rather than facts, he might change his hourly, which made us wonder whether he oughtn’t be cross-examined hourly regarding his opinions, just in case the ones entered into testimony were outliers.

Bao managed to work in the testimony that this phantom case of the ten minutes survival was a “real case of self-defense” in implied contrast to the Zimmerman one, which, because it was spoken by Bao, must be fact rather than opinion—never mind that that case has not been adjudicated.

Some people are defending Bao by saying that he needed to rely on reading from notes, which isn’t permitted except by permission from the judge, rather than just referring to them, because English is not his first language. After the Richardson hearing, he seemed to understand well enough, and respond well enough. The passage at which West busted Bao for reading, oddly, was on the subject of memory and its falsification, as a justification for relying on the ‘facts’ embedded in writing, as opposed to unaided memory. In the very depressing #Zimmerman Twitter thread, you’ll see much nonsense following the title, “FACT:”. Bao’s repeated and elaborated, ridiculous and continual disquisition on the nature of evidence was nothing but pseudo-scientific excuse making for trying to dodge the defense’s questions. To allow any witness to posit his own rules of evidence and testimony in a court of law is liable to create the kind of absurdity we witnessed in Bao’s testimony.

I think Bao’s career as an expert witness is over, so I’m skeptical that this worked out to his advantage, but perhaps we’ll find out, someday.

So, have at it.

    vermontaigne in reply to vermontaigne. | July 8, 2013 at 8:37 am

    Oh, I forgot one major thing. Bao testified that it was his opinion Martin would have been immediately and completely paralyzed by the shot to the heart, thus suggesting that he could not have, in accordance with Zimmerman’s statements sat up and then said, “You got me” or “You got it.” On the other hand, the reason that the 10-minutes survivor of a heart shot was known to have been still alive was that he made some kind of sound of pain at about the 10-minute mark, apparently without any use of his muscular faculties. So.

There was never a point in a JOA hearing, because a JOG has already been determined, and they’ll get there by any means necessary.

I recommend everyone go check out Jeralyn at Talk Left this morning on why the judge should allow TM’s toxicology report into evidence. There is one case directly on point from 2009 in Florida where the defendant in State v. Arias rec’d a new trial b/c it was excluded from first trial. She claims “The defense has a plausible argument it is admissible not as character evidence but to refute the state’s theory of intent”.
http://goo.gl/moUvf

[…] Why Zimmerman’s Motion for Acquittal Should Have Been Granted […]

the reason the girlfriend did not want to testify is because her entire testimony is false. Why? There is no way, as you can now witness, that her attitude and street culture would have encouraged Trayvon to run away.

In fact, after dealing with her type for a generation, I can tell you with certainty that she encouraged Trayvon to go back and teach that cracker to respect him. As she said tellingly in her testimony Trayvon was smart enough not to jump an armed victim, everybody knows not to do that. Not that it is wrong in her culture to attack an unarmed victim, as we’ve seen over and over and over and over.

How the MSM separates this attack from the hundreds of “knock out games” and street flash mobs and street robberies ongoing in our society all perpetrated by young blacks is beyond me.

In a sentence Trayvon Martin decided to “thug up” on what he thought was an easy target and got smoked for his efforts.

The end.

[…] Trail Going So Good For Defense They Asked For An Acquittal: I doubt the judge really was going to grant it anyway. No one in their right mind would want to […]

Gee!

Why do the jurors keep saying “No, your Honor,” even after being instructed to just raise their hands if the answer is “Yes” ?

BDR keeps playing GZ’s voice, and there’s two tiny little details I keep noticing.

1- GZ does not have a deep, low pitched voice.
2- He does not sound angry.

[…] This: Why Zimmerman’s Motion for Acquittal Should Have Been Granted […]

[…] Insurrection posts a thorough analysis of the oral motion for a judgment of acquittal made after the State closed their case against […]

[…] objective would, that the State’s case is shockingly inadequate, here, here, and especially here. Why then, is Zimmerman being tried? Conspiracy theories are rife, and I hate conspiracy theories, […]

Can someone legal please explain why she has refused the defense’s requests to approach the bench on numerous occasions, but when the prosecution makes the same request it’s immediately and unequivocally honored? How is that allowed?

    Exiliado in reply to MegK. | July 8, 2013 at 1:30 pm

    She is biased. She is not supposed to.

    We hope she is disbarred. We, the citizens, cannot afford a judge that’s so obviously partial.

[…] Why Zimmerman’s Motion for Acquittal Should Have Been Granted […]

[…] in Guyana removed in alleged sex-for-visas swindle What took so long? Okay, stupid question Why Zimmerman’s Motion for Acquittal Should Have Been Granted The prosecution has been incompetent and agenda-driven from the start Spitzer’s decision to […]

[…] Branca argues that the defense’s motion to acquit should have been granted. Given the weak case presented by the prosecution, all the defense now has to do is avoid errors […]

[…] Branca argues that the defense’s motion to acquit should have been granted. Given the weak case presented by the prosecution, all the defense now has to do is avoid errors […]

[…] Branca argues that the defense’s motion to acquit should have been granted. Given the weak case presented by the prosecution, all the defense now has to do is avoid errors […]

ProfessionalSpectator | July 8, 2013 at 11:44 pm

I’m still waiting for the follow-up discussing Richard Mantei’s response to the Motion for JOA. The fact that he sincerely argued that “pointing a gun at a person and pulling the trigger” could in and of itself be direct evidence of ill-will and hatred is the most absurd notion I’ve heard argued in court in quite some time. He, more than anyone else (and that’s saying a lot), deserves public ridicule for advancing such a disgraceful theory. The judge should have admonished him.

JoeThePimpernel | July 9, 2013 at 9:46 am

The feral government must find a way to disarm law-abiding citizens and make self-defense a crime. That’s all the Zimmerman case was ever about.

I’m going to disagree with Branca on this one a bit. I believe that GZ saying “Fu(king Punks” and “these @$$holes always get away” is not circumstantial evidence of the ill-will or spite necessary for a murder 2 charge, it is direct evidence. It is weak evidence, but I don’t think that the tone that it was said in changes it from direct to circumstantial evidence.

I say this based on the fact that we do not yet have the ability to read minds, therefore, our best evidence about what is actually in the mind of someone comes from their expressions – specifically verbal expressions. And these are verbal expressions that show what was on GZ’s mind as he watched TM. And profane verbal expressions show ill-will and spite. These denotations CAN be negated by the tone with which the words are said, but that must be interpreted by a fact finder – and in this case the ultimate fact finder is the jury.

I still think GZ is innocent of murder2, as I think the fact finder would ultimately find that these expressions were NOT actually expressions of spite or hatred – but I do think that is an issue for the jury.

[…] In presiding over the trial of George Zimmerman, who is accused of murdering Trayvon Martin, Judge Debra Nelson has made some awful rulings – none worse than failing to direct a verdict of acquittal on the preposterous second-degree “depraved mind” murder charge. The state’s evidence that Zimmerman had the necessary criminal intent is non-existent, much less sufficient to meet the “beyond a reasonable doubt” standard. Compelling evidence, moreover, establishes that Zimmerman acted in self-defense, a claim the state has not come close to refuting. (See Andrew Branca’s comprehensive summary, here.) […]

[…] Why Zimmerman’s Motion for Acquittal Should Have Been Granted […]

[…] Why Zimmerman’s Motion for Acquittal Should Have Been Granted […]

[…] Why Zimmerman’s Motion for Acquittal Should Have Been Granted […]

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