George Zimmerman: Court Sets $150,000 Bail: UPDATED With CBS Courtroom Video

April 20, 2012

I am having trouble embedding the CBS courtroom video of George Zimmerman’s apology to Trayvon Martin’s parents and his cross examination by prosecutor Bernie de la Rosa, so here is a link.

If that does not work, copy and paste this youtube link into your browser:

As I predicted two days ago, the court set bail in the amount of $150,000 (I actually predicted at least $100,000). The other conditions of release are almost identical to the conditions that I predicted.

Brian Bracker of the Guardian reports the conditions are:

1. Home confinement with electronic and GPS monitoring — he is going to be staying at a secret (to us) location;

2. No possession of firearms;

3. No contact with any member of Martin’s family;

4. Attend regular meetings with pretrial release officers.

He testified at the bail hearing, which is unusual, and apologized to Trayvon Martin’s family.

Zimmerman’s mother testified at the hearing. His father and wife testified by telephone.

Dale Gilbreath, the detective who signed off on the affidavit of probable cause, also testified at the hearing. When cross-examined by defense counsel, Mark O’Mara, he admitted that, instead of saying “Zimmerman confronted Martin,” he should have used a different word.

When prosecuting attorney, Bernie de la Rionda, asked him whether there is any evidence that suggests Zimmerman’s statement to the police is not true, Gilbreath answered, “Yes.”

He did not elaborate and neither counsel pressed him further.

I think we can reasonably infer that the prosecution’s evidence for Zimmerman confronting Martin is circumstantial and Mark O’Mara knew what Gilbreath’s answer would be before he asked it.

The first rule of cross examination is: Never ask a question unless you know what the answer will be.

That was an extremely dangerous question to ask, unless he knew how Gilbreath would answer it. Therefore, he interviewed him before the hearing.

Mark O’Mara continues to impress. Putting your client on the stand at a bail hearing in a murder case and having him apologize to the victim’s family is thinking way outside the box. I don’t know of any lawyer who has done that before or even thought of doing that before.

Bernie de la Rionda’s question eliciting Gilbreath’s statement that they have evidence that Zimmerman lied in his statement to police is the equivalent of asking your detective if we have the trump card.

Yet he did not ask what it was and neither did O’Mara.

Why not?

This is a bail hearing and de la Rionda is not going to show his cards now. He does not want to do anything that might stir up more pretrial publicity and then be accused of poisoning the pool of potential jurors. That would be prosecutorial misconduct. He did not have to play that card, so he did not.

O’Mara has reviewed the discovery and likely knows what Gilbreath’s answer would have been. He knew it could not possibly help Zimmerman, so he did not ask.

Smart moves by both lawyers.


Here’s a somewhat different report on the bail hearing from the AP:

The hearing provided a few glimpses of the strengths — and weaknesses — in the case being built by prosecutors.

Dale Gilbreath, an investigator for the prosecution, testified that he does not know whether Martin or Zimmerman threw the first punch and that there is no evidence to disprove Zimmerman’s contention he was walking back to his vehicle when confronted by Martin.

But Gilbreath also said Zimmerman’s claim that Martin was slamming his head against the sidewalk just before he shot the teenager was “not consistent with the evidence we found.” He gave no details.

In taking the stand, Zimmerman opened himself up to questions from a prosecutor, who grilled him on whether he made an apology to police on the night of the shooting, and why he waited so long to express remorse to Martin’s parents.

Zimmerman said he told police he felt sorry for the parents. He also said he didn’t say anything to them sooner because his former attorneys told him not to.

NOTE: By testifying that he did not apologize earlier because his previous lawyers told him not to do so, he has arguably waived his attorney–client privilege as to that communication, which means that his previous attorneys may have to state whether they told him that.

What would you do if you were one of his lawyers, you were approached by investigators who asked you if you gave that advice, and you never told him that because he never asked?

There is another conflict. He testified that he thought Trayvon was about the same age as he is, which is 28-years-old, but he told the dispatcher when he called to report the “suspicious” person that he was an older teen (h/t to Tuezday at Firedoglake).

Alzheimer’s Disease: Up Close And Personal

April 20, 2012

I am an only child and, even though I had an unpleasant childhood for a variety of reasons that are not relevant to this post, I still loved them and when their health foundered, I did the best I could to ameliorate their suffering.

