Three More Witnesses Change Stories In Zimmerman Case

May 22, 2012

The Orlando Sentinel is reporting today that three more witnesses have changed their stories in the Zimmerman case.

Witness 2

She originally told the police she saw one person chasing another person, who was about 10-12 feet ahead, up the sidewalk between townhomes in the direction of the T-intersection with another sidewalk that connects Twin Trees Street with Retreat View Circle (this is very close to the location where Zimmerman shot Martin). She now says that she only saw one person running. She originally said she could not identify either individual because it was dark and she had taken her contacts out before it happened. That part of her story remains the same.

She changed her story when John Batchelor of the Florida Department of Law Enforcement interviewed her on March 20th.

Witness 12

Witness 12 is a young mother who did not give a recorded statement to the Sanford Police. The Orlando Sentinel reports,

During that session [with an investigator of the Florida Department of Law Enforcement on 3/20/2012 when she gave her first recorded statement], she said she saw two people on the ground immediately after the shooting and was not sure who was on top, Zimmerman or Trayvon.

“I don’t know which one. … All I saw when they were on the ground was dark colors,” she said.

Six days later, however, she was sure: It was Zimmerman on top, she told trial prosecutor Bernie de la Rionda during a 2 1/2-minute recorded session.

Since she saw the two individuals after the shot was fired, and we know that Trayvon Martin was shot, we can infer that she must be right. Zimmerman was on top.

She explained that the person on top was definitely bigger than the person on the bottom and when she saw pictures of them on TV after the shooting, she realized Zimmerman was the guy on top because he is much bigger than Martin (he’s 2 inches shorter but 42 lbs heavier).

Witness 13

Witness 13 did not so much change his story as provide added detail. He originally to the police that he went outside his townhome when he heard a shot and saw Zimmerman standing there “with blood on the back of his head.”

Zimmerman told him that Trayvon “was beating up on me, so I had to shoot him,” the witness told Serino. The Neighborhood Watch captain then asked the witness to call his wife, Shellie Zimmerman, and tell her what happened.

In two subsequent interviews about a month later — one with an FDLE investigator and one with de la Rionda — the witness described Zimmerman’s demeanor in greater detail, adding that he spoke as if the shooting were no big deal.

Zimmerman’s tone, the witness said, was “not like ‘I can’t believe I just shot someone!’ it was more like, ‘Just tell my wife I shot somebody…’ like it was nothing.”

Witness 6

I have already reported on Witness 6 who changed his story from Trayvon Martin “just throwing down blows on the guy, MMA-style,” which is mixed martial arts, to it looked like a wrestling match with Trayvon attempting to restrain or pin down Zimmerman, who was below him. He also changed his story from Zimmerman calling for help to not being certain who was calling for help because he could not see their mouths in the dark.

What does this mean?

Witness 6 is the only person who claimed to have seen Zimmerman calling for help, other than Zimmerman, of course. Other witnesses say it sounded like a young boy pleading for help.

He also is the only witness who supported Zimmerman’s claim that Trayvon was hitting him, although Zimmerman mostly claimed that Trayvon was bashing his head against the sidewalk.

Witness 6’s recantation hurts Zimmerman’s case badly.

Witness 12’s identification of Zimmerman being on top after the shot hurts Zimmerman because he told the police was on the bottom fighting for his life when he shot Trayvon.

Another witness, who saw the shooting from her upstairs bedroom, said the heavier built man was on top when the shot was fired and he stood up and walked 10 -20 feet away after the shot. She is one of several witnesses who say that the cries for help were uttered by the boy, not the heavier built man.

Definitely looks like Zimmerman’s claim of self-defense is evaporating.

What Will The Defense Do?

Defense counsel can confront each witness with their earlier statement and argue that law enforcement improperly influenced them to change their testimony. Maybe they did and maybe they did not, but I imagine they are going to claim otherwise and the emerging forensic evidence is not consistent with self-defense, as I predicted it would not be.

If any member of law enforcement was improperly influencing witnesses it was Sanford PD’s Chris Serino, who was telling witnesses that Zimmerman was the person calling for help. To give him the benefit of the doubt, he probably was relying on Witness 6’s statement, but that was extremely unprofessional.

Now that Witness 6 has recanted that part of his testimony, no one except Zimmerman is claiming that he was the person shouting for help.

Stay tuned.

EDIT: In the section titled, What does this mean, I changed Witness 2’s to Witness 12’s “identification of Zimmerman being on top after the shot hurts Zimmerman because he told the police was on the bottom fighting for his life when he shot Trayvon.” I corrected my error.


DNA And GSR Update On George Zimmerman Case

May 21, 2012

Summary of DNA and GSR Evidence*

A DNA Double-Helix

Image by Keith Ramsey

1. Trayvon Martin’s shirt (ME-8)

Four stains tested positive for blood. Trayvon Martin is the source of two stains. George Zimmerman is the source for another and the fourth stain is a mixed sample containing DNA from both individuals.

2. Trayvon Martin’s hoodie (ME 12)

Two stains test positive for blood. Trayvon is the source of one and no DNA result on the other.

No DNA results foreign to Trayvon Martin are found on both lower sleeves.

