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FINAL THOUGHTS ON THE GEORGE ZIMMERMAN TRIAL

July 15, 2013

From the start, I have made no secret of my opinion of the George Zimmerman prosecution. When the State filed formal criminal charges against Mr. Zimmerman, I explained the legal strength of Mr. Zimmerman's case. I also described the probable cause affidavit, which alleged Second Degree Murder, as woefully inadequate. The affidavit was not only short on evidence, but it also omitted material facts, which suggested Mr. Zimmerman's immunity under the law. Finally, during the trial itself, I wrote: This prosecution is less about justice, finding the truth, and adherence to the rule of law, than it is about offering a sacrificial lamb at the table of political expediency.

Of course, it is undeniably true that the death of Trayvon Martin was a terrible tragedy. He was a young man in the prime of his youth, who was doing nothing wrong when George Zimmerman pulled over his car and called the police. Let me say forthrightly, that I believe that Mr. Zimmerman acted with profound irresponsibility on the night of the shooting. That said, the prosecution was well aware that it had neither the facts nor the law to prove Mr. Zimmerman's guilt.

As attorney Don West said, "the prosecution of George Zimmerman was disgraceful." It was, indeed. Let me explain why.

The stability of our society, as well as the protection of our individual liberty, depends upon the fair and even application of the rule of law. In our country, we do not prosecute individuals based upon emotion, or feelings of rage, or on assumptions; we prosecute individuals based upon evidence, in the form of testimony and exhibits. Our system is premised upon the realization that no human government can fulfill the promise of true, absolute justice (what some would call "divine justice"). Thus, what we strive for is what is in our power: the orderly, logical application of a system of law.

Foundational to our system of law is the recognition that all men and women are presumed innocent, unless and until they are proven guilty, beyond and to the exclusion of every reasonable doubt. As a starting premise, we recognize that all men and women deserve a fair trial, which requires that the government share with the Defense all of the relevant evidence before trial, particularly if the evidence is exculpatory. Lastly, we depend upon the government to faithfully and evenly apply the law to all individuals, even if the law favors the rights of the accused.

Under no circumstances can our society, or our individual liberties, survive in an environment where the government selectively applies these immutable principles of law. As Saint Thomas More says in the masterpiece, A Man For All Seasons, "This country is planted thick with laws, coast to coast; man's laws, not God's. And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

To be sure, it is not always popular to provide the "Devil" benefit of the law. John Adams didn't ingratiate himself with the people of Boston when he defended the British soldiers accused of massacring a crowd of unarmed civilians in 1770. Nor did the character Atticus Finch, in Harper Lee's To Kill a Mockingbird, take a popular position when he defended Tom Robinson of raping a white woman in the segregated South. In both instances, however, these men--both fictional and nonfictional--not only defended their clients, but they also defended the rule of law from the angry emotions of the mob.

Regardless of whether anyone disagrees with the policy, the law in the State of Florida is clear and settled: the State may not prosecute anyone for Murder or Manslaughter (or any other violent offense), unless the State has probable cause to believe that the killing was not committed through the use of justifiable deadly force. That is the law; the application of which preserves our collective liberty.

The original investigators, as well as the State Attorneys Office of the 18th Judicial Circuit, knew this well when they initially investigated the case. They were aware that Mr. Zimmerman was invoking self-defense from the start, even before the arrival of police. They were aware of Mr. Zimmerman's injuries, which included an apparent broken nose, lacerations, abrasions, and bumps on his head. They were aware that an eyewitness had seen Trayvon Martin "beating up" George Zimmerman, "MMA style," "ground and pounding" Mr. Zimmerman's head. They were aware that the same eyewitness heard Mr. Zimmerman crying for help. They were aware that the muzzle of Mr. Zimmerman's gun had made contact with Mr. Martin's sweatshirt, but that it didn't make contact with Mr. Martin's body, which indicated that Mr. Martin was likely on-top of Mr. Zimmerman at the time of the shooting. They were aware that Mr. Martin's body manifested no bruising or cuts or abrasions that would indicate Mr. Zimmerman had struck Mr. Martin prior to the shooting.

In short, the original investigators were aware that they had significant and compelling evidence corroborating Mr. Zimmerman's statements.

In other words, not only was there not probable cause to disbelieve Mr. Zimmerman's version of events, but there was probable cause to believe that Mr. Zimmerman's actions complied with Florida Statute.

Indeed, under Florida law, even the individual provoking the fight is immune from prosecution, if, at the time the provocateur acted in self-defense, the provocateur had exhausted all means of escape. As we know, an eyewitness saw Mr. Martin pinning Mr. Zimmerman down "MMA style," shortly before the shooting. What's more, in corroboration of Mr. Zimmerman's statement, law enforcement observed that Mr. Zimmerman's back was soaking wet and covered in grass. The gunshot itself was close-range, and, as already stated, was consistent with Mr. Martin having been on top of Mr. Zimmerman. In such a position, there simply was no avenue of escape.

That said, there was no evidence Mr. Zimmerman had provoked the fight in the first place, either as a matter of law or as a matter of fact. It is a logical fallacy to presume that because Mr. Zimmerman got out of his car, he necessarily accosted Mr. Martin. Applying the foundational legal premise that all men and women are presumed innocent, the original investigators were not willing to presume Mr. Zimmerman's guilt in the absence of evidence.

Unfortunately, the organized political pressure of special interest groups prevailed. State Attorney Angela Corey, as well as her assistants Bernie de la Rionda, John Guy, and Richard Mantei, willingly "cut a great road through the law, to get at the Devil." In their probable cause affidavit, they omitted any reference to Mr. Zimmerman's injuries, or to eyewitness statements that Mr. Martin was "ground and pounding" Mr. Zimmerman. Essentially, they ignored Mr. Zimmerman's constitutional right to a presumption of innocence, and instead chose to prosecute Mr. Zimmerman on "what-if's" and speculative hypotheticals.

They accused Mr. Zimmerman of Second Degree Murder, alleging that he acted with "ill will, hatred, spite, or an evil intent," based entirely upon Mr. Zimmerman's statements: "these assholes always get away" and "fucking punks." However, as the prosecution was well aware, these facts fell far short of Second Degree Murder under Florida law. As the 4th DCA recently stated:

"Florida courts have held that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. 'Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim.' Moreover, 'hatred, spite, evil intent, or ill will usually require more than an instant to develop.' While the jury may reasonably reject the theory of self-defense in a case involving a defendant's impulsive overreaction to a victim's attack, such a case warrants a conviction for manslaughter, not second-degree murder."

Logically, if saying the words "these assholes" and "fucking punks" converts a Manslaughter into Second Degree Murder, then there is no meaningful distinction between the two crimes. One would rightfully imagine that most manslaughters, at least those that occur in the context of physical confrontations, involve the use of colorful language. For the prosecution, however, neither the law nor logic was ever much of an impediment.

Having suspended the presumption of innocence, and having disregarded controlling authority on the requirements for Second Degree Murder, the prosecution proceeded to depart from standard investigative procedures. Desperate for a witness who could provide testimony that George Zimmerman provoked Trayvon Martin, the State accepted the assistance of the Martin family legal team, who delivered Rachel Jeantel. Outrageously, the prosecution interviewed Ms. Jeantel in the presence of Mr. Martin's mother. It is only natural to assume that the State took this unethical and bizarre approach to ensure that Ms. Jeantel stuck to the party line. Nevertheless, she lied under oath. Of course, that was not a worry for the State. Far from establishing the State's desired narrative, she testified at trial that Mr. Martin called Mr. Zimmerman a "crazy ass cracker" and used the "N-word" to describe Mr. Zimmerman. Still, not a worry for the State. Happy that she had finally added a new twist to her story, in which she now claimed--for the first time--that Mr. Martin said the words "get off, get off," the prosecution called her to the stand.