My dad succumbed to Alzheimer’s and my mother had a stroke after she returned home from dropping him off in the locked Alzheimer’s Unit of a nursing home. She laid on the floor in the garage for 7 days before a neighbor found her. She only partially recovered her mental faculties.
He lived another six years and she lived another seven.
I was living in Seattle at the time and when I got the news from an officer with the Fire & Rescue Department, I got on the first available flight to Myrtle Beach, SC.

He did not know where my father was and I did not find out until I arrived at the hospital and, in one of her lucid moments, my mother told me what she had done.

I knew his forgetfulness had been getting worse, but I did not know how bad it had gotten. We did not talk much because of the poisoned past. She told me that he slapped her and shoved her to the floor after she criticized him for forgetting something she regarded as important.

That was the first and only time that he hit her in their 50+ year marriage and it would be the last time. She dropped him off at the Alzheimer’s Unit later that day.

I went to see him. It was like a jail and I had to be admitted to the unit by a security guard, who unlocked the heavy steel door and admitted me to a large hellish visiting area.

Many patients wearing soiled clothes were strapped in wheelchairs. Unable to hold their heads erect and focus on a blaring television set in a corner of the room, their heads lolled from side to side as drool dripped from their mouths and unintelligible sounds emitted from their throats. The place smelled like shit.

I saw my father at the opposite end of the room talking to an unresponsive man about something. I walked up to him not knowing what to say. He noticed me approaching. He stopped in mid-sentence and faced me.

He smiled in recognition and relief. He said, “Frank, thank God you’re here. Let’s get out of here.” He put his arms around me and hugged me tight. When he let me go and stepped back still holding my hands, I saw that his eyes were moist with tears.

My name isn’t Frank. Frank was his older brother and he died 26 years ago.

My father did not know he had a son.

We chatted for awhile as I tried to fit into the conversation. I don’t recall what I said, what we talked about, or how long we talked. I remember being overwhelmed by the horror of the place and the stranger whom I used to call “Dad.”

Suddenly, I couldn’t take another minute. I released his hands and said, “I have to go the bathroom. I’ll be right back.”

I turned and walked away. I spotted the security guard and struggled to keep from running toward him and the door over which he presided.

“Let me out,” I said. “I can’t take it anymore.”

He laughed and said, “You’ll get used to it after awhile.”

I never did.

I did, however, arrange to place my mother and my father in the nursing unit of a retirement home that was a much better facility and I visited them as often as I could over the next several years as inch-by-stubborn inch they declined and briefly rallied, declined and briefly rallied, until they were no more.

My father never spoke my name and never knew who I was.

My mother criticized him for it, but he soon forgot who she was and spent the last year of his life strapped into a bed that they used to transport him back and forth between his room and the day-room.

Sometimes they left him in the hall across from the nursing station so they could keep an eye on him as they came and went.

They called me one day and told me that he died peacefully.

I buried him and then I went home.

I was there a year later when my mother passed.

I held her in my arms and kissed her goodbye when she stopped breathing.

I buried her and then I went home.

Judge Recuses Herself In Zimmerman Case

April 18, 2012

As I predicted in my last post, Judge Jessica Recksiedler of the Seminole County Circuit Court in Florida signed an order today granting George Zimmerman’s motion to recuse her from presiding over the Zimmerman case.

I did not need a crystal ball or a book of spells to predict the outcome since, by advising counsel that she had a potential conflict of interest about which they might not have been aware without her telling them, she basically invited the motion to recuse and I do not believe she was the least bit offended by the motion.

The potential conflict is that her husband is employed by a criminal defense lawyer, Mark NeJame, who has been a television commentator about the case. Someone in Zimmerman’s family contacted him about representing Zimmerman after Zimmerman fired the two lawyers who were representing him. He declined to take the case, in part because he had expressed opinions about it on television, and he recommended several lawyers, including Mark O’Mara, whom Zimmerman subsequently retained.

I do not believe Judge Recksiedler had an actual conflict of interest, but I would be surprised to discover that she and her husband had not discussed the case, especially after NeJame was contacted about representing Zimmerman before the prosecutor, Angela Corey, charged him with murder second degree.