Two holes were discovered in the area of the “upper left chest” (one in each item of clothing) that exhibited characteristics consistent with a contact gunshot.

3. My thoughts

Given the lack of George Zimmerman’s DNA on the hoodie, the presence of blood contributed by George Zimmerman on the shirt that he was wearing underneath the hoodie indicates the hoodie was not covering the portion of the shirt where the bloodstain was located. Difficult to draw any additional conclusions without knowing the location of the bloodstains on the shirt (e.g., whether the hoodie was pulled up exposing the shirt or the shirt was extended below the hoodie or how this could have happened)

No DNA results foreign to Trayvon Martin are found on both lower sleeves suggesting that Trayvon was not beating Zimmerman.

The two holes obviously came from the same shot and there is a potential conflict between the location of the wound (1 inch left of the midline and 1/2 inch below the nipple) and the location of the two holes (upper chest area).

There also is a potential conflict created by the medical examiner’s conclusion that the muzzle of the gun was 2 to 4 inches away (an intermediate distance) when the fatal shot was fired compared the firearm’s analyst who concluded that the muzzle of the gun was in contact with the clothing.

Marilyn, who comments at my law blog, suggested Zimmerman was restraining Martin by gripping his clothing with one hand and fired the gun with the other as Martin was attempting to get away. This could explain how the upper part of both items of clothing could have been pulled down as well as a few inches away from Martin’s chest when Zimmerman fired the fatal shot. It also might explain how Zimmerman’s blood might have gotten on the shirt, but not the hoodie.

I think we lack sufficient evidence to draw that conclusion at this point, but it’s certainly possible. Might also explain how the shot went straight in without angling up or down, left or right.

Of course, if it happened this way, the shooting definitely was not in self-defense.

4. George Zimmerman’s shirt (DMS-16) and jacket (DMS-19).

Gunshot Residue (GSR) was found on the jacket in the form of 1 particle of lead found on the upper back portion of the right sleeve.

Twelve bloodstains on the shirt were contributed by George Zimmerman, according to DNA analysis.

Thirteen bloodstains on the jacket contain Zimmerman’s DNA. Trayvon Martin’s DNA is present in four of them (mixed samples) and his DNA was detected in one mixed sample where the other contributor could not be identifies.

5. My thoughts

We do not know the size of any of these bloodstains. but I imagine some are quite small because they probably were deposited by high velocity blood spatter from the gunshot, which resembles a fine spray.

The pattern of blood spatter may establish where the wound was in relation to the jacket when the fatal shot was fired and help to establish the relative positions of the two individuals.

The only conclusion one can draw regarding the presence of GSR is that the object in question was in a shooting environment at some time.

GSR can be wiped or washed off, and one cannot tell how long it has been present, so we probably cannot reliably draw any conclusions from the presence of the single particle of lead on the upper back portion of the right sleeve of his jacket.

*The information in this article comes from the lab reports in the document dump.

1. Lab Report March 26, 2012 (p. 104)

2. Supplementary Lab Report May 9, 2012 (p. 110)

3. Lab Report March 22, 2012 (p. 122)

4. Lab Report March 28, 2012 (p. 124)


Witness Recants Statement Identifying Zimmerman As Person Screaming For Help

May 20, 2012

(h/t to Marilyn who reported this story in the Orlando Sentinel)

The witness named John, who identified Zimmerman as the man screaming for help, recanted that part of his statement when he was interviewed by the Florida Department of Law Enforcement on March 20, 2012.

He said it was too dark to see the mouths of the two individuals and he had just assumed that the man on the bottom was the one screaming.

However, his description of the fight also has changed:

“The black guy was on top,” he told FDLE Investigator John Batchelor. “The guy that was on the ground, under him at that point, wrestling, was definitely a lighter color.”

It was dark outside, he said, and at first, he thought he was witnessing a dogfight. When he stepped to the door, he realized it was two people on the ground wrestling.

The person on top was either hitting or pinning the other to the ground, he said. The person on the bottom was struggling to get up.

He yelled at them to stop, he said, “Hey, cut it out,” and thought they would, but they didn’t, so he stepped inside and headed upstairs to call 911.

He heard a loud pop, “like a rock hitting a window,” he said.

When he looked again, the person who had been on top, he said, was “in the grass not moving while the other gentleman has his hands in the air … The one guy that was on the bottom said, ‘I shot the other guy in self-defense. The gun is on the ground.’ “

No wonder the prosecutors charged him with second degree murder. This is a different case.


Why Is Trayvon Martin Dead?

May 19, 2012

Cross posted from Frederick Leatherman Law Blog.

I apologize for the length of this article, but there is a lot of information to cover. Includes lots of new information that came out this week.

Many lawyers, including myself, have focused the discussion in the George Zimmerman case on who initiated aggressive physical contact, because there is no law that prohibits a person from approaching another person and asking them what they are doing.

Nevertheless, as I also have pointed out, Zimmerman’s intent when approaching Martin is relevant regarding who threw the first punch.

Keep in mind that it is after dark and raining.

What Was Zimmerman’s Intent?