In addition to ignoring the presumption of innocence, disregarding controlling legal authority, and departing from standard investigative procedures, the State also abandoned its lawful discovery obligations. The Defense didn't learn about a series of photographs discovered on Mr. Martin's phone, which included images of a handgun, marijuana plants, and Mr. Martin bowing smoke, until a whistleblower stepped forward (who, surprise-surprise, has since been fired). What's more, the State significantly and unjustifiably delayed in disclosing to the Defense information pertaining to text-messages and videos, which included references and images of Trayvon Martin participating in organized street fights. In one of the videos, two of Mr. Martin's friends beat up a homeless man, with the implication that Mr. Martin videoed the assault. Regardless of their admissibility, these text messages, videos, and images were clearly discoverable. The Defense has filed a Motion for Sanctions, which the Court has yet to rule on.

During trial, the State all but admitted it had no case against Mr. Zimmerman. John Guy repeatedly asked the jury to "use their heart" and convict Mr. Zimmerman; presumably because if they "used their heads," they'd have no choice but to acquit. Something is wrong with the system when a prosecutor doesn't appeal to the evidence, but rather appeals to feelings and emotion.

For all of these reasons, the prosecution of George Zimmerman was disgraceful.

To be sure, the context of this case illustrates part of the ongoing struggle of being black in America. Trayvon Martin was doing nothing more than walking home with Skittles and iced-tea, when George Zimmerman called the police. No doubt, countless black parents have-- and will--counsel their children to be extra vigilant and cautious, for fear that their children will experience the indignity of unwarranted suspicion. That is an unfortunate, unjust reality in today's society, despite our substantial progress toward racial equality.

However, no one should forget the undeniable fact that George Zimmerman was living in a mixed race community, plagued by crime. From the testimony at trial, it appears that George Zimmerman was a concerned neighbor, who was on the lookout for anyone--anyone--who appeared out of place. And in a mixed race community, the color of Mr. Martin's skin surely would not have made him appear out of place, in and of itself. While people may reasonably speculate that Mr. Martin was unfairly racially profiled, that speculation remains just that: speculation. In this country, we are not supposed to convict people in a court of law based upon speculation alone. What's more, Mr. Zimmerman wasn't accused of racial profiling; he was accused of murder.

It is unfortunate that so many people misunderstand the core tenet of our criminal justice system: that all men and women are presumed innocent until the weight of the evidence removes any and all reasonable doubt. Is it possible that George Zimmerman attacked Trayvon Martin? Sure, it's possible. Is there any evidence of it? Very little, if at all. Not even Rachel Jeantel could testify to that. If there is no evidence, you must presume innocence. Anything less is a violation of the law.

On the other hand, there is evidence that Trayvon Martin attacked George Zimmerman. The sophomoric response from many supporters of the prosecution, is that Mr. Zimmerman deserved to be attacked. Apparently, in the minds of many people, it is perfectly acceptable for a person to physically attack a stranger that is following another person. But let's think that through. Does the law recognize a right to use force against another person, when the other person hasn't actually made physical contact or pulled a weapon? No, it does not. It certainly doesn't allow for someone in that scenario to break a person's nose and then "ground and pound" the person's head into the cement.

And let's flip the scenario. Imagine that instead of Trayvon Martin walking home, it was a young white man walking home. Imagine that a grown black man, acting as a neighborhood watchman, found the young white man suspicious, and called the police. Imagine that the young white man called the neighborhood watchman the "N-word," while speaking with his friend on the telephone. Imagine that the young white man, enraged that a black man was following him, attacked the black man. Imagine, moreover, that the young white man not only had a history of fighting, but that his friends solicited fighting lessons from him, presumably because he was so experienced at fighting.

Imagine that a nearby neighbor testified that the young white man was on top of the black man, "ground and pounding" the man's head and "beating him up." Imagine that after the shooting, the black man, bloodied and beaten, told the very first person to arrive on the scene: "He attacked me and I shot him. I was calling for help, but no one came. I've already called the police." Imagine, that when the police interviewed him, the black man said the words "thank God," when told that there was a video of the altercation.

Would anyone expect the case to be prosecuted under those circumstances? And if the case was prosecuted under those circumstances, would it not reek of racism? If a white person were to attack a black person, simply because the black person was following the white person, would there not be a suggestion that the white person acted out of an irrational, prejudiced fear? If we denied the black person the benefit of the law of self-defense, what would that say about our country?

What does it say about our country that so many people presume Mr. Zimmerman's guilt, despite the weight of the evidence to the contrary?

This was a tragic case, on so many levels. There were no winners. Mr. Zimmerman acted foolishly when he exited his car. Indeed, based upon his unsatisfying explanation as to why he found Mr. Martin suspicious, he acted foolishly when he called the police in the first place. However, it was profoundly irresponsible for the State of Florida to disregard its legal duties. The State chose to adopt a speculative, imaginary narrative, unsupported by the evidence, for the purpose of placating a political special interest. It should have been obvious to anyone watching the trial, that the evidence proved only one case: the case of self-defense.

The only redeeming quality of this trial, which seems to have unnecessarily ripped at the seems of racial animosity, is that the jury system worked. Six women, with no legal training, successfully listened to the evidence and applied the evidence to the law, as instructed by the judge. They didn't succumb to the government's tempting suggestion to "think with their hearts." Instead, in the great tradition of the American legal system, six jurors from the community used their heads and applied the law to the facts.

Now it's time to take account of what happened, and move forward with an eye toward preventing something like this from ever happening again. There are many difficult lessons to be learned for everyone: for the prosecutors and politicians; for George Zimmerman and his supporters, who are happy with the verdict; for those who are upset with the verdict; and for everyone in between.

FINALLY THE STATE IS PROVING A CASE IN THE GEORGE ZIMMERMAN TRIAL...THE DEFENSE'S CASE

July 1, 2013

The bizarre trial against George Zimmerman continued into its second week today. As we discussed earlier, after calling 22 witnesses in the first week, the State presented a substantial amount of evidence corroborating George Zimmerman's version of events. Today, the State doubled-down. Today, it was as though the State was trying to prove Mr. Zimmerman's innocence.

First, the State called Dr. Hirotaka Nakasone to the stand. Dr. Nakasone is an expert in the field of voice recognition, who works for the Operational Technology Division of the FBI. Finally! The State pulled out the big guns! Surely, Dr. Nakasone would testify that in the recorded telephone calls, the voice screaming for help was that of Trayvon Martin! This case is going to break right open!

When asked if he could determine the identify of the individual calling for help, Dr. Nakasone testified: "I decided it was not possible to determine."

Wait...what? The FBI expert, who conducted a voice identification analysis of the screaming voice recorded in multiple 911 calls, can't identify the screaming voice?! I'm shocked...SHOCKED.

It turns out, you can't identify a screaming voice sample with any degree of scientific certainty. Okay, fair enough. But surely, the State will have Dr. Nakasone testify that the voice came from a teenager, and not a grown adult...right?

Wrong.

"Guessing age is a little complicated," Dr. Nakasone testified. He couldn't provide an opinion as to the age of the individual screaming.

Okay, well, maybe someone familiar with a speaker's voice--say, like a mother or a father, who are familiar with their son's voice--could identify screams from 911 call? Yes, Dr. Nakasone testified, that is possible! Yay for the State! The State's expert witness testified that in his expert opinion, he could not determine the identity of the speaker; but, he acknowledged that maybe, possibly Trayvon Martin's family members, or George Zimmerman's family members, could. Brilliant! And let me guess: Trayvon's parents think its Trayvon; Zimmerman's family think its Zimmerman. In the world of criminal litigation, we call that: REASONABLE DOUBT.

Of course, Dr. Nakasone also testified that if someone were asked to identify a known voice sample, it is important not to introduce any bias into the analysis. For instance, it wouldn't be appropriate to have two parents analyze the voice sample together, because one parent could influence the other parent's analysis.

Considering that the State has conducted an outrageous investigation, in which prosecutors have violated core principles of sound investigative procedure (you know, like having Trayvon Martin's mother sit next to Rachel Jeantel for Ms. Jeantel's on-the-record, under oath interview), it wouldn't surprise me in the least to learn that Trayvon Martin's parents listened to the 911 calls together, and were asked to give their opinions together. Just a hunch.