Judges are supposed to abide by a code of judicial conduct and, in addition to recusing themselves when they have an actual conflict of interest, such as a financial interest in the outcome of a case before them, they are supposed to maintain the appearance of fairness and impartiality, regardless of what they may think about a case, the lawyers, and the litigants. Since there is a possibility that someone might question her impartiality, due to her husband’s connection to NeJame, she decided to disclose it in order to maintain the appearance of fairness.

For all I know, she might not have wanted the case anyway because she is relatively new to the bench and inexperienced. She may have used the situation to get out of it. I do not know that for certain and merely present it here as a possibility.

Jennifer Preston of the New York Times reports that,

Judge Recksiedler will be replaced by Judge Kenneth R. Lester Jr., 58, who was first elected to the court in 1996. Mr. Lester graduated from the University of Central Florida with a bachelor’s degree and a master’s degree in accounting. He received a law degree from the University of Florida.

Zimmerman’s motion to be released on bail pending trial is set for Friday. I imagine Judge Lester will proceed with the hearing, unless he has a conflict with his schedule that necessitates rescheduling the bail hearing. Those types of hearings do not usually require a lot of preparation time for a judge.

Judge Lester will also have to schedule a hearing for the pending motion filed by various news organizations, including the Miami Herald, to unseal the court file.

The issues at the bail hearing will be whether Zimmerman is a flight risk or a danger to the community and whether there are conditions of release that could be imposed that would not endanger anyone in the community and assure that Zimmerman makes all his court dates.

Since he turned himself in, I think he’s shown that he probably is not a flight risk and it’s possible that he might be released subject to the following conditions:

1. Reside at home and wear an ankle bracelet and GPS locator at all times;

2. Not possess a firearm;

3. Remain in contact with his lawyer;

4. Check-in daily with the court’s pretrial supervision officer and follow any orders the officer might impose; and

5. Post a cash bail in some substantial sum of money (apparently, murder second degree is not a bondable offense).

A bond is a promise to pay a certain sum of money in the future, if the defendant fails to show up in court when he is supposed to be there.

Let’s say bail is set in the amount of $100,000. It probably will be substantially higher but $100,000 is an easy number with which to work, so I will use it. Zimmerman could get out by posting $100,000 cash with the Seminole County Circuit Court Clerk, or if the offense were bondable, he could post an approved unencumbered real estate property bond with a fair market value of at least $100,000 together with a quitclaim deed quitclaiming the property to the Clerk of the Court and recording the transaction with anything but MERS. Yes, that’s snark. He would record the transaction in the county recorder’s office.

Or he could post 10% of the bail ($10,000 cash) with a bail bondsman and property worth $100,000. When someone goes with a bail bondsman, the bondsman posts its promise, or bond to pay the full amount of the bail to the Clerk of Court, if the defendant fails to make his court appearances. The 10% cash amount up front is called the principal and bondsman gets to keep that as the fee for posting the bond, regardless if the defendant makes all of his court appearances.

The property that secures the bond that the bail bondsman posts with the Clerk is called the security or collateral and, if the defendant makes all of his appearances, the bail bondsman will return it to the person who posted it when they showed up with the 10% cash fee.

Since murder is not a bondable offense in Florida, however, the bail bondsman option is unavailable to Zimmerman and he will have to come up with the cash.

But he has to pay the lawyer’s retainer first and I imagine that it is substantial, probably well in excess of $100,000. Whether there will be enough money left over to post a cash bond is anybody’s guess. I imagine that there has been some mad scrambling going on in the Zimmerman family to get together enough cash to do both. We will have to wait and see what happens.

News Organizations File Motion To Unseal Court File In Zimmerman Case

April 16, 2012

As I predicted late last week after I found out that the court file in the George Zimmerman case was sealed at the request of the defense, various news organizations in Florida, including the AP and the Miami Herald, filed a motion today in the Seminole County Circuit Court to unseal the file. The file contains a full set of police investigation reports, the autopsy report, and transcriptions of witness statements.