As Zimmerman sat in his vehicle talking to the dispatcher, we know he was suspicious about Martin’s presence and intentions.

When he called the non-emergency number for the Sanford Police Department seven minutes before he shot and killed an unarmed teenager named Trayvon Martin, he said,

7:09:00: Zimmerman: Hey we’ve had some break-ins in my neighborhood, and there’s a real suspicious guy, uh, [near] Retreat View Circle, um, 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.

7:09:25: Dispatcher: OK, and this guy is he white, black, or Hispanic?

Zimmerman: He looks black.

Dispatcher: Did you see what he was wearing?

Zimmerman: Yeah. A dark hoodie, like a grey hoodie, and either jeans or sweatpants and white tennis shoes. He’s [unintelligible], he was just staring…

7:09:42: Dispatcher: OK, he’s just walking around the area…
Zimmerman: …looking at all the houses.

Dispatcher: OK…

Zimmerman: Now he’s just staring at me.

He also was concerned about Martin approaching him and possibly being armed.

Zimmerman: Yeah, now he’s coming towards me.

Dispatcher: OK.

Zimmerman: He’s got his hand in his waistband. And he’s a black male.

7:10:03: Dispatcher: How old would you say he looks?

Zimmerman: He’s got button on his shirt, late teens.

Dispatcher: Late teens ok.

Zimmerman: Somethings wrong with him. Yup, he’s coming to check me out, he’s got something in his hands, I don’t know what his deal is.

7:10:20: Dispatcher: Just let me know if he does anything ok

Zimmerman: How long until you get an officer over here?

Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else.

Martin, evidently, walks past him without stopping or speaking.

As Zimmerman identifies himself to the dispatcher and provides directions to his location , he expresses frustration three times that Martin will get away before the police officer arrives [See italicized material below — the bracketed descriptions of background sounds within the quoted material were provided by Wikipedia]. He gets out of his vehicle, follows Martin and acknowledges the dispatcher’s instruction not to do that with a simple “OK.”

Yet, he appears to continue looking for Martin, instead of returning to his vehicle. When the dispatcher asks him where his vehicle is parked, he says he cannot because it is parked in front of a “cut-through” or pedestrian walkway “between buildings” (townhomes). He does not appear to be in or near his vehicle because he neither provides any addresses to be used as landmarks near his vehicle, nor does he describe his vehicle or provide explicit directions to find it. Instead, he tells the dispatcher to instruct the officer en route to call him on his cell phone after he arrives in the neighborhood.

Zimmerman: Okay. These assholes they always get away. When you come to the clubhouse you come straight in and make a left. Actually you would go past the clubhouse.

7:10:39 Dispatcher: So it’s on the lefthand side from the clubhouse?

Zimmerman: No you go in straight through the entrance and then you make a left…uh you go straight in, don’t turn, and make a left. Shit he’s running.

7:11:08: Dispatcher: He’s running? Which way is he running?

[Ambient sounds are heard which may be Zimmerman unbuckling his seat belt and his vehicle’s “open door” chime sounding. The change in his voice and the sound of wind against his cell phone mic indicate that he has left his vehicle and is now walking. The dispatcher seems to pick up on these changes and sounds concerned when he later asks Zimmerman if he is following Martin.]

Zimmerman: Down towards the other entrance to the neighborhood.

Dispatcher: Which entrance is that that he’s heading towards?

Zimmerman: The back entrance…fucking [disputed/unintelligible]

[This section of the recording has been the subject of much speculation. Some suggest that Zimmerman has just made a racial slur, but the audio is not clear.]

7:11:22: Dispatcher: Are you following him?

7:11:25: Zimmerman: Yeah

7:11:26: Dispatcher: Ok, we don’t need you to do that.

7:11:28 Zimmerman: Ok

Dispatcher: Alright sir what is your name?

Zimmerman: George…He ran.

Dispatcher: Alright George what’s your last name?

[A clicking or knocking sound can be heard here]

Zimmerman: Zimmerman

Dispatcher: And George what’s the phone number you’re calling from?

[Clicking or knocking sound is heard again]

Zimmerman: [phone number redacted]

Dispatcher: Alright George we do have them on the way, do you want to meet with the officer when they get out there?

Zimmerman: Yeah.

Dispatcher: Alright, where you going to meet with them at?

[For the remainder of the recording, Zimmerman sounds distracted. The knocking sound occurs several times during the final exchange with the dispatcher]

Zimmerman: If they come in through the gate, tell them to go straight past the club house, and uh, straight past the club house and make a left, and then they go past the mailboxes, that’s my truck…[unintelligible]

7:12:10: Dispatcher: What address are you parked in front of?

Zimmerman: I don’t know, it’s a cut through so I don’t know the address.

Dispatcher: Okay do you live in the area?

Zimmerman: Yeah, I…[unintelligible]

Dispatcher: What’s your apartment number?

Zimmerman: It’s a home it’s 1950, oh crap I don’t want to give it all out, I don’t know where this kid is.

7:12:40 Dispatcher: Okay do you want to just meet with them right near the mailboxes then?

7:11:42 Zimmerman: Yeah that’s fine.

7:12:43: Dispatcher: Alright George, I’ll let them know to meet you around there okay?

