Every claim by Martin's supporters can now be dismissed with available evidence and testimony.
This is most excellent...
By Bob Owens
The prosecution rested in State of Florida versus George Zimmerman on
Friday, July 5. Supporters of the prosecution’s case believe
neighborhood watch volunteer George Zimmerman to be a “wannabe” cop who
racially profiled Trayvon Martin, stalked him during a cold and rainy
February night, started a fight with him, and then murdered him. Yet
detractors of the state’s case have much evidence with which to
deconstruct those claims following two weeks of the trial.
Claim 1: George Zimmerman profiled Trayvon Martin
Both the prosecution and supporters of their case suggest that George
Zimmerman racially profiled Trayvon Martin — that Zimmerman singled out
Martin because of his race. There is potentially some merit to this
theory, as many of the calls made by George Zimmerman to the Sanford
Police Department did indeed end up involving young black males that
matched Trayvon Martin’s general description, as noted by one of Zimmerman’s neighbors:
“Let’s talk about the elephant in the room. I’m black, OK?” the woman said, declining to be identified because she anticipated backlash due to her race. She leaned in to look a reporter directly in the eyes. “There were black boys robbing houses in this neighborhood,” she said. “That’s why George was suspicious of Trayvon Martin.”
However, the phone call George Zimmerman placed to the Sanford Police
Department’s non-emergency number (NEN) suggests that Zimmerman did not know the race of the person he was calling about as the call was made, and indeed suggests that he was merely calling about suspicious behavior:
We’ve had some break-ins in my neighborhood and there’s a real suspicious guy. It’s Retreat View Circle. The best address I can give you is 111 Retreat View Circle. This guy looks like he’s up to no good or he’s on drugs or something. It’s raining and he’s just walking around looking about.
This is called behavioral profiling, offender profiling, criminal
personality profiling, or other similar terms. This tactic is used
extensively by law enforcement to make an educated guess about an
individual based upon their behavior.
Only when prompted by the dispatcher did Zimmerman claim of Martin:
He looks black.
Zimmerman later stated that he was only able to confirm Trayvon
Martin’s race when Martin approached Zimmerman’s vehicle with his hand
in his waistband.
The available evidence suggests that behavioral profiling, not racial profiling, led to Zimmerman calling police.
Claim 2: Language used in the non-emergency number (NEN) call suggests malice aforethought
The prosecution began their opening statement with prosecutor John Guy angrily repeating one phrase from Zimmerman’s NEN call:
F***ing punks, these ass****s always get away.
Brought up later in the trial, the prosecution inflected anger in the
statement on multiple occasions. The state claims that the statement
showed George Zimmerman was angry and bore “ill will” or “malice
aforethought” towards Trayvon Martin. Indeed, the requirement for a
second degree murder charge hinges on whether George Zimmerman had this
mindset.
Listening to Zimmerman make that statement in the context of his
call, in his own voice, reveals that Zimmerman’s inflection suggests a
man frustrated by the string of burglaries in his neighborhood. At no
point during the duration of the NEN call does Zimmerman’s voice rise to
the level of what most would consider anger. The prosecution makes a
subjective argument here in asserting this proves “ill will”or “malice
aforethought.”
As this is the contention on which a second degree murder conviction hangs, the state has little to no case.
Claim 3: George Zimmerman got out of his truck and followed Trayvon Martin, even though the police told him not to do so
This is a contention made both by the prosecution and the court of
public opinion, but this contention is not based on fact or evidence.
George Zimmerman called the police NEN and spoke with dispatcher Sean
Noffke. Noffke stated that he did not tell Zimmerman not to follow
Martin, as they are trained to not make comments that sound like
commands. His exact words:
We don’t need you to do that.
Noffke further stated during his testimony that by asking Zimmerman
which way Martin was going, Zimmerman could have reasonably interpreted
this as being asked to follow Martin.
Claim 4: George Zimmerman stalked Trayvon Martin with a gun
The word “stalked” is a loaded phrase — and it is also the description of a specific crime, and as such is well-defined.
Nothing George Zimmerman did that night comes close to meeting the
legal definition of stalking according to Florida law. Following someone
in public at a distance is not a crime.
