George Zimmerman: Legal Commentary
July 13, 2013:
July 13, 2013: NOT GUILTY. Somehow this is not a huge surprise to those of us who watched this trial closely. The prosecutors for the State of Florida had a lot of difficulty proving their case. Their witnesses kept going south on them and lacked credibility. They seemed to have trouble meeting their burden of proof, again and again without the crucial eyewitness to who was the initial aggressor, there was no way they could prove that Zimmerman did not act in self-defense.
Zimmerman’s team provided an intelligent defense involving some highly technical legal issues, but they also did a nice job explaining this crucial tenet of the American criminal justice system: In a case of he-said, he-said, the defendant gets the benefit of the doubt. That’s how innocent until proven guilty works.
There’s always a moment of pride for lawyers when the Constitution works the way it’s meant to work, but this verdict does not leave us with a sense of celebration. The State did not meet its burden against Zimmerman, but there is still a young man dead who may have very well been attacked based on the color of his skin.
However, this is really a testament to the power of a sequestered jury. Because the women of the jury were kept away from the media and the larger cultural discussions of this case, their decision was made almost in a vacuum. They were influenced by the arguments, evidence and testimony given in open court and nothing else. They did not begin their mornings with editorial columns, talking heads and legal bloggers and go to bed with cable news coverage. The jurors considered exactly what they were legally allowed to consider, no more and no less.
They found the evidence against George Zimmerman lacking. They did their job, and that is justice.
5 key moments from 2nd week of Zimmerman trial
July 6, 2013: Prosecutors rested their case Friday at the end of the second week of testimony in George Zimmerman’s second-degree murder trial. Defense attorneys now have their chance this week to call witnesses and introduce testimony. They called their first two witnesses late Friday.
Zimmerman is pleading not guilty to second-degree murder. He has said he fatally shot 17-year-old Trayvon Martin in February 2012 in self-defense during a struggle at the townhome complex where Zimmerman lived and Martin was visiting. The case has raised issues of profiling, gun control and equal justice under the law.
Here are five key moments from the past week.
STATE RESTS, ACQUITTAL DENIED
After presenting more than three dozen witnesses over two weeks, prosecutors rested their case Friday. They called as witnesses police investigators, Martin’s mother and brother, medical examiners, neighbors who heard the struggle, and a friend of Martin’s who was the last person to talk to him by telephone before his confrontation with Zimmerman. As is typical after the prosecution rests, the defense asked Judge Debra Nelson to acquit Zimmerman, claiming prosecutors’ didn’t prove their case. The judge denied the request.
BATTLE OF THE MOMS
Zimmerman’s mother and Martin’s mother each testified Friday that it was her son who can be heard screaming for help on a 911 call. Both women, testifying at separate times, were expressionless as the 911 call was played in the courtroom. Identifying the voice could be critical in helping the jury determine who the aggressor was during the scuffle.
HOW LONG DID MARTIN LIVE?
Associate Medical Examiner Shiping Bao told jurors Friday that Martin was alive from one to 10 minutes after he was shot in the heart by Zimmerman. Later, he conceded that his testimony was different from a deposition he gave last year in which he said the teen lived one to three minutes after the gunshot. During a prickly cross-examination, Bao said it was possible Martin may have been able to move after being shot. That is important because Martin’s arms are positioned differently in a photo than the way Zimmerman described them being after he fired the shot.
DETECTIVE’S WORDS TOSSED
Called as a prosecution witness, Sanford Police investigator Chris Serino testified he found Zimmerman credible in his description of his fight with Martin. But the judge ordered jurors to ignore his opinion, granting a prosecution request to toss the statement because it is improper for one witness to testify about the credibility of another witness.
ICE CREAM PHOTO
An Instagram photo posted by defense attorney Don West’s daughter became the subject of a prosecution motion for an inquiry. Prosecutors say the photo showing West eating ice cream with his daughters was posted after his tense cross-examination with prosecution witness Rachel Jeantel last week. The caption read, “We beat stupidity celebration cones.” West says the ice cream photo was taken a day before Jeantel testified and has nothing to do with her testimony. He called the prosecution’s motion “irresponsible.”