Zimmerman: Actually could you have them call me and I’ll tell them where I’m at?

7:12:49: Dispatcher: Okay, yeah that’s no problem.

Zimmerman: Should I give you my number or you got it?

Dispatcher: Yeah I got it [redacted]

Zimmerman: Yeah you got it.

Dispatcher: Okay no problem, I’ll let them know to call you when you’re in the area.

7:13:02 Zimmerman: Thanks.

Dispatcher: You’re welcome. – Call Ends 7:13:07

The Critical Three Minutes

Zimmerman shoots and kills Martin three minutes after the phone call ends.

How do we know that?

All 911 calls are timed and this is how we know that Zimmerman’s call ended at 7:13 pm. During another timed 911 call from the resident of a townhouse reporting a fight between two individuals in the yard behind the townhouse, a shot abruptly punctuates a terrified scream for help at 7:16 pm.

Martin’s girlfriend calls him at 7:12 pm, which has been verified by cellular phone records for both phones.

Through counsel for Martin’s parents, she provided a statement in which she said Trayvon expressed concern about a man following him. She told him to run. Then she heard Martin say,

What are you following me for?

This was followed by a man’s voice responding,

What are you doing here?

She said that she heard the sound of pushing and then Trayvon said,

Get off me, get off me.

Martin’s headset suddenly went silent. She attempted to call him back immediately, but was unable to reach him.

That call ended at 7:16 pm.

What Happened Next

Officer Timothy Smith of the Sanford Police Department was the first to arrive at the scene of the shooting at 7:17 pm.

Police recovered Martin’s cellphone from the wet grass near his body. The Arizona Iced Tea and Skittles were found inside the pouch pocket of his hoodie.

The Autopsy Report

According to the autopsy report, the fatal shot was fired straight-on from an intermediate distance and entered Trayvon’s chest 1 inch to the left of the midline and 1/2 inch below his left nipple. It perforated the right ventricle of his heart and perforated his left lung, collapsing both lungs. There was no exit wound. The trajectory of the shot was front to back, neither up nor down, neither to the left nor to the right.

Based on the 2 inch X 2 inch smoke ring with stippling around the 3/8 inch entry wound, Dr. Vincent J.D. di Maio, the former Medical Examiner for Bexar County (San Antonio) estimated that the muzzle of the gun was 2 to 4 inches from Trayvon’s chest when Zimmerman fired the fatal shot.

The Assistant Medical Examiner who performed the autopsy also reported that Martin had severe global edema (i.e., swelling) to both hemispheres of his brain.

Zimmerman’s Statement

Zimmerman claims he followed the dispatcher’s advice and was returning to his vehicle when Martin approached him from behind his left shoulder and asked him,

Why are you following me?

[Note the use of the present tense, which suggests he has not given up looking for Martin, is not returning to his vehicle, and is not approached from behind (h/t KrisAinTX)]

Martin’s girlfriend corroborates Martin’s question and use of the present tense, if not the context in which Zimmerman claims it was asked.

Zimmerman claims he then asked Martin,

What are you doing here?

Martin’s girlfriend corroborates Zimmerman’s response.

Zimmerman’s Arrest

When Officer Smith arrived at the scene at 7:17 pm, a minute after the shooting, he saw Martin lying face down in the grass and Zimmerman standing nearby.

Zimmerman was not attempting to aid or provide CPR to Martin and there is no reference in Smith’s report to Zimmerman being upset or crying.

After retrieving Zimmerman’s gun and holster from inside his waistband, he arrested and handcuffed him with his hands behind his back and placed him in the back seat of his patrol vehicle.

Cool As A Cucumber

When an EMT checked Zimmerman in the patrol vehicle at 7:41 pm his pulse, blood pressure, and all of his vital signs were normal. Here is his report:

Assessment 1941 [7:41 pm]

Patient Conscious
Breathing Quality Adult Normal 12-20 [which is normal, not panting or out of breath]

No External Hemorrhage noted; Mucuous Membrane Normal

Central Body Color Normal

Extremities Normal

Within Normal Limits (Airway, Breathing Quality, Accessory Muscle Use, Chest Rise, Radial Pulse, Skin Temp, Skin Moisture [not sweating], Skin Turgor [not showing signs of dehydration], Cap Refill [blood circulation is normal], Pupil Size and Reaction.

[Or as Crane Station, a former RN says, He’s cool as a cucumber, which seems unusual for a person who minutes earlier killed someone and is now under arrest while sitting in the rear seat of a police vehicle with his hands handcuffed behind his back ]

Cause of Injury [to Zimmerman]: Struck by blunt/thrown object. (9640) [Emphasis supplied]

Mechanism of Injury: Blunt

Patient says he was assaulted and his head was struck on the pavement.

Pt’s GCS = 15 [Glascow Coma Scale, which is a level of consciousness scale and 15 is normal] and he is warm and dry with normal skin color. Pt has abrasions to his forehead + bleeding/tenderness to his nose and a small laceration to the back of his head. All injuries have minor bleeding. Pt also denies LOC [loss of consciousness], neck/back pain, and he has + PMS [pulse motor sensory function] X 4 [in all extremeties] with – paresthesia [no tingling]

[That means his pulse, motor, and sensory functions were all okay and functioning normally]

Crane-Station’s Take

Crane-Station put it best,

How could a guy be talking to his girlfriend and killing somebody at the same time?