As for Zimmerman being armed: he regularly carried his Kel-Tec PF9 in an inside-the-waistband (IWB) holster at all times except when he was at work.
There is no evidence suggesting that his gun was anywhere but in his holster up until the moment he drew it and fired one shot.
Claim 5: George Zimmerman’s gun had a round chambered, the gun was cocked, and the safety was off
The prosecution and certain disreputable television personalities
assert that the fact Zimmerman carried with a round in the chamber of
his firearm suggests that he had ill intentions.
However, all police officers carry with a round in the chamber, as do a super-majority of concealed carry permit holders. Carrying a pistol with a round in the chamber is standardized practice.
As for the absurd suggestion that he carried his Kel-Tec PF-9 cocked and with the safety off — it is physically impossible to carry a PF-9 in such a manner.
The PF-9 is a double-action-only (DAO) design, and the gun only cocks
during the pulling of the trigger. Because of the DAO nature of the
pistol, it has no external safeties (common in many modern pistols,
including those models most often carried by police officers such as
Glocks and Smith & Wesson M&P-series pistols).
Of course, there is no means for a non-existent external safety to be “off.”
Claim 6: There was no blood on Trayvon Martin’s hands, suggesting that he did not hit Zimmerman
If you watch George Zimmerman’s recreation of the incident for the Sanford Police Department, especially around the 11:22 mark
when he describes Trayvon Martin’s attack on him on the ground, you’ll
note that George Zimmerman does not claim that Trayvon Martin was
punching him in the face beyond the initial punch. Zimmerman claims that
Martin was smashing his head against the concrete, saying: “He grabbed
me by my head and tried to slam my head down.”
The interview at the Sanford Police Department the same day only changes the details slightly at the 31:00 minute mark,
with Zimmerman saying Trayvon punched him before he tried to sit up,
and then Trayvon grabbed his head and began smashing it on the concrete.
While Zimmerman had numerous injuries to the sides, top, and back of
his head, a clinically broken nose as testified to by Zimmerman’s
primary care provider, two black eyes, and a cut to his chin, Trayvon
Martin had just one injury other than the fatal gunshot wound — an
abrasion to the outside of his left hand on the knuckle of his pinkie
finger.
Such a lack of knuckle injuries would be odd if Trayvon had been
throwing regular punches, but is entirely consistent with the use of “hammer fists,”
a kind of blow often thrown from the “MMA-style” position that
eyewitness John Good noted from just 17 feet away. A hammer fist thrown
from a top mount position is similar to the motion of pounding your fist
on a table. It can be a very hard strike, but the strike contact point
is muscular, instead of skeletal, and so the only place where you would
expect an abrasion is where the “meat” of the side of the hand gives way
to bone — either at the wrist, or more likely on the outside of the
hand where Trayvon sustained his singular injury.
Claim 7: George Zimmerman’s wounds were minor, suggesting that he had no reason to respond with deadly force
Lead defense attorney Mark O’Mara cross-examined George Zimmerman’s
primary care provider, physician’s assistant Lindzee Folgate, for more than 20 minutes.
She detailed the various injuries Zimmerman sustained during his
conflict with Trayvon Martin. However, even with the evidence and
testimony regarding his injuries, the fact remains that no one is
required to sustain any injury of any kind to reasonably infer that they
might be under a deadly force attack.
If George Zimmerman ascertained that Trayvon Martin was smashing his
head on a concrete sidewalk, that is assault with a deadly weapon (the
wording is different in Florida law; the principle remains the same) and
meets the reasonable person standard for lethal force self-defense.
Claim 8: George Zimmerman’s statements to police after the shooting were inconsistent
Sanford police officer Christopher Serino conducted the bulk of the
interviews of George Zimmerman and was present for the walk-through. He
testified on the stand that the minor inconsistencies in Zimmerman’s
testimony did not give him cause for concern, and that they were
consistent considering the trauma of the event. Serino said during his
cross examination that he thought George Zimmerman was telling the truth.
Claim 9: George Zimmerman’s educational history suggests that
he was cognizant of the law and wanted to be an officer (“wannabe”
cop/vigilante)
Zimmerman indicated to various people at various times an interest in
becoming either a law enforcement officer or even a prosecutor. The
prosecution’s assertion that such an interest is grounds for a second
degree murder charge is both extremely flimsy and circumstantial.