Copyright 2013 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
June 27, 2013: It’s only a few days in and, we’ve got to say, things are looking good for George Zimmerman. Let’s talk about why:
1. The jury
Usually, a six-person jury is a great thing for the prosecution because it means they only have to convince six people instead of 12. The same is true here, but these six might be inclined to see it Zimmerman’s way.
Our reasoning is this: Without one man of color to explain what it’s like to walk down the street in Trayvon Martin’s shoes, or what it’s like to have strangers instantly assume your intentions are threatening or violent, that perspective might become excluded from the jurors’ understanding of this case.
There are major elements of this case that require the context of racial profiling in the United States to be properly understood, primarily Zimmerman’s initial, unprovoked pursuit of Martin. Without a juror who has had similar experiences to offer his perspective, the jury’s decision may lack that frame of reference. That could tilt the scales in Zimmerman’s favor.
2. The witnesses.
As of the end of the first week, witness credibility has become the prosecution’s greatest hurdle.
Neighbor Jonathan Good testified on Friday. His testimony was eloquent, coherent and had the indicia of credibility; essentially, he made sense and was a good witness. He testified that he saw Martin straddled on top of Zimmerman, punching him in the face.
Martin’s friend, Rachel Jeantel, testified earlier this week. She was, well, less eloquent. In fact, her testimony was downright confusing, and even belligerent and patently false at times. She was not a strong witness for either the prosecution or the defense, and she testified that Martin was on the phone with her while he was walking back, that Zimmerman was stalking Martin and that Zimmerman began the confrontation.
When the jury weighs the credibility of these two important witnesses, they may have trouble crediting Jeantel’s account over Good’s. In terms of witness credibility, Zimmerman is looking pretty good at this phase of trial.
June 13, 2013: With the selection of any jury comes all kinds of questions about whether the chosen jurors will be up to the task demanded of them, and in a case as high-profile as this one, those questions are compounded.
Judge Debra Nelson headed off some of those questions today by ordering the Zimmerman jurors sequestered for the duration of the trial. It’s a dramatic move reserved for only the most dramatic of trials and often used when there’s a credible threat of juror tampering.
What does sequestration mean for the jurors who will be hearing the Zimmerman trial? The best people to ask would be the 17 men and women who were sequestered during the high-profile Casey Anthony trial. (The Casey Anthony trial, for better or for worse, seems to have become a sort of benchmark for Floridian judges, lawyers and media as to how a high-profile case is “supposed to” happen, and Judge Nelson has wasted no time in deploying similar strategies in this case.)
During the Casey Anthony trial, the jurors were sequestered for months. While the news media raged about Anthony’s trial nonstop, they lived a quiet, media-free life in a hotel nearby the courthouse. They were monitored by sheriff’s deputies throughout the day and particularly during their interactions with family visitors, their telephone calls, their reading and their internet use.
They ate two meals a day at the hotel, and courthouse staff provided them with groceries, prescriptions and other necessities,so there was no need for them to travel anywhere other than the courthouse. Shopping was strictly out of the question, as jurors would see newspapers and magazines with news of the trial. Their transportation was also always in the custody of the sheriff’s department deputies.
They were allowed to keep their cell phones, but the use of those phones was also closely monitored by the sheriff’s deputies, and when the phones were not in use, the deputies held on to them.
The jury’s hotel televisions were programmed to only permit channels that were not covering the trial, including ESPN, shopping channels and the Cartoon Network. As the trial gained more publicity, the case began showing up on even some of these networks. By the end of the trial, the jurors were only allowed to watch three channels and pre-approved DVDs.
One challenge for deputies during the Anthony case was getting a juror to a dentist appointment without seeing magazines or discussing the case with the staff of the dentist’s office. Every step had to be pre-planned and carefully managed to ensure that the juror would not be exposed to any trial news, rumors or gossip.
In the end, did the sequestration work? Did Anthony get a fair trial? Anthony’s jury acquitted her, amidst rancorous public outcry. But the difference is that those men and women of the jury saw a totally different case than the rest of the world did.
They only saw, and only heard, the evidence that was legally admissible and that came out during the trial. They did not see the trial that took place in the media, where there are no rules against hearsay or other evidentiary safeguards to ensure due process.
Casey Anthony was guilty in the mind of the public based on the trial in the media. But the trial that took place in the courthouse did not give these jurors sufficient evidence to convict Anthony, and their verdict was due in major part to their sequestration.