Who Screamed For Help?

The FBI Digital Examination Laboratory has reported that identification of the person screaming for help during the 911 call is not possible due to the poor quality of the original recording.

Zimmerman, backed by his father and unidentified family members, claims he is the person screaming for help. A neighbor named John claims he saw Zimmerman calling for help.

Martin’s mother claims Trayvon is the person screaming for help. Two audiologists working independently of each other using different methodologies to clean up background noise and focus on clarifying the scream have excluded Zimmerman as the source of the scream to a reasonable scientific certainty.

The Witness Named John

Claims that he saw Martin on top of John beating him about the head and heard Zimmerman calling for help. He shut and locked his sliding glass door and went upstairs to call 911. He heard the shot as he was going up the stairs. When he looked out a bedroom window, he saw Martin lying face down in the grass, apparently dead, and Zimmerman standing next to him.

He did not see the beginning or the end of the fight and that also appears to be the case with the other witnesses.

Other Witnesses

Other witnesses reported bits and pieces of this tragic event. I am still reviewing their statement but have nothing definitive or new to report yet.

Conclusion

Given Zimmerman’s state of mind and intent, I believe he was the aggressor and did not act in self-defense. I also believe he attacked Martin while Martin was talking to his girlfriend and Martin may have struck him with the cell phone several times in self-defense causing the injuries treated by the EMT.


Forensic Firearm Evidence May Solve Zimmerman Case

May 17, 2012

George Zimmerman

By Donkey Hotey
Creative Commons @ Flickr

For reasons that follow, I believe the forensic firearm evidence will solve the Zimmerman case.

Many of you have focused instead on Zimmerman’s decision to follow Martin contrary to the dispatcher’s request and concluded that he was the aggressor. I do not believe that conclusion is supported by the evidence.

If I were representing Zimmerman, I would argue that he was not ordered to stop pursuing Martin. The specific admonition from the dispatcher, after Zimmerman admitted that he was following Martin, was, “We don’t need you to do that.”

Plus, the dispatcher was not a police officer with a badge. He did not have the authority of a badge.

Therefore, I do not believe Zimmerman ignored an explicit police order and I do not see any unlawful conduct in carrying his cell phone while following Martin at a respectful distance to keep an eye on him in order to inform the police officer where he was after the police officer arrived in the neighborhood. Recall that he suggested the dispatcher tell the officer to call him on his cell phone when he arrived.

He had a license to carry so he did not violate any law by doing that.

Of course, a neighborhood watch coordinator from the Sanford Police Department had previously advised Zimmerman and others not to carry guns and not to contact suspects to avoid tragedies like the one that ended in Trayvon Martin’s death. This warning and the dispatcher’s admonition are relevant to consider in determining Zimmerman’s intent when he followed Martin. A jury might well reach the same conclusion that many readers have reached; namely, that Zimmerman was the aggressor because he knew he was not supposed to follow Martin.

Then again, it might not.

Zimmerman’s version of what happened is that he lost Martin and decided to return to his vehicle. As he was walking toward it, Martin approached him from behind his left shoulder and asked, “Why are you following me?”

Zimmerman said he responded, “What are you doing here?”

He claims Martin punched him in the nose, knocking him down on his back, and then jumped on top of him and started slamming his head into the sidewalk.

He also claims he yelled for help but no one responded.

Zimmerman says Martin saw his holstered gun as he was reaching for it and said, “One of us is going to die tonight.”

They struggled for the gun. Zimmerman won and shot him once in the chest.

This would be self-defense, if true.

Martin’s girlfriend says when she called him at 7:12 pm, which is verified by cell phone records, Martin told her that some guy was following him. She told him to run. Then she heard Martin say, “Why are you following me?”

She heard someone else say, “Why are you here?

Then she heard sounds that sounded like a struggle with Martin’s headset being ripped off his head and the phone went dead. She called him back but got no answer.

She confirms the two statements that Zimmerman said were made. Her opinion of what was going on after that may or may not be accurate.

A neighbor named John told the police that he saw two people struggling on the ground. The man on top was hitting the man lying on his back. The man lying on his back was wearing a red sweater and calling for help. Zimmerman was wearing a jacket with red sleeves.

John closed and locked his patio door. Then he went upstairs to a bedroom and looked out the window. The man who had been on his back yelling for help was standing and the man who had been hitting him was lying face down in the grass, apparently dead.

Therefore, he neither saw who threw the first punch, nor the relative positions of the two individuals and what they were doing when Zimmerman fired the fatal shot. We do not know how much time passed after he closed and locked the patio door until he looked out the upstairs bedroom window and we do not know how the struggle progressed. Apparently, he did not even hear the shot.

During a 911 call by another neighbor to report a fight between two men in her backyard, a loud terrified scream for help can be heard in the backyard. The scream ends suddenly with a loud gunshot that is followed by silence.