The reports were in the file because they become public information after a case has been filed, unless sealing the file is necessary to protect the defendant’s right to a fair trial and there are no other alternatives that will accomplish the same objective. Pursuant to Press-Enterprise Co. vs. Superior Court of California, 464 U.S. 501, 510 (1984), must identify and articulate an overriding interest based on findings that a seal is essential to preserve higher values and is narrowly tailored to serve that interest.

The news organizations contend that the court did not follow the proper procedure and its blanket order is too broad to meet the “narrowly tailored” requirement.

This matter has not been scheduled for a hearing because defense counsel has filed a motion to recuse the judge to whom the Zimmerman case has been assigned.

Mark Schneider at the Huffington Post describes the situation this way,

Circuit Judge Jessica Recksiedler last week revealed the potential conflict in the case that relates to her husband, who works with Orlando attorney Mark NeJame.

NeJame was first approached by Zimmerman’s family to represent the neighborhood watch volunteer. But the attorney, who also is serving as a CNN legal analyst in the case, declined and referred them to O’Mara.

“What I don’t want to happen is to wait a month or two, and then we find out that what we thought is a potential conflict is an actual conflict,” O’Mara told reporters outside the Seminole County Criminal Justice Center.

Having been in Mark O’Mara’s (Zimmerman’s lawyer) situation several times, including the Green River Killer serial murder case, I know he is concerned about the effect that some of the information in the court file might have on Zimmerman’s right to be tried by a fair and impartial jury, if that information becomes public before the trial.

As an onlooker, for reasons that I have previously expressed, I am most interested in the autopsy report, forensic reports on blood spatter, the gun, and the 911 tapes.

O’Mara’s concern is legitimate, given the firestorm of publicity about this case already. It will be interesting to see how the judge who eventually decides the motion splits the baby between Zimmerman’s right to a fair trial and the public’s right to know that is protected by the First Amendment.

A hearing on the request to unseal the file cannot be scheduled for a hearing until the motion to recuse is decided.

Can You Direct Me To The House Of The Reasonable Man?

April 14, 2012

Many of our civil and criminal laws are based on the theoretical concept of the reasonable person and what he or she would do in any given situation. We establish standards of conduct based on this theoretical reasonable man or woman and impose civil or criminal liability and consequences on people who intentionally, knowingly, recklessly, or negligently violate those standards.

This concept of reasonableness can change over time as people’s concepts of what constitutes reasonable behavior in any given situation change.

For example, our common law comes from Great Britain and the Brits are not as violent and gun-loving as Americans. According to their cultural concepts, a reasonable person would attempt to retreat from a volatile situation before using force in self-defense. Hence, the duty to retreat at common law that we kept after we won the war for independence.

Conditions in the western frontier of our country were not as civilized and sedate as back east. Out west the thinking was real men stand their ground and shoot your ass, if you mess with them, so the western states eliminated the duty to retreat. Their concept regarding what a reasonable man would do when threatened with violence was significantly more aggressive than back east.

As our society has become more suspicious and fearful of strangers, more and more people now appear to believe that a reasonable person would stand their ground meeting violence with equal or greater violence. The NRA and many people now think that the solution to our violent society is more people armed with guns.

Recently, in a blog within these hallowed halls, a person said we should require all teachers to carry guns in order to stop violence in schools. I think that idea is absolutely crazy and about as unreasonable as unreasonable can get, but there is no denying that a lot of people believe it’s reasonable. Fortunately, I think I am still on the majority side of this issue.

Whenever you see the word “reasonable” in a law, it means an objective, as opposed to a subjective standard. In other words, reasonableness is not based on the perception of any specific identified person, which is a subjective standard. It’s based on the actual facts and circumstances of a given situation and what a hypothetical reasonable person would do in that situation.

As I have said, Florida’s SYG law is not a license to kill. Yes, a person can stand their ground. Yes, they have no duty to retreat, Yes they can use force, including deadly force in self-defense, but only if a reasonable person in the same situation (i.e., the objective reality out “there,” as opposed to a particular person’s perception of it) would do so, AND they cannot use more force than is reasonably (i.e., there’s that damn word again) necessary to prevent being assaulted. A person can use deadly force in self-defense only if the objective facts and circumstances of the situation they are in, as opposed to their perception of it, are such that a reasonable person in the same situation would believe it necessary to use deadly force to prevent being killed or suffering serious bodily injury.