George Zimmerman may benefit from the sequestration, as Anthony did, but one thing is certain: The trial you and I watch on Wild About Trial and in the media as a whole will be very, very different from the trial that takes place in the courtroom. And that’s the only one that will matter to these sequestered jurors.
May 1, 2013, 2012: The much-anticipated “stand your ground” hearing has come and gone, not with a bang but with a whimper.
We’re definitely mourning in the Wild About Trial offices. We were so excited to watch the hearing, which was certain to be a “mini-trial” where we could get a glimpse at some of the factual issues that would come to light in the real trial. Plus, we were looking forward to seeing defense attorney Mark O’Mara get his cross-examination on — we’ve heard he’s the best there is.
Basically, we needed a break from the nonstop Jodi Arias loop we’ve been living in.
Setting our disappointment aside, however, there is a great explanation for why O’Mara and Zimmerman waived this hearing. It’s as simple as playing poker: They didn’t want to give away their hand.
As attorneys, sometimes we play the long game, strategy-wise. It’s so tempting to go in for the big win the second we see an opportunity. But ultimately, our clients are usually better served by thoughtful, conservative litigation, and that includes not laying out your best arguments and your best witnesses months before an actual trial.
If they had proceeded with the “Stand your ground” hearing, they would have packaged and gift-wrapped their case like a Christmas present for the prosecution. They know that in order to win, they need to be a little more coy with their best evidence.
Also, had they proceeded, they probably would not have prevailed. Even if they made a very strong showing, no judge wants to be the judge who took away Trayvon Martin’s day in court. Any judge in this country would have listened to the evidence and said, “very good, Mr. O’Mara, but this is up to a jury to decide.” That’s called American justice, folks. We let the jury decide.
December 12, 2012: Once again, George Zimmerman has tried to have the conditions of his bail modified, and once again, a Florida judge has refused.
Yesterday, Judge Debra Nelson refused to allow Zimmerman to remove his GPS monitoring device and refused to relax restrictions on Zimmerman’s travel.
Currently, Zimmerman is allowed to travel to his attorneys’ offices, which is normal, but is otherwise confined to his home county. He wears a GPS monitoring device at all times to ensure that he remains compliant.
It is fairly unusual for a defendant facing homicide charges to be able to make bail at all, but those who are able to do so generally have far stricter conditions. House arrest is a guarantee for the majority of homicide defendants awaiting trial. A lucky few are permitted access to religious services or family member’s homes. To have the run of the county, as Zimmerman does, is a privilege.
However, Mark O’Mara, Zimmerman’s attorney, argued that Zimmerman needs to be able to leave the county periodically for his own safety. O’Mara told the court that Zimmerman endures frequent threats against his safety from the local community.
Judge Nelson did not agree, and we at WAT can’t really blame her. If Zimmerman truly feels threatened, he is welcome to stay at home. He can also call for law enforcement protection against pernicious threats. There are a variety of ways to keep Mr. Zimmerman safe, and letting him leave the county from time to time is not the best way to do that — particularly when, as the judge herself observed, he has used his previous travel allowances to do TV interviews.
September 21, 2012: The big news this week is that DNA results are back, and there’s no trace of Trayvon Martin on George Zimmerman’s handgun. With Zimmerman’s Stand Your Ground hearing scheduled for next week, this piece of the puzzle says a lot about Zimmerman’s credibility but very little about what actually happened.
Recall that when police were investigating Martin’s killing, Zimmerman told them that he and Martin were engaged in a scuffle, and Martin was after his gun. Those statements were part of the reason that Zimmerman was not originally arrested, because police thought that Zimmerman feared for his life and was acting to protect himself.
Now that we know that Martin did not actually come into contact with the handgun, well, that doesn’t necessarily mean there wasn’t a scuffle, but it does mean that Trayvon Martin never pointed George Zimmerman’s gun at him — and that Zimmerman never feared his life would end with a gunshot wound. Not exactly the end-all in evidence, but one more piece in a puzzle that tends to make Zimmerman look like he’s been fudging the truth to protect himself.
September 4, 2012: : Last week a three-judge panel of the Fifth District Court of Appeals in Florida voted 2-1 to grant defense attorney Mark O’Mara’s motion ordering Judge Kenneth Lester to disqualify himself from presiding over the George Zimmerman trial for second degree homicide for the shooting of 17-year-old Trayvon Martin.