The State also called Officer Singleton to the stand. Officer Singleton took a recorded interview of George Zimmerman on the night of the shooting, which the prosecution played in its entirety.

The playing of Mr. Zimmerman's statement was a huge coup for the Defense. As any criminal litigator with experience knows, the prosecution should avoid--if at all possible--from playing a Defendant's recorded statement, unless the statement is a confession. Why? Because if the prosecution plays the Defendant's recorded statement, in which the Defendant lays out his version of events, the Defendant no longer has an incentive to testify. Typically, the prosecution would salivate at the idea of cross examining the Defendant.

So, why did the State do it? The answer is obvious: the State's case is garbage, and they're reaching. Thus far, the overwhelming import of witness testimony has corroborated Mr. Zimmerman's version of events. Now that we've heard Mr. Zimmerman's recorded statement, we know that according to Mr. Zimmerman, he (1) got out of the car because he was trying to answer the police dispatcher's questions; (2) he was returning to his car when Trayvon Martin sucker punched him; and (3) after shooting Trayvon Martin, he got on top of Mr. Martin. This third point is essential, because a couple of witnesses have testified to seeing Mr. Zimmerman on top of Mr. Martin, after the shooting.

So, again, what's the point of playing Mr. Zimmerman's recorded statements? The State's hope is that the jury will find any inconsistencies between the statements as indicative that Mr. Zimmerman answered questions dishonestly. The Defense will argue that any inconsistencies were minor, and that it is entirely natural for an individual to tell the same story with mild inconsistencies. It's human nature.

Interestingly, Officer Singleton testified that Mr. Zimmerman asked Officer Singleton if Officer Singleton was Catholic. When Officer Singleton said, "No, I'm Christian; but why does that matter," Mr. Zimmerman responded: "Because in the Catholic faith, killing is always wrong."

First, as a matter of digression, let me disabuse everyone of the notion that the Catholic Church doesn't recognize the legitimacy of self-defense. Mr. Zimmerman was 100% wrong. From the Catechism of the Catholic Church, via the Vatican's website: "Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow...Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one's own life than of another's."

So, now that we are all on-board with the Catholic Church's position on self-defense, let's analyze Mr. Zimmerman's statement. The State will argue that Mr. Zimmerman's statement is indicative of a guilty conscious. He knew what he did was wrong. On the other hand, the State has presented some evidence tending to show that Mr. Zimmerman was overly calm and matter-of-fact, as though he didn't care. Clearly, at a minimum, Mr. Zimmerman evinced some emotion.

Personally, I think it is rather natural for a person who has killed in self-defense to question the morality of taking another's life, regardless of the justification. I don't think the statement is going to do much for the State. What's more, Officer Singleton denied that Mr. Zimmerman showed any emotions evincing "ill will, hatred, spite, or an evil intent."

Next, the State called the lead investigator to the stand, Detective Serino. Through Detective Serino, the State introduced numerous recorded statements of Mr. Zimmerman. During some of these recorded interviews, Serino pointedly challenged Mr. Zimmerman's account of what happened the night of the shooting. While Mr. Zimmerman mostly held his ground on key points, he clearly seemed uncomfortable. At some points, he simply claimed not to remember or recollect what happened.

These recorded statements probably scored some points for the prosecution. The challenging questions of Mr. Zimmerman undoubtedly had the jury thinking critically of Mr. Zimmerman's version of events.

However, the biggest takeaways from Detective Serino's testimony struck strong blows against the prosecution. Detective Serino testified that he didn't think he had enough evidence to arrest Mr. Zimmerman, but that he went forward because of political pressure. The damning import of that testimony cannot be understated. It doesn't just play to a key element of the Defense's narrative; it confirms it. This prosecution is less about justice, finding the truth, and adherence to the rule of law, than it is about offering a sacrificial lamb at the table of political expediency.

In a terrific cross examination, Mark O'Mara detailed with Detective Serino how Mr. Zimmerman's statements were consistent with all of the other eyewitness testimony gathered in the investigation. In fact, Detective Serino testified to the jury: "Yes [I think Mr. Zimmerman was telling the truth]."

Honestly, I cannot recall a trial in which the Defense has so consistently scored more points with prosecution witnesses than the prosecution itself. Then again, I've never seen a prosecution brought with such bad faith.

ZIMMERMAN WEEK 1 TRIAL UPDATE--OR, KNOCK-KNOCK JOKES AREN'T FUNNY--OR, THE STATE'S PROVING THE DEFENSE'S CASE

June 30, 2013

Week 1 of what is arguably the most important criminal case in generations, is in the history books. Let's break down the action.

OPENING STATEMENTS

To say the least, the opening statements were bizarre. As we have discussed here in the past, opening statements are of immense importance, particularly for the defense. The opening statement is the first opportunity for an attorney to frame the facts and the issues for the jury. As the saying goes, you never get a second chance to make a good first impression.

Zimmerman's defense attorney, Don West, thought the best way to make a good first impression was to tell the worst knock-knock joke in the history of bad knock-knock jokes. I couldn't help but think that Mr. West was trying to out-do the stuttering defense attorney in the movie My Cousin Vinny. It's as though he was trying to give the worst opening statement in the history of the world.

Now, I think it goes without saying that even if the joke was really funny and clever and intelligent, it is nevertheless inappropriate to begin defending a murder case with a joke; let alone, a knock-knock joke. Let alone, an unfunny knock-knock joke. Let alone, an unfunny knock-knock joke that pokes fun at the members of the jury. It was so bad, Alan Dershowitz suggested that Mr. Zimmerman ask for a mistrial, arguing that the stupidity of the joke prejudiced the jury to such an extent, that Mr. Zimmerman could not receive a fair trial going forward.

However, after bombing (or should I say, self-immolating) before the jury, Mr. West did eventually get around to providing the jury with a framework with which to view the evidence. Unfortunately, Mr. West laid out the entirety of the Defense case, which may have been overkill. When making an opening statement, an attorney never wants to overcomplicate the matter. An attorney wants to provide a narrative and a theme within which the jury may view the evidence. It's an opportunity to provide a persuasive context. However, if an attorney lays out the entire theory of the case, the attorney risks confusing and losing the interest of the jury. Let's not forget, the jury hasn't actually seen or heard any evidence. Opening statements should be easy to follow and should establish a universally recognizable theme.

The prosecutor, John Guy, didn't exactly give the best opening statement either, although his presentation was miles better than Don West's. Mr. Guy did a fantastic job laying out a framework for the jury. What's more, he hit the right tone. However, Mr. Guy could not escape the fact that the State's evidence is, at it's best, horribly insufficient to sustain a verdict of guilty. He was forced to acknowledge that (1) no State witness saw the entire confrontation between George Zimmerman and Trayvon Martin; (2) that the State could only provide the jury with "slices" of what actually happened; and (3) that Trayvon Martin was on top of George Zimmerman during the fight. I would expect to hear that from the defense; not the prosecution. Mr. Guy might as well have said: "We don't have enough evidence to prove this case beyond a reasonable doubt, but in the end, we hope you think he's guilty...in your gut."

All in all, thanks to Mr. West's horrific knock-knock joke, the opening statements went better for the prosecution than the defense, even though the prosecution essentially admitted the weakness of its case.

THE STATE'S CASE-IN-CHIEF

The State's line-up of witnesses has been somewhat puzzling. They've taken a fairly chronological approach, which, although logical, doesn't make for a compelling or persuasive presentation. The result has been a slow start to the trial. What's more, most of the State's witnesses have either: (1) not provided much evidence that is necessary to establish the key elements of the criminal charge; or (2) have helped the Defense as much as the State; or (3) have helped the Defense more than the State.

The first witness was Chad Joseph, Trayvon Martin's friend. While he provided important context to the jury, introducing Mr. Martin as a typical high-schooler who liked video games, he didn't provide any evidence that established any of the material elements of the offense. I think it would have been better to call Mr. Joseph to the stand toward the end of the State's case-in-chief, to provide some emotional impact, and to remind the jury of Mr. Martin's youthful disposition. The testimony of waiting in vain for Mr. Martin to return home, not knowing that he'd been shot dead on the way back from the Seven Eleven, would have proven more powerful toward the end of the State's case.