Trayvon Martin was unarmed. That is an objective fact and circumstance. George Zimmerman was armed with a gun and following him. That is an objective fact and circumstance. They had a physical confrontation. That is another objective fact and circumstance. These are undisputed facts.

One of them started the fight. That is another objective fact and circumstance, but we do not know for certain who did. The identity of that person is a disputed fact and there have been many arguments about it.

I believe Zimmerman did because he followed Trayvon against the police dispatcher’s request. He thought Trayvon was a burglar casing the neighborhood and he was frustrated because he thought Trayvon was going to get away before the cops arrived. We know that is what he was thinking (i.e., his subjective state of mind) because he said so. As I recall, his specific words were, “These assholes always get away.”

He also got out of his SUV and started following Trayvon and, after being pressed by the dispatcher to provide an address or location where the police officer could meet him, he said, “I’ve to get out of here,” and told the dispatcher to tell the officer to call his cell phone when he arrived in the neighborhood, instead of agreeing to meet the officer at the mailboxes as he had previously suggested. The mailboxes are located close to the clubhouse near the entrance to the neighborhood and would have been easy for the officer to find. The only problem with meeting the officer at the mailboxes was that he had lost sight of Trayvon, who ran behind some houses and he did not want him to get away. He then terminated the conversation.

The objective reality was that Trayvon was staying in the neighborhood and walking home after purchasing Skittles and Arizona Iced Tea at a nearby 711. Therefore, Zimmerman was mistaken.

Would a reasonable person have made that mistake? Would you or anyone you know have made that mistake?

Having made that mistake, what, if anything, would you have done upon encountering Trayvon?

And what about that loaded 9 mm KelTek semiautomatic in your holster? What, if anything, would you have done with it?

Was George Zimmerman a reasonable person that night?

A casual perusal of the 47 pages of his 911 calls to report suspicious activity strongly suggests that he was anything but a reasonable person. Those 47 pages are a damning indictment of a deeply paranoid person and I challenge everyone to read every freaking entry on every freaking page and then construct an argument that he was not a ticking time bomb waiting for the right stressor to set him off.

Why did George Zimmerman call the police that night? He saw an older teenage Black male wearing a hoodie type sweatshirt, jeans, and white tennis shoes walking around in the rain looking around at houses. I am surprised he even noticed him. Why call the cops? Why not ask him, if he needs help or directions? Don’t the police have better things to do than to respond to calls about supposedly suspicious people doing ordinary things?

A police officer cannot detain someone to investigate a possible crime, unless they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. A hunch is not enough. There must be sufficient objective facts and circumstances that would cause a reasonable person to suspect that the person was committing a crime. I do not see that here and I see no reason to summon police to investigate.

George Zimmerman likely knew all about the reasonable suspicion test since he is a student in a criminal justice program. That is one of the key concepts that is taught in those programs.

Nevertheless, George Zimmerman was certain that Trayvon was “up to no good” and, we know that because that is exactly what he told the dispatcher.

Knowing his state of mind when he ignored the dispatcher’s advice and he set off in search of Trayvon, which is something that no reasonable person would have done, what do believe he was prepared to do, if he found Trayvon and Trayvon was not cooperative?

What would a reasonable person have done in Trayvon’s situation? We know he knew he was being followed because that is what he told his girlfriend, when she called him moments before he was shot. We know he was afraid because he ran away from George Zimmerman.

Even if George Zimmerman did not start the physical confrontation, which I suspect he did, he still could not use deadly force in self-defense unless the objective facts and circumstances were such that a reasonable person in that situation would have used deadly force to prevent being killed or suffering serious bodily injury.

Perhaps George Zimmerman should have asked someone that night for directions to the house of the reasonable man.

I do not see a reasonable person doing anything George Zimmerman did that night up to and including his effort to find Trayvon. Nevertheless, this is not my judgment to make.

We have a legal system to decide what happened and what to do about it. We have due process of law with an adversarial system presided over by judges and we have juries to decide what happened. We will have to be patient and wait and see what happens.

In the meantime, we can wonder and while we wonder, we can conduct a diligent search for the reasonable man.

As an aside, why does our president believe he has and should exercise the power to unilaterally decide to kill someone just because he believes that person is a terrorist.

