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09 July 2013

Deconstructing the Trayvon Martin Narrative: Nothing Left to Argue?

 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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