The State's second witness was Andrew Gaugh, the Seven Eleven attendant who sold Trayvon Martin the famous can of Iced Tea and the bag of Skittles. Mr. Gaugh did little more than authenticate surveillance video of Mr. Martin at the Seven Eleven, which was recorded about forty-plus minutes before the shooting. He also testified that he didn't find Mr. Martin "suspicious."

All things considered, the testimony from these two witnesses didn't do much to push the ball forward for the State.

THIRD WITNESS: SEAN NOFFKE

The State's third witness was Sean Noffke, the police dispatcher who spoke with George Zimmerman before the shooting. Mr. Noffke was an important witness, because it was through his testimony that the State admitted into evidence the recorded telephone call that Mr. Zimmerman made to the police on the night of the incident.

The phone call itself is of immense importance to the prosecution, because in the recorded call, Mr. Zimmerman says the words: "these assholes always get away." He might also have said the words: "fucking punks," although those words are not perfectly clear in the call. It is certainly a plausible interpretation to believe Mr. Zimmerman said the words: "fucking punks."

Unfortunately for the State, this is probably the only credible evidence that it can rely upon when making the argument that George Zimmerman killed Trayvon Martin with "ill will, hatred, spite, or an evil intent." The overwhelming weight of the evidence is that the shooting occurred in the course of a physical altercation between Mr. Zimmerman and Mr. Martin. This context, by itself, doesn't readily lend itself to a charge of Second Degree Murder (it could, however, lend itself to a Manslaughter charge). However, the State is alleging something more: that Mr. Zimmerman provoked and sought out the fight with Trayvon Martin, with a "depraved mind and without regard for human life." It is the State's hope that the jury will believe that Mr. Zimmerman acted with "ill will, hatred, spite, or an evil intent," because Mr. Zimmerman, prior to shooting Trayvon Martin, said the words: "these assholes always get away," "fucking punks."

Beyond those statements, all of the other evidence simply suggests that George Zimmerman followed Trayvon Martin with the intent of leading the police to Mr. Martin's location. There is very little (if any) credible evidence that Mr. Zimmerman initiated a physical confrontation with Mr. Martin. In fact, the phrase "these assholes always get away" and "fucking punks" doesn't necessarily indicate that Mr. Zimmerman acted with "ill will or hatred," or that he initiated physical contact. At most, it presents an arguable inference that (1) Zimmerman was frustrated and angry; (2) Zimmerman wanted to make sure that Trayvon Martin didn't get away; and thus (3) maybe Zimmerman was willing to do whatever it took to make sure that Mr. Martin didn't get away.

In light of the State's burden to prove each and every element beyond and to the exclusion of every reasonable doubt, it should go without saying that to sustain a conviction for Second Degree Murder, the State will have to do better than just a "maybe."

Interestingly, Mr. Noffke's testimony laid to rest the State's allegation that George Zimmerman disregarded an "instruction" not to follow Trayvon Martin. Mr. Noffke acknowledged that he did not "instruct" Mr. Zimmerman not to follow Trayvon Martin, because, as a police dispatcher, he was specifically trained not to provide such an instruction.

Ultimately, this witness served a purpose for both the State and the Defense. For the State, the witness authenticated the recorded telephone call, which included the colorful language that arguably indicates that Zimmerman acted with "ill will, hatred, spite, or an evil intent." On the other hand, the witness acknowledged that he did not order Mr. Zimmerman to not follow Trayvon Martin. In fact, he admitted that he asked Mr. Zimmerman questions about Mr. Martin's whereabouts, which might have reasonably led Mr. Zimmerman to follow Mr. Martin. In the end, Mr. Noffke's testimony was a wash.

FOURTH WITNESS: RAMONA RUMPH

The State called Ramona Rumph in order to admit a series of non-emergency telephone calls made by Mr. Zimmerman in the months prior to the shooting. The State intends to use these phone calls to provide context to Mr. Zimmerman's state of mind on the night of the shooting. It is the State's contention that after making a series of fruitless phone calls to police, Mr. Zimmerman was frustrated and desperate that another "suspicious" individual not escape.

Clearly, the Defense didn't want these calls in evidence. However, at most, the State is asking the jury to draw a negative inference from what are otherwise benign non-emergency telephone calls to police, which arguably are consistent with Mr. Zimmerman's role as a member of the neighborhood watch. While it's possible that maybe these phone calls indicate a growing frustration on the part of Mr. Zimmerman, they certainly don't prove, beyond and to the exclusion of every reasonable doubt, that Mr. Zimmerman acted with the requisite criminal intent.

Nevertheless, the phone calls do further the State's portrayal of Mr. Zimmerman as an overzealous neighborhood watchman.

FIFTH WITNESS: WENDY DORIVAL

Furthering their narrative that Mr. Zimmerman was an overzealous neighborhood watchman, the State called to the stand Wendy Dorival, the former neighborhood watch coordinator with the Sanford Police Department. Ms. Dorival testified that members of the neighborhood watch were instructed not to follow or attempt to confront suspicious individuals, but were instead cautioned to only call the police. The State will rely on this testimony to argue that Mr. Zimmerman broke from typical protocol when he got out of his car and followed Mr. Martin, indicating that Mr. Zimmerman acted with an "ill will" when he shot Mr. Martin (or, in the alternative, that he acted with "culpable negligence").

However, the Defense scored important points with Ms. Dorival. Ms. Dorival testified that Mr. Zimmerman was "professional" and dedicated to his volunteer position as a neighborhood watchman. She said it was apparent that Mr. Zimmerman wanted to help make the community a better place, particularly because the community had suffered a series of burglaries. Most importantly, she described Mr. Zimmerman as "meek."

All things considered, this witness was probably a wash.

SIXTH WITNESS: DONALD O'BRIEN

The State called Donald O'Brien to hammer home the narrative that Mr. Zimmerman acted inappropriately. Mr. O'Brien was the president of the HOA, and testified that he attended a neighborhood watch meeting, in which participants were instructed not to engage suspicious individuals. Essentially, his testimony was duplicative of Ms. Dorival's testimony.

SEVENTH WITNESS: OFFICER RAIMONDO

Finally, with the testimony of Officer Raimondo, the State presented evidence from a witness who could provide some testimony about what occurred at the scene of the alleged crime. Officer Raimondo didn't witness any portion of the altercation or the shooting, but he was the officer who attempted to provide life-saving aid to Trayvon Martin at the scene. His testimony was compelling and powerful.

For purposes of making a persuasive presentation, the State should not have waited until its seventh witness to provide this testimony. In a murder case, it is important that the State constantly remind the jury why the jury is seated in the first place: the defendant killed a human being. The State should confront the jury with pictures of the deceased victim immediately, to hammer home the seriousness of the case and the humanity of the victim. Nothing is so jarring than seeing pictures of a lifeless victim, still dressed in his clothes and in his shoes, lying peacefully in the wake of a violent confrontation.

What's more, Officer Raimondo testified as to how he tried to save the life of Mr. Martin. This provided the State with a golden opportunity to juxtapose the actions of Mr. Zimmerman with the actions of law enforcement. From the State's perspective, Mr. Zimmerman was a vigilante, unprofessionally and recklessly taking matters into his own hands; not only with "culpable negligence," but also with an "ill will" and "evil intent." Unlike Mr. Zimmerman, real members of law enforcement tried desperately to save Mr. Martin's life.

Ultimately, the State scored important emotional points with this witness. It was the first witness in the State's case that not only didn't backfire in any meaningful way, but who also moved the ball forward for the State. The admission of the death photos were jarring. For this reason, Officer Raimondo should have been the State's first witness.

From here on out, the State's case proceeds to nose-dive.