It is impossible to reasonably argue that the state presented a case
that should result in a murder 2 or manslaughter conviction. However,
and of course, a conviction is still possible.
Disorder: Judge Recesses Zimmerman Trial, Excludes Damning Evidence
Trayvon Martin's phone had hundreds of messages discussing criminal behavior, including trafficking black-market firearms.
The State of Florida vs. George Zimmerman took a wild turn
late Tuesday evening, as defense attorney Don West got in a heated
conversation with Judge Deborah Nelson just before 10:oo PM. Nelson had
just expressed her intent to block testimony and evidence recovered from
deleted messages on Trayvon Martin’s cell phone.
A forensic expert discovered more than 600 items on Trayvon’s cell
phone, including texts and photos between Trayvon and other people with
specific references to criminal activity — particularly fighting, drugs,
and firearms.
Everyone in the courtroom likely understood which “someone” deleted
the evidence, but attorneys and Judge Nelson were very careful not to
name Martin.
The forensic expert testified that he recovered multiple
conversations between Trayvon Martin and specific family members and
friends (Levondrea, “Diamond”, which is one of Rachel Jeantel’s
nicknames, and others) discussing multi-round street fights and
schoolyard fights in which Trayvon Martin had participated. Martin’s
half-brother, Demetrius Martin, even asked Trayvon when he would teach
Demetrious how to fight like him. Trayvon Martin’s family appeared to
know Trayvon was a street fighter.
Most troubling, Conner found multiple conversations — between four
and six — where Trayvon discussed attempting to buy black-market guns.
The guns Martin discussed acquiring included a Smith & Wesson
Sigma pistol and a .38 Special revolver. One conversation showed Martin
trying to sell a .22 revolver, suggesting he was already in possession of it.
One of the participants in one of the gun conversations was a Fulton,
possibly a relative on his mother’s side. All of these conversations
took place immediately in the days and weeks before Trayvon Martin left
Miami for Sanford.
The reason these conversations were hidden until recently is that the
deleted texts were created by a password-protected hidden app designed
to beat police surveillance by hiding data and data types as different
kinds of files than what the police would be looking for.
The key facts in this development:
- Trayvon Martin’s phone was password-protected. The password-protection starts automatically after being left unattended for a certain amount of time.
- The “stealth” app designed to further conceal Trayvon’s conversations about weapons, fighting, drugs, and pornography had an additional layer of password protection. He had to log into the phone first, and then to this app to access these conversations or delete them.
- There were thousands of messages, texts, photos, tweets, Facebook posts, and other bits of evidence hidden this way.
- People who participated in these conversations are all documented by screen name, real name, phone number, social media personas, etc. They are all easily identified and could be deposed – if the defense is given time to do so.
- The State hid this evidence until right before the beginning of the trial, when the prosecution’s Wesley White came forward to present testimony that the State was hiding and may have destroyed evidence. The defense has had no time to recover this data and to depose every witness.
This led to the showdown between incredulous defense attorney Don
West, who can’t believe what he’s hearing, and Judge Deborah Nelson, who
puts the court in recess and exits — as the defense is still trying to
talk to her. Watch below:
The Backwards Trial: Zimmerman Prosecutors Stumble as Defense Wraps Up
Also, Judge Nelson references case law that appears to contradict her, and a dummy takes a beating.
By Michael McDaniel
Judge Debra Nelson
continues to give the defense worthwhile arguments for appeal, if necessary.
After a Tuesday night
that saw her decidedly injudicious rant and her storming off the bench as the
defense tried to address her, Wednesday morning arrived with little improvement
in Nelson’s temperament. Nelson excluded text messages and tweets from Trayvon
Martin’s phone referencing attempts to buy and sell illegal guns, fighting —
including at least one message about punching people in the nose and making
them bleed, and a large number of messages about Martin’s drug use. In her
frantic commentary on admissibility late Tuesday evening, Nelson expressed
concern that someone else could have sent the text messages and social media
posts made by Martin, so she wasn’t going to allow any of them.