What is reasonable about that?

Stand Your Ground Explained

April 13, 2012

Florida self-defense law is a bit unusual, so I am going to explain how it works.

First, as I have stated in several posts here, here, and in comments to other posts, a person had a duty to retreat under the common law before he or she would be justified in using deadly force in self-defense. The SCOTUS abolished common law crimes in the mid sixties because they were a mish-mash of confusing and in some instances unintelligible definitions.

All crimes and their defenses are now defined by statute, or municipal ordinance and many of them are based on the Model Penal Code, which was put together by a panel of lawyers, judges and law professors. Most state legislatures adopted the Model Penal Code entirely, with some exceptions in areas where, for one reason or another, they wanted to retain a former law or procedure.

Second, most of the western states rejected the duty to retreat and you will find no mention of it in their self-defense or justifiable homicide statutes. Stand your ground, or SYG statutes merely abolish the duty to retreat. So, jurisdictions that have adopted SYG have merely joined the western states that long ago eliminated the duty to retreat.

Third, SYG is not a license to kill. Although a person may stand their ground without first retreating or attempting to retreat, they cannot use more force than is reasonably necessary to defend themselves. In other words, they may use such force as is reasonably necessary to prevent being assaulted.

The word “reasonable” means the test is objective, not subjective. That is, it’s based on the objective set of facts and circumstances, as opposed to a person’s perception of the facts and circumstances. In other words, a person may use such force as a reasonable person in the same situation would perceive as reasonably necessary to use in preventing an assault.

If they use excessive force, they become an aggressor and no longer are acting in self-defense. At this point, the original aggressor becomes the defender and now can use reasonably necessary force to defend against the use of excessive force.

Therefore, by definition, an aggressor cannot act in self-defense.

The use of deadly force is limited to those situations where, based on the objective set of facts and circumstances, a reasonable person would believe it was reasonably necessary to use deadly force to prevent being killed or suffering “great bodily harm.”

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

Fourth, there are no clear lines of demarcation during a battle between two people that separate the use of reasonably necessary force from the use of excessive force. At some point the line is crossed, for example, if A slaps B in the face and is about to slap B again, B cannot strike A with a baseball bat over the head to prevent another slap. Judges and juries do not like aggressors and when their victims get the upper hand and resort to excessive force, they are inclined to believe that the aggressor deserves it. In practice, therefore, an aggressor takes his victim as he finds him and if he loses the fight, no one is going to be sympathetic, and the person who whupped him will not be charged, unless his response was so extremely over the top that he basically used the initial assault as an excuse to kill or severely injure the person.

Fifth, is the concept of burden of proof and this is where Florida practice may differ from the law of self-defense in your state.

Under Florida law, a defendant can file a pretrial motion in a murder case under the SYG law asking the judge to dismiss the murder charge asserting that he stood his ground and his use of deadly force in self-defense was reasonably necessary to prevent being killed or suffering serious bodily injury. The court must then hold an evidentiary hearing.

This is how it will happen in the Zimmerman case:

Zimmerman must prove each of the following elements by a preponderance of the evidence (i.e., more probable than not) at that hearing:

1. He was not engaged in an unlawful activity (i.e., not committing a crime);

2. Trayvon Martin attacked him in a place where he had a right to be; and

3. He reasonably believed that his life was in danger or that he would suffer great bodily injury, if he did not use deadly force to defend himself. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

If the judge finds that he proved each of these elements by a preponderance of the evidence, then the judge must dismiss the murder charge and Zimmerman cannot be further prosecuted for the killing (i.e., for some lesser charge).

On the other hand, if the judge finds that he failed to prove each element by a preponderance of the evidence, then the judge must deny the motion to dismiss and the case will proceed in the usual manner.

The State can appeal a dismissal of the murder charge.

If the case proceeds to a judge or jury trial, then the burden of proof shifts to the prosecution, which must prove beyond a reasonable doubt that Zimmerman committed second degree murder (i.e., that he knew his actions were reasonably certain to kill and that he caused Martin’s death by committing an “imminently dangerous” act that showed a “depraved” lack of regard for human life). Due to an allegation in the information that he committed the crime with a firearm, the charge carries a minimum mandatory sentence of 25 years in prison and a maximum of life, if he is convicted.