EIGHTH WITNESS: DIANA SMITH, CRIME SCENE TECHNICIAN

The State had to call Diana Smith, because she processed the crime scene. It was through Ms. Smith that the State admitted much of the physical evidence recovered at the crime scene, including the gun and the shell casing. However, Ms. Smith's testimony was far more important for the Defense, because she took pictures of Mr. Zimmerman that showed that Mr. Zimmerman suffered substantial injuries to his face and head, corroborating the Defense's theory of the case.

Again, the State had no option but to call Ms. Smith. Considering that it was inevitable that she would aid in the Defense's case, it was a smart move to bury her testimony in the middle of the third day of the trial. However, the fact that she testified immediately following Officer Raimondo illustrates the State's error in scheduling its witnesses.
Officer Raimondo scored important emotional points with the jury. While Ms. Smith also scored some emotional points by displaying Mr. Zimmerman's handgun, she also introduced the jury to bloody pictures of Mr. Zimmerman, which undoubtedly diluted the emotional impact of Officer Raimondo's testimony.

Certainly, Mr. West could have done a more persuasive job on cross examination, painstakingly drawing out the various individual cuts, abrasions, bruises, and swelling that Ms. Smith observed on Mr. Zimmerman's head and face. Nevertheless, the point was made: although the State claims that Mr. Zimmerman attacked Mr. Martin, the crime scene technician observed no injuries on Mr. Martin's body, other than the fatal gunshot wound. Mr. Zimmerman, however, who is claiming that he only fired his gun in self-defense after being viciously attacked, suffered numerous bloody injuries, including a broken nose, cuts to the back of his head, and multiple welts.

Without a doubt, through Ms. Smith's testimony, the Defense delivered its first major blow to the State's case.

NINTH WITNESS: SELENE BAHADOOR

I cannot imagine why the State chose to call Ms. Bahadoor as its first "eyewitness." It simply makes no sense, as a matter of chronology or logic, to have called her first. She essentially saw nothing in the darkness, other than flailing arms. She heard sounds coming from people outside, followed by a gunshot. She also testified that she heard movement that sounded as though individuals were moving from left to right. She could not provide any detail indicating who started the confrontation, or what specifically was happening during the confrontation.

The Defense tore Ms. Bahadoor apart. Despite claims that she didn't change her testimony, Mark O'Mara established that during numerous prior statements, Ms. Bahadoor had never once said she heard sounds moving from left to right. Instead of simply admitting this, Ms. Bahadoor evaded. It seriously damaged her credibility.

What's worse, Ms. Bahadoor denied bias, despite "liking" the Facebook page "Justice for Trayvon." Worse still, she "liked" a petition calling for the arrest and prosecution of George Zimmerman. Mark O'Mara did a wonderful job establishing that Ms. Bahadoor was not only motivated by bias, but that she allowed that bias to affect her testimony.

For a witness who, at best, couldn't provide the State with any meaningful insight into the nature of the physical confrontation between Mr. Zimmerman and Mr. Martin, it is a mystery as to why the State would call her first. What's worse, the Defense portrayed the State's first eyewitness as a biased sympathizer of the Martin family. Fairly or not, that impression will likely color the testimony of future State witnesses, because it corroborates part of the Defense's theory and theme of the case.

Ms. Bahadoor was an unforced error.

TENTH WITNESS: JEANNE MANALO

While Ms. Manalo's testimony played better than Ms. Bahadoor's, she also couldn't provide the State with details sufficient to contradict the Defense's theory. Like Ms. Bahadoor, she didn't observe anything more than shadowy figures struggling with one another. She was of the opinion that one figure was bigger than the other, and she testified that the bigger figure was on top of the smaller figure. She was then allowed to testify that, having compared photographs of Mr. Zimmerman with photographs of Mr. Martin, it was her opinion that Mr. Martin was the smaller individual. She was further allowed to testify that it was her guess (what I'd call, impermissible speculation) that Mr. Martin was the individual calling for "help," because Mr. Martin was the smaller of the two individuals. Ostensibly a point for the prosecution.

However, Mark O'Mara confirmed that the pictures of Mr. Martin that Ms. Manalo used for purposes of comparison were photographs of an adolescent Mr. Martin. The news media, which in some quarters has consistently provided unfair coverage of the case, has plastered television sets across the nation with images of a young, smiling Trayvon Martin. One of the pictures Ms. Manalo used for comparison (in fact, it was the first photograph she referenced) was of an eleven-year-old Trayvon. She eventually admitted that perhaps she was wrong as to who was the smaller individual. What's more, the Defense established that Ms. Manalo didn't get a very good look at what was going on.

Ms. Manalo's testimony was probably a wash. However, the fact that she compared current pictures of Mr. Zimmerman with outdated pictures of Mr. Martin certainly plays into the Defense's theme of an unfair, biased and politicized prosecution.

ELEVENTH WITNESS: JANE SYRDYKA

Ms. Syrdyka's testimony was far more potent for the State than either Ms. Bahadoor's or Ms. Manalo's. However, she also couldn't provide any detailed eyewitness testimony describing the confrontation between Mr. Zimmerman and Mr. Martin. Nevertheless, she testified that she heard a cry for help, which she "felt" had come from a boy. She also called 911, the recording of which was entered into evidence in its entirety. In the recorded call, Ms. Syrdyka is heard frantically crying out: "why did he shoot him?!"

Ms. Syrdyka's testimony scored important emotional points with the jury. From an evidentiary standpoint, however, she still could not provide the State with the level of detail necessary to contradict the Defense's theory of the case. She couldn't testify with certainty that Mr. Martin called for help, nor did she see the shooting itself, which is perhaps why she had to ask the question "why."

Still, the State scored some emotional points with her testimony.

TWELFTH WITNESS: RACHEL JEANTEL

Finally, twelve witnesses into the trial, the most anticipated witness in the State's case took the stand to testify. Ms. Jeantel is the individual who was speaking on the phone with Mr. Martin at the time Mr. Martin was walking away from Mr. Zimmerman. According to Ms. Jeantel, she was on the phone with Mr. Martin at the moment the confrontation took place.

Before analyzing her testimony, it is important to note, from the outset, how problematic it is for the State that its "star witness," whom the State is depending upon to establish that Mr. Martin did not instigate the physical confrontation, did not actually see anything. She wasn't there. She heard one side of a conversation from the other end of a telephone line, while doing her hair in Miami. That, in and of itself, is problematic. Unfortunately for the State, it turned out far worse than that.

Ms. Jeantel was a train-wreck of a witness. While television pundits have attempted to debate her performance, the punditry is pure television theatre. Her performance on the stand is not subject to rational debate (although, to be sure, juries are not always rational). Ms. Jeantel was objectively horrific. On a scale of 1-10, with "1" representing the catastrophic performance of Mr. West's terrible knock-knock joke, Ms. Jeantel easily scored a negative ten.

First, she acknowledged that it was Trayvon Martin who used racial epithets; not George Zimmerman. According to Ms. Jeantel, Mr. Martin described Mr. Zimmerman as a "crazy ass cracker." Ms. Jeantel suggested to Mr. Martin that perhaps Mr. Zimmerman was a "rapist." Not only did she confirm that Mr. Martin called Mr. Zimmerman a "cracker," she also confirmed that Mr. Martin called Mr. Zimmerman a "nigga." Then, rather pathetically, she tried to claim that in her culture (North Miami), "cracker" isn't a derogatory term. Riiiiiight.

Second, she acknowledged that on at least two prior occasions, including during a recorded interview, she failed to mention the most important part of the telephone call: that Mr. Martin allegedly said the words: "get off, get off."

Third, as though her bias wasn't already obvious, she acknowledged that she was brought into the case by the Martin family legal team.

Fourth, she acknowledged that she altered her version of events for the benefit of Mr. Martin's grieving mother. What's more, she admitted that during her initial interview with the prosecutor, the prosecutor inconceivably had Mr. Martin's mother sit next to her during the entirety of the interview. She admitted that during that interview, she omitted facts for the benefit of Mr. Martin's mother.

Fifth, she acknowledged that she lied to investigators on multiple occasions, including while under oath.

Under cross examination, she admitted that she could not testify as to whether Mr. Martin or Mr. Zimmerman initiated the physical confrontation.