Without knowing how much time passed before John looked out his upstairs bedroom window, we cannot conclude if this scream is the same yell for help that John heard. Moreover, without questioning John, I cannot say with any confidence that he correctly identified Zimmerman as the person calling for help, even though Zimmerman claimed to have called for help.

I am inclined to believe that it is not the same scream, due to the time lapse and because Martin’s mother has identified her son as the person screaming for help.

Also, two independent forensic audiologists using different methodologies to clean-up the recorded 911 call (i.e., filter out static and background noise) have compared the scream to Zimmerman’s voice on his call to the police. To a reasonable scientific certainty, they excluded him as the source of the scream for help.

Nevertheless, Zimmerman and his father have identified him as the person calling for help.

Let’s temporarily disregard what everyone said and focus on that 911 call with the scream for help in the background.

I have three questions:

1. How could a mother not know her son’s terrified scream for help?

2. Why would a man with a gun in his hand be desperately screaming for help and suddenly stop screaming at the precise instant the shot is fired?

3. How could two experts working independently of each other using different forensic methodologies and reaching the same conclusion to a reasonable scientific certainty be wrong?

Finally, consider the shot itself. It was fired from an intermediate distance, which is anywhere from 0.5 centimeters to 1 meter. I am confident the forensic firearm experts have already performed the standard experiments that I have described elsewhere in a comment on my previous article, but we do not yet know the results.

They will be able to say to a reasonable scientific certainty where within that range the gun was when the fatal shot was fired.

Using a steel rod and a photograph, the Assistant Medical Examiner who performed the autopsy will be able demonstrate the path of the bullet after it entered the body. The firearms expert will be able make a mark on the steel rod in that photograph showing the location of the muzzle when Zimmerman fired the fatal shot.

When we see that demonstration, we will likely know if Zimmerman lied or told the truth.

Given what he said, I was expecting a contact or near contact wound. Depending on the fine tuning, an intermediate or close range wound is consistent with a scenario in which the two individuals have separated.

That contradicts Zimmerman’s story because in that situation his use of deadly force would not be necessary since he would not be in imminent danger of death or grievous bodily injury.

Stay tuned.


Zimmerman Medical Report Released

May 16, 2012

ABC News reported last night that George Zimmerman sought medical treatment at a family clinic the day after he shot Trayvon Martin.

According to the medical report, which was part of the court file made public yesterday, he requested the appointment to obtain a medical clearance to return to work. However, according to Wikipedia, he was employed as an insurance underwriter at the time of the shooting and attending his final semester at Seminole State College in their Criminal Justice program.

The diagnosis: a closed fracture of the nose, two black eyes and two cuts to the back of his head.

[Note: a closed fracture means that the fracture did not penetrate through the skin and black eyes are a common symptom of a fractured nose]

The Christian Science Monitor reports today:

As the Christian Science Monitor reported Tuesday, prosecutors in the Trayvon Martin shooting began to sketch an outline of their case against George Zimmerman on Monday, citing new video evidence, a long list of witnesses and experts, and hints of a trail of facts, forensic details, and witness observations that they hope will lead a jury to a second-degree murder conviction.

But after weeks of national introspection into what really happened between Mr. Martin, an unarmed black teen, the guts of the hefty Zimmerman file remain secret. The prosecution, for its part, wants to keep it that way, having asked Judge Kenneth Lester to waive Florida court transparency laws in order to keep some witness names secret.

ABC News with Diane Sawyer broke the story last night.

Portions of the medical report are visible in the background and highlighted in yellow.

Apparently, no photograph was taken of the injuries noted in the medical report, no Xray was taken of his head and the cuts on the back of his head did not require stitching. The only recommended after-care, according to ABC, was a recommendation to obtain counseling.

Since the report mentioned that Zimmerman was taking Adderall and Temazepam, he probably was seeing a psychiatrist for ADHD and, if he followed-up with that aftercare recommendation, he likely would have done so by informing his psychiatrist regarding the event.

There was no reference to a psychiatric report.

I also did not see any indication that the doctor at the family clinic prescribed any pain medication.

I am still waiting to see the autopsy report and the forensic report on the examination of Zimmerman’s gun and his clothing. According to Wikipedia, the police kept his gun. However, his clothing might have been returned to him.

Evidently, the prosecution does not want the autopsy and forensic reports released at this time. We will have to wait and see whether the judge orders them released.


Saturday Art: Mayan Art And Their Remarkably Accurate Calendar

May 12, 2012

Max Chamberlain made an astonishing discovery two years ago while on a dig in the Guatemalan jungle excavating Xultun, the largest city in the Mayan empire. He was an undergraduate student at Boston University working under the supervision of Professor William Saturno, an archaeologist at Boston University.

Although Xultun was discovered in 1915, it had not been professionally excavated by archaeologists. Occasional looters searching for treasure had left their calling cards, however, in the form of many deep trenches that they dug to find and search buildings now located below ground and concealed by dense jungle growth.

During a lunch break, Chamberlain decided to explore a trench to see if he could find any sign of paintings on exposed walls. Saturno assured him that he would not likely find any paintings because they would have disappeared during the intervening centuries due to water, dirt, insects and encroaching tree roots. Professor Saturno was wrong.