The defendant also gets a second shot at his self-defense claim, except now the prosecution must prove that he did not kill Trayvon Martin in self-defense, either because Zimmerman was the aggressor or he used excessive force (i.e., he was acting unlawfully).

The prosecution’s affidavit of probable cause filed in support of the information charging Zimmerman with second degree murder asserts that he decided Martin was a criminal and he pursued and confronted him contrary to the police dispatcher’s specific admonition not to do so (i.e., he was the aggressor and acting unlawfully).

In other words, the prosecution will be attempting to prove that Zimmerman had no right to stand his ground because he was the aggressor. Zimmerman assaulted Martin and, under the prosecution’s theory of the case, Martin had the right to stand his ground and use reasonable force to defend himself.

I think the critical question that will decide the outcome of this case will be whether Zimmerman’s statements stand-up to scrutiny. If the prosecution can materially discredit his statements, the judge will deny his pretrial motion to dismiss under the SYG statute and the jury will find him guilty of second degree murder.

For those of you who believe the prosecution has no case because the person screaming for help in the background of the 911 call was George Zimmerman, even though he had a gun and two audiologists using different methodologies have independently excluded him as the person screaming for help to a reasonable scientific certainty, please consider the effect of the following testimony on the judge and the jury.

PROSECUTOR: Can you identify the voice screaming for help in the backgound — the scream that abruptly ends with a gunshot?


PROSECUTOR: Are you certain?


PROSECUTOR: Please tell the ladies and gentlemen of the jury who is screaming for help.

SYBRINA FULTON: That is my son, Trayvon, and those are the last words that I will ever him speak.

PROSECUTOR: Thank you. I have no further questions.

Trayvon Martin: What Forensics Can Tell Us

April 10, 2012


We already know that two independent forensic audiologists have examined a recording of a 911 call by a woman who reported a struggle going on behind her residence. A long high-pitched scream for help that is audible in the background terminates abruptly with what sounds like a single shot.

Using different analytical methods the two experts have compared the scream to a police recording of George Zimmerman’s voice when he called a police non-emergency number approximately 10 to 15 minutes before the shooting to report a suspicious person in his neighborhood.

We now know that person was Trayvon Martin, who was walking back to his father’s girlfriend’s residence, whom he was visiting with his father, after walking to a nearby 711 store to purchase some Skittles and Arizona Iced Tea.

Both experts excluded George Zimmerman as the person screaming in the background to a reasonable scientific certainty. They have not compared the scream to a recording of Trayvon Martin’s voice, presumably because they do not have a recording of his voice.

Trayvon Martin’s mother has identified her son as the person screaming.

Since there is a witness who claims to have seen the struggle between Zimmerman and Martin with Martin on top and Zimmerman lying on his back in the grass yelling for help, there is an apparent conflict in the evidence between the eyewitness’s statement and the two expert opinions. I say “apparent conflict” because the witness did not observe the fatal shot. He locked his door, went upstairs, and when he looked out the window, he saw Martin lying face down in the grass and not moving.

Because the witness did not observe who initiated the physical confrontation or the fatal shot, he cannot tell us who was the aggressor or where Martin and Zimmerman were positioned and what Martin was doing when Zimmerman fired the fatal shot. This missing information is important because, under Florida law, Zimmerman’s claim of self-defense must be rejected, if he was the aggressor, or if he was not in danger of being killed or suffering serious bodily injury when he fired the fatal shot.

For example, during the time period while the witness was in transit between locking his door, going upstairs, and looking out the window, Zimmerman, who outweighed Martin by 40 pounds, according to Wikipedia, might have locked his arms and legs around Martin, rolled over on top straddling him, and then pulled his gun out of the holster and fired the fatal shot. He might even have separated from Martin and fired the fatal shot. Neither scenario would justify using deadly force in self-defense.

Let us now consider what other forensic evidence to see what it might tell us about the relative positions of Zimmerman and Martin when Zimmerman drew his gun and fired.

What Can Forensics Add To This Investigation?

I would want to review the autopsy report and interview the medical examiner who conducted the autopsy to find out whether he noticed any injuries other than the fatal gunshot. For example, did Martin have any abrasions on his hands and fingers.