She also ruled that the
animated video commissioned by the defense would not be allowed into evidence
(the defense can use it in their closing argument, but the jury cannot have it
for deliberations). She gave no substantive explanation for her rulings other
than to suggest that she read the Lumarque
case.
The following is the
section of the Lumarque decision most applicable here:
On the appeal, we conclude the trial court
abused its discretion by concluding that exhibits 5-9 and 11-15 are not
admissible in the trial of this case. The State sought to admit into evidence
two sexually suggestive images and eleven text messages between the ex-wife and
a boyfriend, found on the defendant’s cellular telephone. The ex-wife testified
that prior to the assault by the defendant, he showed her the two images and
one of the text messages. There also is evidence in the record from which one
might infer the defendant examined the ex-wife’s cellular telephone on the
morning or afternoon before the alleged incident when he was alone in the house
for a brief period after returning their children back to his ex-wife’s home.
At an in
limine hearing, the trial court found the two images and one text
message the ex-wife testified to admissible, but concluded the remaining
exhibits inadmissible as the ex-wife could not authenticate them. The court erred. The images and text
messages were found on the defendant’s cellular telephone, seized pursuant to a
search of the defendant’s home through a warrant shortly after the alleged
incident. This fact, testified by the State’s forensics expert, is sufficient
to authenticate these exhibits. U.S. v. Caldwell … (holding that
authentication of evidence merely requires a finding that the evidence is what
it purports to be). It also is immaterial that the ex-wife could not identify
each of the messages being shown to her on the night of the incident. Regardless
how these images and text messages might have found their way onto the
defendant’s cellular telephone, the State has presented sufficient evidence at
this stage that these exhibits constitute evidence of motive. Craig v. State …
(stating that evidence of motive is admissible when it would help the jury
understand other evidence). Accordingly, they are admissible into evidence at
the trial of this case upon the State laying the proper predicates.
Under Judge Nelson’s
standard, it would be impossible for any electronic communication to ever be
admitted because it would always be the burden of the party seeing to introduce
the evidence to prove a negative. They would need to establish that unknown,
unnamed persons did not surreptitiously access a Twitter account or a
cell phone, etc., rather than those seeking to exclude having to introduce
evidence to suggest the postings were not authentic. This is an unassailable
and absurd standard. With it, nothing handwritten or electronically produced
could ever be introduced into evidence. Who could prove conclusively that a
deceased person’s writings were not produced by someone else?
In the Zimmerman case,
there are thousands of messages and photos, all on Trayvon Martin’s phone and
all done in his name or handle. The prosecution had those messages since
January 2013, but did not turn them over to the defense until June 4, just
before the trial started. The delay denied
the defense the opportunity to analyze them and to locate and depose witnesses.
Don West brought this up, and also mentioned the prosecution’s lying to the
court about this evidence.
West told the judge
Martin’s phone was double-encrypted. It is surpassingly unlikely anyone else
forged anything, yet Judge Nelson exclaimed that someone could have gotten
Martin’s two passwords.
Clearly, under Lumarque
the evidence is admissible. Yet Nelson, who claims to have read the case,
excluded it.
————————-
Wednesday’s other events
and witnesses:
Dennis Root, Use Of
Force Expert:
Root, a former career
police officer, lacked the easy, attractive manner of Dr. DiMaio, but was
reasonably effective in supporting Zimmerman’s account. He was arguably most
effective in providing a solid, impenetrable barrier into which the prosecution
repeatedly ran headlong. Among the most important things Root affirmed was that
there was no evidence of injury from Zimmerman’s small plastic flashlight on
Martin’s body. This is a line of questioning pursued by the prosecution in the
last few days suggesting they intend to claim it during closing, despite having
no evidence that Zimmerman hit Martin with that “weapon.“ Root also portrayed
Martin as the aggressor, raining blows down on Zimmerman, who was unable to
respond. Root explained that Zimmerman’s statements and actions indicated that
he was non-confrontational and lacked “the warrior mindset.”
Root also testified that
Zimmerman’s few obscenities directed at the criminals that had been preying on
his neighbors were not signs of ill will or hatred, but simple frustration
“about criminals in general.” In response to O’Mara’s specific questions, he
also testified that there was nothing dangerous or reckless in Zimmerman’s use
of his handgun. Root also testified that he normally testifies for the
prosecution, saying:
Yes, this is the
complete opposite from where I usually sit.