While stumbling and crawling through the trench, he found an exposed wall with two red lines.

Brian Vastag of the Washington Post reported yesterday,

A quick excavation revealed the back wall of the building — replete with a mural of a resplendent Mayan king, in bright blue, adorned with feathers and jewelry.

Saturno’s team brushed off the wall and “ta-da!” he said. “A Technicolor, fantastically preserved mural. I don’t know how it survived.” Saturno immediately e-mailed contacts at the National Geographic Society, which agreed to fund a full excavation of the building.

The mural is the first Mayan painting found in a small building instead of a large public space. And it’s also the oldest known preserved Mayan painting.

They also uncovered other figures, including a scribe dressed in orange and three seated black figures wearing white loincloths and white pendants dangling from their necks.

They also found a lunar table showing a 4,784-day cycle of the Moon’s phases and a 7,000 year table showing Venus-Mars alignments. The latter find not only is important for its own sake, but it dispels the notion that the Mayans predicted the world would end this coming December 21st because they were calculating events that would occur long after that date.

The Mayan calendar ends on December 21st because that is the end of their Long Year, not the end of the world.

Please take a moment to look at the exquisite gallery displaying photographs of the figures in the Washington Post article..


Science Friday: Why Are You So Damned Smart?

May 11, 2012

Greetings to all of you. Today I am initiating a new topic for my blog, titled Science Friday. Each Friday, I will pick a new scientific topic or experimental result and introduce it with a link to more information.

Today, I am starting with an article about partial cell DNA duplication and the role it may have played in developing Homo sapiens sapiens.

Yes, I know this is not about law and this is a law blog. Well, guess what? Even lawyers need to know some science and besides, it is interesting for its own sake.

First, a little background.

The nucleus of each cell in our bodies contains a complete copy of the human DNA genome. Prior to dividing to create a new cell, each cell creates another complete copy of the human genome. Mistakes happen occasionally during this process and the error becomes a genetic mutation, if the cell does not correct it.

Mutations are not inherently good or bad. Whether they are good, bad or neutral depends on the environment in which the organism exists. Most of the time they are neutral. Sometimes, however, a mutation creates a competitive advantage or disadvantage for an organism that allows it to prosper or struggle in the existing environment relative to other organisms that belong to the same species. Depending on the environment, successive generations that inherit the advantage may expand in number and end up prevailing over organisms that inherit the disadvantage and gradually die out. Sometimes the environment changes radically and suddenly amplifying the importance of the advantage or disadvantage. We call this process natural selection.

Duplication is one type of error that occurs during genome replication. When that happens, a section of the genome is copied twice instead of just once. The extra copy can change over time gaining mutations or losing parts.

In a paper published today in the peer reviewed scientific journal, Cell, genetic researchers have reported that they have discovered that the human gene SRGAP2 has duplicated itself twice, approximately 3.5 and 2.5 million years ago. This corresponds to the period when the brains of our ancestors began to expand, increasing cognitive ability, and the now extinct hominin Australopithecus declined and disappeared in favor of the genus Homo that led to us, Homo sapiens sapiens.

The more recent duplication was an incomplete duplication. Using mouse DNA in the lab, they replicated the incomplete duplication and discovered that it appeared to speed the migration of brain cells during development making brain organization more efficient.

To read more about this study, go here to read an article in Discovery News by Jennifer Welch, reporting for LiveScience.com on Sunday, May 6th.


Washington State Supreme Court Reverses Darrold Stenson’s Aggravated Murder Conviction And Death Sentence

May 10, 2012

In 1994, I represented Darrold Stenson in a death penalty case. After a long and bitterly fought trial, the jury found him guilty and sentenced him to death for killing his wife and a former business partner.

Both bodies were discovered in the home Mr. Stenson shared with his wife and their two young children.

The prosecution’s theory of the case was that he killed his former partner to escape paying a substantial debt and he killed his wife to collect on her life insurance policy. The prosecution claimed that he lured his former business partner over to his home early one morning to discuss the debt, shot him to death after he arrived, and then shot and killed his wife staging the scene to look like a murder suicide.

The Washington State Supreme Court today reversed Darrold Stenson’s Aggravated Murder Conviction And Death Sentence in an 8-1 opinion and remanded the case for a new trial based on the prosecution’s failure to provide me with exculpatory evidence. The Court specifically held that the prosecution withheld material exculpatory forensic evidence that prejudiced the defense denying him due process of law.

The Court stated,

Our conclusion that Stenson did suffer prejudice is shaped largely by the fact that only two pieces of forensic evidence formed the basis for Stenson’s conviction — GSR [gunshot residue] and blood spatter. Judge Williams [the trial judge who conducted a special remand hearing at the Supreme Court’s request — I spent two days testifying at the hearing] concluded after the first reference hearing that “[h]ad the ungloved handling and the turning out of the pockets [of Mr. Stenson’s pants by the lead detective in the case prior to trial] been known to the trial court and an appropriate objection made, the GSR testimony would have been excluded [at trial].” RHFC at 17-18. Both items of evidence were instrumental to the State’s case and, since the discovery of the FBI file and photographs, cumulative reliability of the forensic evidence in this case has been greatly undermined. Had the defense trial team been privy to the suppressed evidence at issue here, the integrity and quality of the State’s entire investigation, evidence handling procedures and case presentation would have been called into question.