None of this is to say anything about her inappropriate demeanor and her hostility toward the Defense. Not to mention the fact that she used the word "retarded" to describe a question under cross examination.

Now, as any criminal litigator with trial experience knows, sometimes the prosecution has to rely on colorful witnesses, who don't act appropriately on the stand. That's a given. And it's true that such witnesses often appear "authentic." However, Ms. Jeantel's "authenticity" doesn't change the substance of her testimony. Even if the jury were to disregard Ms. Jeantel's inappropriate demeanor and forgive her for her admitted lies in the past, the jury is still left with testimony that establishes: (1) Trayvon Martin called Mr. Zimmerman a "crazy ass cracker" and a "nigga;" (2) Trayvon Martin ran from Mr. Zimmerman, but chose not to go inside his house; (3) Trayvon Martin initiated verbal communication with Mr. Zimmerman; and (4) Ms. Jeantel doesn't know who threw the first punch.

While you never can be sure how a jury will react to a witness (let's not forget that a Central Florida jury actually acquitted Casey Anthony), it is hard to imagine a worse witness. She was a titanic failure, who undermined the State's theory of the case and bolstered the Defense.

THIRTEENTH WITNESS: RAYMOND MACDONALD

The State called Raymond MacDonald from T-Mobile to the stand, in order to admit Trayvon Martin's phone records.

FOURTEENTH WITNESS: JENNA LAUER

The State's fourth "eyewitness" provided testimony similar to Ms. Bahadoor, Ms. Manalo, and Ms. Syrdyka, in that she didn't see any details of the confrontation between Mr. Martin and Mr. Zimmerman, but she did hear cries for help. Interestingly, however, the voices were right outside her unit. She testified that she could not tell who was the individual calling for help, but that it sounded like the individual was desperate. She also confirmed, after looking at bloody pictures of George Zimmerman, that the calls for help were consistent with having come from someone who suffered injuries like Zimmerman's. Indeed, she also testified to knowing George Zimmerman. She testified that she had never seen Mr. Zimmerman act like a "hot-head" or act with a temper. She also testified that she thought Mr. Zimmerman was just trying to help the community.

In fact, Ms. Lauer came off more as a Defense witness than as a prosecution witness. Indeed, outside the presence of the jury, the prosecutor attempted to impeach Ms. Lauer as having a pro-Zimmerman bias, based on the fact that she purportedly "follows" George Zimmerman's brother on Twitter. It turned out, however, that the prosecutor didn't understand Twitter, and that Ms. Lauer doesn't in fact "follow" Mr. Zimmerman's brother.

Again, the State's witness probably did more for Defense than for the State.

FIFTEENTH WITNESS: SELMA MORA

Ms. Mora was the State's fifth "eyewitness," who, like the four prior "eyewitnesses," didn't actually see much detail of the confrontation. In fact, she was standing relatively far away from the incident. She did, however, importantly testify that she saw a man wearing red and black on top of another guy, as though he were "riding" the other person. This detail is important, because Zimmerman was wearing an orange and black jacket, which had a reddish appearance. If she had seen this prior to the gunshot, it would have provided a concrete contradiction to Mr. Zimmerman's version of events. However, what she saw occurred after the gunshot, and thus doesn't contradict Mr. Zimmerman's version of events.

SIXTEENTH WITNESS: GREG MCKINNEY

Mr. McKinney simply testified that not all of the community's security cameras were operable on the night of the incident, and that the incident was not captured on film.

SEVENTEENTH WITNESS: JONATHAN GOOD

The fact that the State called Jonathan Good as its seventeenth witness says quite a lot. Unlike the prior five "eyewitnesses," Mr. Good actually saw the physical confrontation up close and personal. It happened in his backyard. If this were a straightforward prosecution, Mr. Good would have been the State's "star witness." However, Mr. Good was a State's witness in name only. Make no mistake, Mr. Good's testimony was, from beginning to end, a corroboration of the Defense's case.

Unlike Ms. Mora, who witnessed the struggle in the dark from a distance, Mr. Good actually approached Mr. Zimmerman and Mr. Martin, and told them to "get lost." Mr. Good testified that Trayvon Martin was on top of George Zimmerman, "MMA style," "throwing blows down" on Mr. Zimmerman and "ground and pounding" Mr. Zimmerman's head. According to Mr. Good, Mr. Zimmerman was "beat up." In Mr. Good's opinion, it was George Zimmerman calling for help.

The State had to call Mr. Good, because if they didn't, it would have appeared to the jury as though the State was trying to hide Mr. Good's testimony. Of all of the "eyewitness" testimony, his is clearly the most relevant. He struck a serious blow to the State's case.

EIGHTEENTH WITNESS: JONATHAN MANALO

Mr. Manalo was another of the State's witnesses who helped the Defense as much, if not more, than the State. Mr. Manalo didn't see the actual confrontation, but he rushed outside after the shooting. He described Mr. Zimmerman as looking like he had his "butt beat." In fact, Mr. Manalo snapped a photograph of the back of Mr. Zimmerman's bloody head. Mr. Manalo testified that Mr. Zimmerman said, immediately following the shooting and prior to police arrival, that Mr. Martin had attacked him and that he had defended himself by shooting Mr. Martin. On cross examination, Mr. Manalo testified that he had no reason to disbelieve Mr. Zimmerman's immediate claims of self defense.

The only part of Mr. Manalo's testimony that might arguably have favored the State involved a telephone call to Mr. Zimmerman's wife. Mr. Manalo testified that when he told Mr. Zimmerman's wife over the phone that Mr. Zimmerman was involved in a shooting and was being held for questioning, Mr. Zimmerman interjected: "Just tell her I shot somebody." He also testified that he didn't think Mr. Zimmerman was in shock, and that he was acting calm.

Weighing the totality of his testimony, he certainly seems to have aided the Defense's case more than the State's.

NINETEENTH WITNESS: OFFICER AYALA

Officer Ayala didn't shed any new light on the case. He testified that when he arrived at the scene, he and Officer Raimondo attempted to provide aid to Mr. Martin. Officer Ayala also testified that Mr. Zimmerman was compliant with officers.

TWENTIETH WITNESS: STACEY LIVINGSTON

Ms. Livingston testified that she treated Mr. Zimmerman's injuries at the scene. She confirmed that Mr. Zimmerman had a swollen nose, as well as two, one-inch cuts on the back of his head. She testified that she did not take Mr. Zimmerman to the hospital for his injuries. She further testified that Mr. Martin was declared dead at the scene.

Ultimately, Ms. Livingston's testimony was fairly neutral. While she established that Mr. Zimmerman didn't suffer any life-threatening injuries, she did testify that Mr. Zimmerman suffered bloody injuries to the back and front of his head.

TWENTY FIRST WITNESS: OFFICER SMITH

Just as the State buried the testimony of Jonathan Good, who had the most relevant eyewitness testimony of the actual confrontation, the State buried the testimony of Officer Smith, who was the first law enforcement officer to speak with George Zimmerman.

According to Officer Smith, Mr. Zimmerman was cooperative and didn't ask for an attorney. Not only did Mr. Zimmerman explain that he acted in self defense, but he also told Officer Smith that he was calling for help and that no one would come to his aid. Most importantly, Officer Smith testified that Mr. Zimmerman's back was wet an covered in grass, indicating that Mr. Zimmerman was on his back during part of the confrontation. This testimony will prove essential during closing arguments, when Defense will remind the jury that photographs of Trayvon Martin show grass stains on the knees, whereas Mr. Zimmerman had grass stains on his back.

Yet again, Officer Smith provided more evidence for the Defense than for the State. He did, however, establish that Mr. Zimmerman didn't want to go to the hospital for his injuries.

TWENTY SECOND WITNESS: LINDZEE FOLGATE

Ms. Folgate is a physician's assistant, who treated Mr. Zimmerman before and after the shooting. Interestingly, she testified that in September 2011, Mr. Zimmerman claimed to be taking mixed martial arts classes three times a week. If Mr. Zimmerman was taking MMA classes three times a week since Septemeber, 2011, it might suggest that Mr. Zimmerman wasn't the "meek," defenseless victim of seventeen-year-old Trayvon Martin.