O’Mara was also able to
elicit a comment about the law enforcement profession, as he often has in this
trial. Root said:
It’s a very noble career
and I would recommend it to anybody.
One of the primary rules
for any lawyer is never to ask a question of a witness to which one doesn’t
know the answer. Prosecutor John Guy did just that, and it bit him. He also may
have been the unwitting originator of a second legal rule: “Don’t play with
life-sized dolls in court.”
Guy produced a
life-sized, foam, dark gray human doll and dropped it to the floor, and kneeled
astride it in an attempt to demonstrate that Zimmerman could not have drawn his
gun, and could not have shot Martin as he claimed. This was despite the
testimony of multiple witnesses, not the least of which was DiMaio, that this
was the likely scenario. Guy also tried to get Root to say it was possible that
Martin was screaming — for 40 seconds — because Zimmerman was pointing a gun at
him.
Root exploded the first
legal rule by replying that if he were in Martin’s position, astride Zimmerman
and beating him, and Zimmerman suddenly produced a gun, he wouldn’t scream but
would instead go for that gun, just as Zimmerman has consistently maintained.
On re-cross, O’Mara blew
up the second legal rule on Guy. He asked with a wry smile, “Can I have your
doll?” He promptly knelt astride the doll in front of Root just as Guy had
done. But O’Mara began to violently whack the doll’s head against the floor,
getting Root to say that such a beating could have produced Zimmerman’s injuries.
It was a dramatic tactic, and a sight no jury could forget.
Having his flashlight
theory taken from him, Guy — on re-redirect — couldn’t resist another run at
the first legal rule. He asked if Zimmerman had other options other than using
his gun. Root replied:
No. Given the totality
of the circumstances, I don’t believe Zimmerman had any other option.
This is, in a sentence,
the proper explanation of and justification for self-defense.
Guy had no reply, but he
wasn’t done. After a brief last series of questions by O’Mara, Guy took a
final, foolish run at the first rule and demanded that Root tell him the exact
moment when Zimmerman was struck in the nose. Notice that this question
presupposes his acceptance that Zimmerman was struck in the nose, something the
prosecution has continually tried to deny. Root replied in his consistently
deadpan manner:
It’s hard to say; he was
hit a bunch of times.
Olivia Bertalan, former
Retreat At Twin Lakes resident:
She provided a
nightmarish story to which women may relate (recall, we have an all-female jury
here). An attractive and sympathetic young woman wearing glasses, on August 3,
2011 Bertalan was home during the day with her infant child when someone began
knocking repeatedly on her front door. Alarmed, she retreated upstairs where
she could look out, and saw two young black males who were obviously casing her
home. She called the police — as the burglars broke into her home. She locked
herself in her child’s bedroom, and — scared to death — stood holding her child
on one hip and a pair of “rusty scissors” in her other shaking hand.
Bertalan described one
of the burglars rattling the doorknob of the room in which she was hiding.
Fortunately, the burglar
did not break into the room. The police arrived only after the burglars made
off with her camera and laptop and other items. There was a semi-happy ending
when one of the burglars, a then-juvenile Emanuel Burgess who lived nearby, was
identified and caught. Bertalan moved out shortly thereafter, and Burgess was
released only to be arrested again shortly after she left the neighborhood.
During her retelling of
this story, her voice quavered and she shook. She is obviously still
traumatized by the ordeal.
Bertalan also testified
that, at the suggestion of the police, she bought a dog. Media talking heads
often characterize testimony as “powerful.” Bertalan’s was indeed powerful
because it was real, raw, and draped in honest emotion. She likely had the
effect on the jury O’Mara sought: she convinced them the criminal threat
against her neighborhood was real and deadly dangerous, therefore in viewing
Martin suspiciously, Zimmerman was acting reasonably, even nobly.
On cross, Prosecutor
John Guy tried to question her about Zimmerman on topics clearly outside the
scope of her testimony. The jury was removed and he continued that line of
questioning. It was a clever trap by O’Mara, and Guy smugly walked right into
it. He got Bertalan to say that shortly after the home invasion burglary,
Zimmerman came to her home and gave her his phone number. Zimmeman also spoke
with her about the incident some 20 times. Guy was foolishly trying to suggest
that Zimmerman was a “wannabe” cop, a busybody.