It is uncommon for a judge to be disqualified for bias, but Judge Lester made several uncommonly pointed remarks to the defendant. Drawing from the defense’s motion, Judge Lester stated that ”[u]nder any definition, the Defendant has flouted the system” and that “The Defendant has tried to manipulate the system when he has been presented the opportunity to do so.” Judge Lester also commented that he believed there was probable cause to believe Zimmerman committed perjury.
The Appellate court was not asked to determine the accuracy of any of Judge Lester’s assertions but instead limited its review to whether it meets a much lower “legally sufficient” standard. Quite simply, to use the language of the court, the motion must be granted if it “alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.”
Because of judicial sensitivity to any implications of bias (these are JUDGES after all), it is rare to read about a judge flatly calling a defendant a liar. However, the comments made by Judge Lester were in response to conduct he observed in his own courtroom during the bail hearing and not in reference to the facts of the Trayvon Martin shooting.
Our justice system can’t allow defendants to scream “bias” from a mountaintop every time they receive an adverse ruling and claim the judge should be removed because he or she doesn’t believe them!
Are Judge Lester’s comments really sufficient to create a well-founded fear that Zimmerman would not receive a fair and reasonable trial? I’m not sure, but at least 2 appellate judges in Florida believe they are.
The Appellate court admitted their decision was “a close call,” with one dissenting judge writing that Judge Lester’s conduct did not cross the line to require a disqualification order.
It appears here, with such a close issue, that the scales may have been tipped by the facts of the case. This is a well-publicized and highly scrutinized judicial proceeding where the defendant’s credibility is at the crux of the case. Therefore, the Appellate court may be erring on the side of caution here in maintaining as much distance as possible from any alleged (or appealable) improprieties.
Ryan Kerns, Esq., Wild About Trial
July 13, 2012: Zimmerman’s lawyer, Mark O’Mara, filed a motion to disqualify circuit court judge Ken Lester from presiding over Zimmerman’s trial and his “stand your ground” hearing today. The motion was based on statements Lester made in open court which were “disparaging,” according to O’Mara.
During the bond hearing, Lester told Zimmerman, in no uncertain terms, that Zimmerman did not have an ounce of credibility in his courtroom. It is unusual for a jurist to display that kind of open bias against a criminal defendant, particularly in a high-profile case where judicial behavior is scrutinized.
This makes O’Mara’s job easier, however. He knows he needs to get Zimmerman out of Lester’s courtroom, and Lester’s own conduct has made that possible.
O’Mara can win his motion if he shows that Zimmerman has a reasonable fear that he cannot get a fair trial in Lester’s courtroom. Since Lester stated outright that he believed Zimmerman lied, it seems reasonable that Zimmerman would not believe Lester would give him a fair shake.
July 5, 2012: As the defense fought to get Zimmerman’s bond reinstated, it appeared that they took the bond hearing as an opportunity to defend both Zimmerman’s integrity and the strength of his self-defense argument.
As attorneys called witnesses to the stand brought in evidence, the bond hearing resembled a full-blown trial. Mark O’Mara not only called Zimmerman’s father to the stand but also called the paramedic that treated him for injuries the night of the incident. The paramedic claimed that blood covered 45% of Zimmerman’s face.
While O’Mara admits his client was wrong to mislead the court about his finances, he also reminded the judge that Zimmerman has been undeniably compliant with all aspects of the investigation.
In Florida the judge is permitted to look to the strength of the prosecution’s case as one prong in the analysis of setting reasonable bail. If the court had agreed with O’Mara and found Zimmerman’s self-defense argument persuasive, it could have concluded that the lower $150,000 bond was sufficient to guarantee Zimmerman’s appearance in court and at trial.
Ultimately, however, O’Mara’s mini-trial did little to convince the judge that Zimmerman was eligible for the low bond. Zimmerman’s bond was set at $1 million, a clear sign from the court that it was fed up with Zimmerman’s courtroom manipulations.