On the other hand, Ms. Folgate also confirmed that in her diagnostic opinion, Mr. Zimmerman suffered a broken nose on the night of the shooting. It was yet another occasion of a State's witness providing important testimony for the Defense.

THE TAKE AWAY

After one week and twenty two witnesses, the State has not presented any evidence that George Zimmerman initiated physical contact with Trayvon Martin. The closest the State came was through the testimony of Ms. Jeantel, who bombed horrifically. Ultimately, she testified that she could not confirm who hit who first. What's more, the State has presented precious little evidence showing that Mr. Zimmerman acted with an "ill will" or an "evil intent."

The State has laid some groundwork for the lesser-included offense of Manslaughter. They've established that Mr. Zimmerman deviated from typical protocol when he got out of his car and followed Trayvon Martin. Possibly, that deviation might serve as the basis for a finding that Mr. Zimmerman acted with "culpable negligence," but that is certainly a stretch. Negligence? Sure. Culpable negligence? Probably not.

The Defense, meanwhile, has already established key facts in support of its theory of self-defense. The jury now knows that Trayvon Martin was also agitated prior to the incident, calling George Zimmerman a "cracker" and a "nigga." The jury has heard testimony that Trayvon Martin was "ground and pounding" Mr. Zimmerman "MMA style." We've heard from another witness that Mr. Zimmerman looked like he got his "butt beat." The jury has seen bloody photos of Mr. Zimmerman's head and face, as well as testimony establishing that Mr. Zimmerman's nose was broken. The jury has seen photos establishing that Mr. Martin had grass stains on his knees, while hearing testimony that Mr. Zimmerman had grass stains on his back. Moreover, the State has heard evidence that Mr. Zimmerman cooperated at the scene, and claimed instantly that he was crying for help and acted in self-defense.

Unless the State turns things around in the next week, the Defense won't have to put on a case. The State's doing it for them.

Probable Cause Affidavit in George Zimmerman Case Woefully Inadequate

April 13, 2012

It's been over a month since George Zimmerman shot and killed Trayvon Martin, an unarmed 17 year old child. State Attorney Angela Corey has been on the case since March 23, 2012, when Governor Rick Scott appointed her to oversee the criminal investigation into the shooting. After weeks of gathering evidence, speaking to witnesses, and evaluating the case, State Attorney Corey decided to charge George Zimmerman with Second Degree Murder. In a case that has captivated a nation and threatened to open the seams of racial animosity, State Attorney Corey filed a Probable Cause Affidavit that is, in a word, a flop.

The standard for Probable Cause is extremely low. Probable Cause for arrest exists where the facts and circumstances known to the arresting officers are sufficient to cause a reasonably cautious person to believe that the suspect was guilty of committing a crime. The standard of weighing the evidence for probable cause is far lower than the standard of weighing evidence required for a conviction beyond a reasonable doubt.

At a minimum, a Probable Cause Affidavit must state facts establishing that a defendant has committed each of the elements of the charged crime. Thus, an affidavit in support of Second Degree Murder must state facts establishing that 1) the victim is dead; 2) the victim's death was caused by the criminal act of the defendant; and 3) the killing was accomplished through an act "imminently dangerous to another and demonstrating a depraved mind." This last element requires an act that: (a) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (b) is done from ill will, hatred, spite, or an evil intent; and (c) is of such a nature that the act itself indicates an indifference to human life.

The Probable Cause Affidavit in the George Zimmerman case doesn't come close to these requirements. Alan Dershowitz, the esteemed law professor from Harvard, probably puts it best:

Let's break down where the Probable Cause Affidavit goes wrong. First, the affidavit makes assertions without providing a basis for the assertions. For instance, the Affidavit states: "Zimmerman confronted Martin and a struggle ensued." However, the affidavit doesn't explain the basis for the conclusion that "Zimmerman confronted Martin." Did a witness say they saw Zimmerman confront Martin? Did Zimmerman admit to confronting Martin? On what basis does the investigating officer swear under oath that he has reason to believe that Zimmerman confronted Martin?

Secondly, the affidavit does not even pretend to state a fact establishing that the shooting was committed with "ill will, hatred, spite, or evil intent." At most, the affidavit claims that Zimmerman said the words "these f------ punks" at some point prior to the shooting. Is the prosecution basing its murder charge on the phrase "f------ punks?"
Without even a single sentence of the affidavit claiming that Zimmerman pulled the trigger with "ill will, hatred, spite, or evil intent," it is hard to imagine how the prosecution, in good faith, can file charges for Second Degree Murder.

Lastly, and perhaps most importantly, the affidavit omits material evidence, as well as misstates a known fact. For instance, the affidavit claims that a police dispatcher "instructed" Zimmerman not to follow Martin. However, in the recorded phone conversation, the police dispatcher merely tells Zimmerman: "we don't need you to do that." While this may seem like a minor discrepancy, it is clearly inaccurate to state that the dispatcher "instructed" Zimmerman not to follow Martin. At a minimum, this misstatement of fact evinces a disregard for accuracy. What's worse, the affidavit never makes mention of the 911 caller, who claimed that (1) Zimmerman yelled for help; and (2) that Martin as on top of Zimmerman, "beating up" on Zimmerman. While the affidavit claims that Zimmerman "admitted [to] shooting Martin," the affidavit omits that Zimmerman claimed to have shot Martin in self-defense.

These omissions potentially render the Probable Cause Affidavit legally insufficient, and entitle Zimmerman to an evidentiary hearing on the sufficiency of probable cause. As the Florida Supreme Court held in Johnson v. State, 660 So. 2d 648 (Fla. 1995), if omitted material is added to an affidavit and thus defeats probable cause; and if the omission resulted from intentional or reckless police conduct with the intent to deceive, then a defendant is entitled to an evidentiary hearing.

The woefully inadequate Probable Cause Affidavit indicates that the prosecution is skating on thin ice. Manslaughter charges would be far more appropriate.

Why Trayvon Martin's Case May Not Go To A Jury

April 13, 2012

getoutofjail.jpgNow that prosecutors have brought charges against George Zimmerman, you probably think that a jury is going to hear the facts and decide the case. Think again. Under Florida's "Stand Your Ground" law, if George Zimmerman can convince a judge that he acted justifiably, he is entitled to immunity from prosecution. That means no jury; no conviction; no jail. Think of it as a big "Get Out of Jail Free" card. It is worth repeating: Florida's "Stand Your Ground" law does not just provide an affirmative defense; it provides immunity. The distinction is extremely significant.

For instance, just last month, a Florida judge dismissed Second Degree Murder charges in the killing of Pedro Roteta, an unarmed 26 year old man. The defendant, Greyston Garcia, allegedly saw Roteta steal a radio from Garcia's truck. Unlike George Zimmerman, Greyston Garcia didn't call the police before running after Pedro Roteta. Instead, Garcia grabbed a large knife and chased Roteta for at least a block. Upon catching up with Roteta, Garcia proceeded to stab Roteta to death. After the brutal killing, Garcia took Roteta's bag of stolen radios and allegedly pawned two of them; he also hid the knife and never called 911 to report the incident. Nevertheless, thanks to Florida's "Stand Your Ground" immunity clause, Greyston Garcia never faced a jury. Instead, Garcia filed a Motion to Dismiss and testified that Roteta swung a bag of stolen radios at his head. Fearing for his life, Garcia claims that he stood his ground--and stabbed Roteta to death.

That's right: Garcia ran down and stabbed an unarmed man to death; pawned the items taken from the dead man; and hid the knife from police. Yet, Garcia never stood trial or faced a jury. How is that possible? Florida's "Stand Your Ground" immunity clause.

Under F.S. 776.032, a person is "immune from criminal prosecution and civil action," if a person justifiably uses deadly force. This is an extraordinarily important aspect of the law, because immunity provides a greater level of protection than an affirmative defense. In the case of an affirmative defense, the accused must go to trial and convince a jury that he acted justifiably. With immunity, the case will never get to a jury in the first place. In order to win immunity, the accused need only convince a judge, by a preponderance of the evidence, that the killing was justified.