After the jury returned,
Guy repeated the questions and got the same answers from Bertalan. O’Mara
sprung the trap. Bertalan testified that she really appreciated Zimmerman’s
attention and concern, and explained that his subsequent contacts were for the
sole purpose of checking in to see that she was okay.
Zimmerman even told her
that if she was afraid, she could go to his home and stay with his wife Shellie
whenever she wanted, something else that meant a great deal to Bertalan.
Zimmerman also brought
her a lock to secure her sliding glass patio door, the door the burglars used
to enter her home and a common security problem in the neighborhood.
O’Mara finally asked:
“Was George Zimmerman’s behavior helpful to you?” “Very,” she
replied.
Robert Zimmerman Sr.,
George’s father:
A soft-spoken man, he
was the final defense witness and testified only to identifying George’s voice
on the Lauer 911 recording. He heard it in the prosecutor’s office in the same
building, and upon hearing it, told them “absolutely, it’s my son George.”
De la Rionda handled
cross, but accomplished nothing for the prosecution, and the defense case was
done.
Earlier in the day,
Judge Nelson badgered Zimmerman — over the strong objections of Don West —
demanding to know if he intended to testify. There is clearly no love lost
between West and Nelson. It initially appeared that he might testify, but
ultimately decided not to do so.
This too may have been a
defense ploy. When it appeared that he might testify, the camera rested on
Special Prosecutor Angela Corey, whose head was down in a laptop. Doubtless she
was anticipating her assistants having the chance to question Zimmerman, but it
was not to be.
O’Mara made another
argument for acquittal, and though very brief, he hit exactly at the heart of
the issue by suggesting that she compel the prosecution to “identify their
factual scenario, their theory of the case, anything, articulating in some way
Zimmerman’s guilt.” As expected, Nelson denied O’Mara’s motion.
The prosecution’s
initially called Adam Pollock, the owner of the gym where Zimmerman trained.
Pollock had earlier testified
that Zimmerman had virtually no martial skills and was in terrible shape.
Mantei began by asking questions that were not in any way a rebuttal, a move
that could be nothing other than a bad faith attempt to smear Zimmerman in any
way possible. O’Mara objected and Pollock was eventually excused without
testifying at all.
They intended to call a
second witness, but changed their minds. Mantei then tried to introduce a
witness having to do with an alleged bad act by Zimmerman committed eight years
earlier — a clearly inadmissible matter, and a witness having nothing to do
with rebuttal. O’Mara quickly explained that there was no bad act — Zimmerman
has no criminal record — but Nelson was, as usual, reluctant to make a decision
and left the matter hanging.
John Donnelly, the
retired physician’s assistant and Vietnam combat medic whose testimony was so
effective in identifying Zimmerman’s voice, was the subject of an attempt by
the prosecution to exclude his testimony. It seems that Donnelly sat in on the
trial for several hours over two days in violation of the sequestration rule.
There was a lengthy
hearing on that matter, with the prosecution accusing the defense of all manner
of mischief. It was quickly discovered that not only did the defense have no
idea Donnelly was there, when West saw him on the second day, he told Donnelly
he would have to leave. Donnelly, apologizing profusely, did.
West explained that in a
trial with some 200 witnesses — they had no idea if they would use Donnelly or
not — he must have slipped through the cracks and was not notified of the
sequestration rule. West took responsibility for that omission, though he
clearly had nothing to do with it. It was also clear that Donnelly’s testimony
was unaffected by the witnesses he heard, so Nelson dropped the matter, leaving
Donnelly’s devastating testimony on the record.
This is another example
of bad faith from the prosecution. In normal trials, this sort of thing is
simply dealt with informally by both sides. They bring in the judge only if
there is some compelling evidence of intentional malfeasance. This is
particularly true in trials with large numbers of witnesses where it is very
easy for witnesses not to get the message of sequestration or to misunderstand
it.
Still to come are the
closing statements, and a number of other unfinished motions and maneuvers put
off by Judge Nelson.
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