Alison Triessl on the Bond Ruling:
Seven days after Judge Kenneth R. Lester Jr. heard arguments for and against George Zimmerman’s renewed request for bond, Judge Lester ruled that George Zimmerman’s bail would be set at $1,000,000, a $850,000 increase from the previous bail amount of $150,000. In authoring an eight page ruling, which could only be described as both blistering and parental scolding from the bench, Judge Lester found that George Zimmerman has shown a blatant disregard for the judicial system and, in the court’s words, “. . .circumstances indicate that the Defendant was preparing to flee to avoid prosecution, but such plans were thwarted.”
The factual and legal implications of the court’s ruling are much bigger than the issue at hand. By raising George Zimmerman’s bond to a million dollars, Judge Lester found that George Zimmerman tried to manipulate the system and that the defense had presented false testimony. In a case where the defendant’s credibility and truthfulness are the core issues for the court to consider as this case advances to trial, the judge’s order does not bode well for the defense.
There is no dispute in this case over whether George Zimmerman shot and killed Trayvon Martin. The only issue in this case will be whether or not George Zimmerman acted in self-defense. It is purely a question of credibility. And guess who decides that question in the up and coming “stand your ground” law hearing? That’s right, Judge Kenneth R. Lester, the same judge who found that George Zimmerman has flouted and manipulated the system, will decide if George Zimmerman is telling the truth that he was in fear for his life the night he shot Trayvon Martin.
Although it is too early to call, this legal commentator believes that defense counsel O’Mara should be seriously considering some type of plea for his client before this case makes its way to the jury. With life in prison as a very likely consequence and a judge’s eight page typewritten ruling questioning George Zimmerman’s truthfulness, integrity and candor, a plea deal may very well be the best option for Zimmerman.
From a prosecutor’s point of view, although this hearing went their way, in the long run, a plea deal may also make a lot of sense. The many weaknesses in their case are apparent. To begin, Florida has one of the most liberal “stand your ground” laws in the country, there are no eye witnesses to the actual shooting, George Zimmerman clearly suffered some injuries (the paramedic testified that over 45% of his face was covered with blood), neighbors purportedly heard Zimmerman screaming for help and lastly, let’s not forget that the police who initially responded and investigated this case found that George Zimmerman was acting in self defense and opted not to charge him. All of these factors, which are a challenge to the prosecution, will certainly make their way into the defense arsenal at trial.
April 11, 2012: The Sanford Police have said that they did not, and in fact could not, arrest George Zimmerman because he was acting in compliance with Florida’s “stand your ground” law, sometimes called the Castle Doctrine (as in “a man’s home is his castle”) by legal professionals.
In 2005, under then-governor Jeb Bush, Florida passed a law that allows the use of deadly force in the face of an attack without the requirement that you have to back down first. In other states, a defendant can only claim self-defense if he shows that he tried to flee the aggressive situation first.
Former NRA president and Florida gun lobbyist Marion Hammer explains it like this: “Through time, in this country, what I like to call bleeding-heart criminal coddlers want you to give a criminal an even break, so that when you’re attacked, you’re supposed to turn around and run, rather than standing your ground and protecting yourself and your family and your property.”
Florida is among 24 states that have passed laws saying there is no duty to walk away from the attack before retaliating with lethal force. The law is notoriously unpopular with law enforcement and with prosecutors, who call it the “shoot first, ask questions later” law.
According to Florida courts, a “defendant’s only burden is to offer facts from which his resort to force could have been reasonable” while “the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.”
That means that Florida’s “stand your ground” law grants immunity to people who act to protect themselves if they have a reasonable fear they will be killed or seriously injured. Once a defendant claims he acted in self-defense, the burden to disprove the claim is on the prosecution.
From the perspective of a defendant, that’s a handy-dandy way to get out of a conviction for homicide, assault and battery, assault with a deadly weapon and a host of violent offenses — just tell the court that you were attacked first! And if the other person isn’t alive any more to contradict you, you win.
What’s interesting about this case, though, is that Zimmerman didn’t even have to go tell that to the court. He just told the police, and the police, acting as judge and jury, decided that since it was self-defense, they couldn’t even arrest Zimmerman, much less let him go to court to see if his self-defense story holds water.
Another angle of the analysis is that it might actually have been Trayvon, not Zimmerman, who was entitled to use force under the “stand your ground” law. After all, Trayvon was being pursued and threatened and was in reasonable fear for his life when Zimmerman approached him with a loaded weapon.
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