I would have a lot of questions for the medical examiner regarding the nature of the gunshot wound and Martin’s clothing.

For example, the weapon was a black Kel Tek 9 mm PF9 semiautomatic. The bullet would have been discharged when Zimmerman pulled the trigger causing the hammer to strike the primer igniting the smokeless powder in the casing producing rapidly expanding gas (consisting of carbon monoxide, nitrogen dioxide, carbon dioxide and other gases) that ejects the bullet, burning and unburned gunpowder (the burn always is incomplete), and trace amounts of the primer that contains heavy metals, including lead, antimony, and bismuth. Depending on the nature of the wound and the presence of all, some, or none of these materials, a qualified forensic firearms expert can determine how far away the gun barrel was when the shot was fired.

The gases, including the heavy metals, and some smoke from unburned but gaseous carbon, are projected only a few inches. The effects of the gas produce what are called contact or near-contact wounds that are characterized by variable skin lacerations or tears from the expanding gases that rip the skin apart and stippling, which is blackening skin from the unburned smokeless gunpowder that is propelled out the barrel of the gun with the bullet by the rapidly expanding gas.

As the distance of the gun barrel to the skin increases, the effect of the gas diminishes and only the unburned powder and bullet are capable of penetrating the skin. Stippling is present when the gun barrel is 0.5 centimeter to 1 meter from the wound. The pattern gets larger as the distance increases. So-called distant wounds do not cause tearing or stippling.

Based on Zimmerman’s statement, I would expect Martin to have had a contact or near contact wound with skin laceration or tearing caused by the explosive gases entering the wound expanding and tearing the skin. I also would expect to see some stippling or unburned smokeless powder. If I did not see evidence of either in the wound or clothing fibers, I would conclude that the gun barrel was more than a meter away, which is at odds with Zimmerman’s statement in which he claimed that he shot Martin as Martin was on top and hitting him.

Given Zimmerman’s statement, I also would expect to see high velocity blood spatter (mist-like spray of blood drops about 1 mm in diameter) or blowback on the barrel of Zimmerman’s gun, his shooting hand, and the sleeve of his jacket.

Absence of skin tearing, stippling, and high velocity blowback or blood spatter would seriously undermine a claim of self-defense.

United States Supreme Court Rules That Jails May Strip-Search Misdemeanor Offenders

April 3, 2012

The United States Supreme Court yesterday announced a new rule further eviscerating our disappearing right to privacy. In a 5-4 majority decision written by Justice Kennedy, joined by justices Roberts, Alito, Scalia, and Thomas, the Court held that the Fourth Amendment does not prohibit jails from strip-searching all inmates, including people jailed for minor offenses, if they are to be placed in general population. The ruling applies to visual searches of genital areas by corrections officers without physically touching the inmate.

Such searches are commonly referred to as a “squat and cough” that, in theory, is supposed to dislodge any contraband concealed in the vagina or rectum. In practice, they are used to humiliate inmates and emphasize that they are not in control.

Robert Barnes of the Washington Post reports:

The case was brought by Albert Florence, a New Jersey man who said he was subjected to two invasive inspections in 2005 after being mistakenly arrested for not paying a fine.

A state trooper pulled over Florence’s BMW in 2005 as he and his family were on the way to his mother-in-law’s to celebrate the purchase of their new home. He was handcuffed and arrested in front of his distraught, pregnant wife and young son.

He spent seven days in jail because of a warrant that said, mistakenly, that he was wanted for not paying a court fine. In fact, he had proof that the fine had been paid years earlier; he said he carried it in his glove box because he believed that police were suspicious of black men who drove nice cars.

Florence was jailed in Burlington County and then Essex County before a magistrate ordered him released. At Burlington, he said, he was forced to disrobe in front of an officer and told to lift his genitals. At Essex, he was strip-searched again and, he said, was made to squat and cough in front of others, a maneuver meant to expel anything hidden in a body cavity.

Ten states currently prohibit jails from strip searching new inmates jailed for misdemeanors absent reasonable suspicion to believe they are concealing contraband. The federal Bureau of Prisons has a similar rule. This ruling does not require a change in policy.

Justice Breyer wrote the dissent, joined by justices Ginsberg, Sotomayor, and Kagan.

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