In order to show that the killing was justified, the accused must prove that: 1) the defendant was not otherwise engaged in unlawful activity; 2) the defendant was at a place where he had a right to be; 3) the defendant was attacked; and 4) the defendant reasonably believed that he was about to suffer death or great bodily injury. However, if the prosecution can show that the defendant "provoked" the incident, the Defendant loses his right to claim justifiable use of force. From what is publicly known about the evidence in the case, George Zimmerman has a real chance of winning a dismissal. Here's why:

First, George Zimmerman need only convince the judge by a preponderance of the evidence. The preponderance of the evidence standard is the lowest burden in criminal law. Zimmerman need only convince the judge that it is more likely than not that he acted justifiably. When compared with the State's burden at trial, which is to convince six individual jurors that Zimmerman committed the crime beyond and to the exclusion of every reasonable doubt, it becomes obvious that Zimmerman's burden is significantly lower than that of the prosecution.

Second, the lack of eye-witnesses to the incident provides the State with very little evidence to contradict Zimmerman's claims. From what is publicly known about the evidence, the State does not have an eye-witness that can testify that Zimmerman attacked Martin; the State does not have an eye-witness that can testify that Zimmerman didn't walk back to his car; the State doesn't have an eye-witness that can testify that Zimmerman shot Martin while Martin was helpless; the State simply doesn't have an eye-witness to the shooting itself.

Admittedly, the contents of the Medical Examiner's report have not yet been made public. If the Medical Examiner's report indicates that Trayvon Martin was shot from a distance, or shot in the back, then Zimmerman's chances of winning a dismissal decrease exponentially. However, considering the State's woefully inadequate Probable Cause Affidavit, in which the State made no indication that the Medical Examiner's report contradicts Zimmerman's claims, it is unlikely that the Medical Examiner's report will do much to aid the prosecution.

Zimmerman, however, has evidence to corroborate his claims. At least one witness has stated publicly that Martin was "beating up" Zimmerman. The same witness claims that Zimmerman was calling for help. Zimmerman received care from EMT's at the scene, who treated Zimmerman for a bloody nose and for an injury to the back of his head. Video surveillance from the night in question confirms that Zimmerman suffered injuries to the back of his head. In light of Zimmerman's low burden of proof, these corroborating pieces of evidence can prove essential in winning dismissal.

Thus, when looking at the elements that Zimmerman must establish to prove he acted justifiably, it seems reasonably certain that Zimmerman can prove by a preponderance of the evidence that: 1) he was not otherwise engaged in unlawful activity; 2) he was at a place where he had a right to be; 3) he was attacked; and 4) he reasonably feared he would lose his life or suffer great bodily injury. The State has never alleged--nor could they--that Zimmerman's following of Trayvon Martin was an unlawful activity; or that it placed Zimmerman at a location where Zimmerman had no right to be. Similarly, as already stated, the State does not seem to have an eye-witness to the initial physical confrontation between Zimmerman and Martin. Therefore, it will be extremely difficult for the State to contradict Zimmerman's claim that Martin attacked him and bashed his head into the concrete, creating for Zimmerman a well-founded fear of great bodily injury.

This leaves the State with one "ace in the hole:" the claim that Zimmerman "provoked" the incident. However, the "provocation" theory is shaky, at best. F.S. 776.041 provides that the "Stand Your Ground" law is not available to a person who: "Initially provokes the use of force against himself or herself." However, there are two exceptions, both of which favor George Zimmerman.

First, even if Zimmerman "provoked" the incident, he may still justifiably use deadly force, if: "Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant." According to Zimmerman and at least one witness, Trayvon Martin was on top of Zimmerman. What is more, Zimmerman claims that Martin bashed his head on the concrete, which caused Zimmerman to fear death or great bodily harm. If the State cannot contradict this version of events, Zimmerman likely can establish that he "exhausted every reasonable means to escape," (he claims he was pinned to the ground), and he reasonably feared Martin's use of force would "likely cause death or great bodily harm."

Second, it is far from clear that following Trayvon Martin while speaking with the police constitutes "provocation." The second exception to "provocation" states that if the provocateur "In good faith...withdraws from physical contact" and communicates his desire to "withdraw from physical contact," but the other party "continues or resumes the use of force," then the provocateur may rely on the "Stand Your Ground" law. What is important to note, is that F.S. 776.041(2)(b) presumes that the "provocation" includes "physical contact." However, based on the evidence that is public thus far, there is no evidence that Zimmerman initiated "physical contact." What is more, there is no precedent in Florida law indicating that conduct short of "physical contact" provides justification for the use of force, or amounts to "provocation."

Make no mistake: George Zimmerman has a real chance of avoiding a jury. All he has to do is convince a judge, by a preponderance of the evidence, that he acted in justifiable self-defense.

PALM BEACH THANKSGIVING DAY MASSACRE CASE ENDS WITH GUILTY PLEA

October 28, 2011

Paul Merhige pled guilty as charged in the Thanksgiving Day Massacre case, receiving seven consecutive life sentences and avoiding the possibility of execution. While some of the family members of Paul Merhige's victims supported the plea deal, James Sitton, the father of six-year-old Makayla Sitton, the youngest of the victims, expressed outrage over the plea.

There is little doubt that prosecutors involved in the case thoroughly debated, contemplated, and struggled with the prospect of entering into a plea deal with Paul Merhige. Indeed, I have worked beside the prosecutors handling this case, and know first-hand of their tireless dedication to secure justice for the victims of Paul Merhige's brutality. From a prosecution perspective, there are times in which pleading a case to a sentence less than the maximum is the most effective course of action toward achieving justice. In a Capital First Degree Murder trial, the prosecution will not only evaluate the likelihood of achieving a guilty verdict, but will also evaluate the likelihood of achieving a death sentence.

Make no mistake, the chance of Paul Merhige winning an acquittal at trial was extremely low. As previously reported, the defense at trial was going to hinge on a theory of insanity. In the State of Florida, a person is legally insane if: (1) the person had a mental infirmity, disease, or defect; and (2) because of the infirmity, disease, or defect, the person (a) did not know what he/she was doing or its consequences, or (b) although the person knew what he/she was doing and its consequences, the person did not know it was wrong. What is more, under Florida law, all persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

According to earlier reports of the case, Paul Merhige has a long history of mental illness and instability. Thus, the defense would likely have had little difficulty establishing the first prong of the insanity defense. However, the second prong would have proven exceptionally difficult. The State would have presented evidence of Paul Merhige's planning, preparation, and deliberation, all of which establish that Paul Merhige knew exactly what he was doing and the consequences of what he was doing. Furthermore, the State would have presented evidence that Paul Merhige, in an attempt to escape capture, fled the jurisdiction and hid out in a motel in the Florida Keys, illustrating that Paul Merhige knew that what he had done was wrong.

However, Capital First Degree Murder trials are a two-part process. Phase One of the Paul Merhige trial, also referred to as the guilt-phase, would likely have taken weeks. If, as is likely, the jury convicted Paul Merhige, the trial would enter Phase Two, also referred to as the sentencing-phase. During Phase Two, the State would attempt to persuade the jury to recommend a death sentence.

Arguments during Phase Two are framed by Florida Statute 921.141, which provides statutory aggravators and mitigators for the jury's consideration. In the case of Paul Merhige, both the State and the defense would have arguments that numerous aggravators and mitigators apply. In aggravation, the jury could find that Merhige was previously convicted of another capital felony or of a felony involving the use of violence; the defendant knowingly created a great risk of death to many persons; the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification; and the victim was less than 12 years of age. In mitigation, the jury could find that the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; and the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.

In the final analysis, a full trial would not have necessarily resulted in a death sentence. Even if the jury were to return a recommendation of death and the judge was willing to impose the recommendation, Paul Merhige would have appealed the sentence, dragging out litigation for years. Due to Paul Merhige's significant mental illness, it is more likely than not that a death sentence would not stand up to judicial review.