Stenson’s counsel aptly made this point in its brief addressing Judge Williams’s determinations:

To rebut claims that the investigation was meticulous, impeccable, and highly professional, Stenson could point to the haphazard and cavalier way in which critical pieces of evidence were treated. He could show that the lead investigator was biased, or suffered from memory problems. He could show that at least one state’s expert (Peele) testified misleadingly, implying that he had personally conducted forensic tests when in fact they had been done by a trainee assistant. He could argue that the state had knowingly proffered worthless forensic evidence and then touted it in closing as highly probative of guilt. The mishandling of the pants would serve as a prime example of why the state’s evidence, witnesses, and arguments should all be viewed with extreme skepticism.

Given the opportunity to impeach not only the useless GSR evidence but the state’s entire investigation, competent defense counsel would have been able to undermine confidence in the state’s case against Stenson. By the end of the trial, one of the key pieces of inculpatory evidence would have been completely neutralized, and the rest of the state’s case would have appeared much less solid.

Pet’r’s Br. Addressing Reference Ct.’s Findings of Jan. 20, 2011, at 16-17 (footnotes omitted and citations omitted).

In Kyles, the United States Supreme Court noted that, had the favorable evidence been disclosed to the jury, then the jury would have counted “the sloppiness of the investigation against the probative force of the State’s evidence. . . . [I]ndications of conscientious police work will enhance probative force and slovenly work will diminish it.” Kyles, 514 U.S. at 446 n.15. Had the FBI file and photographs been properly disclosed here, Stenson’s counsel would have been able to demonstrate to the jury that a key exhibit in the case — Stenson’s jeans — had been seriously mishandled and compromised by law enforcement investigators. It is also likely that exposure of the State’s mishandling of the jeans with regard to GSR testing would have led to further inquiry by Stenson’s counsel into possible corruption of the blood spatter evidence. In that regard, Stenson’s defense theory at trial could have taken into account the fact that the jeans may have been folded over when the blood spatter was wet. Instead, the jury was left with only one explanation for the blood spatter, which was that it could not have appeared on Stenson’s jeans after Frank came to his final resting place.

We are left with the fact that constitutionally significant mistakes were made in Stenson’s trial, resulting in imposition of the ultimate punishment without the full benefit of due process protections. The question here is not whether Stenson has proved his innocence; that is not his burden under Brady. As the United States Supreme Court said in Kyles, “the question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have been the same.” Kyles, 514 U.S. at 453. Under Kyles and its progeny, we are to consider whether one juror might have had reasonable doubt that Stenson was

guilty or deserving of the death penalty if (1) the State had never introduced evidence that Stenson’s jeans pocket and hand had been in a “shooting environment,” Reference Hr’g Ex. 90, at 1779; (2) the defense team properly impeached the credibility of the detectives’ investigation techniques and showed the extent to which the law enforcement officers mishandled the evidence; and (3) the defense team had the benefit of the undisclosed evidence to create a persuasive defense theory of the case.

Stenson, in our judgment, has met his burden of showing that there is a reasonable probability that, had the FBI file and photographs been disclosed to the defense, the result of his trial would have been different. Because we believe the newly discovered evidence undermines confidence in the jury verdict, we reverse Stenson’s convictions and death sentence and remand for a new trial.

To read the full majority opinion, go here

Go here to read the dissent.

Special thanks to Darrold’s legal team at the Federal Public Defender in Seattle: attorneys Robert Gombiner and Sheryl Gordon McCloud and the best paralegal and defense investigator in the world, Jennifer Davis.

Wow, do I ever feel good!


Is Anders Behring Breivik Insane?

May 8, 2012

ABreivik

Flickr Creative Commons
Image by Oslo Politidistrikt’s Photostream

I. Introduction

Anders Behring Breivik has admitted to killing 77 people in Norway on July 22, 2011. He detonated a home-made fertilizer bomb that he placed in a parked vehicle next to several government buildings in downtown Oslo killing 8 people. Then he took a ferry to an island where he shot and killed 69 people, mostly teenagers, at a camp operated by the Worker’s Youth League of Norway’s Labour Party. He said he deliberately killed all of these people to protect the white race from multicultural infection by immigrants, principally Muslims.

He is on trial and the legal issue the court must decide is whether he was insane at the time of the offense.

If the court determines that he was insane, he will be placed in a secure mental health facility for an indeterminate period of time, subject to periodic reviews of his mental health to determine if he is safe to be released.

If the court determines that he is not insane, he will be sentenced to prison for a period of not more than 21 years. However, that sentence may be extended in 5 year increments, until such time as he is deemed safe to be released.

In neither case will he likely be released.

Norway does not have a death penalty.

Wkipedia reports:

Breivik was diagnosed with paranoid schizophrenia by the court-appointed psychiatrists. According to their report, Breivik acted compulsively based on a delusional thought universe. Among other things, he alluded to himself as a future regent of Norway pending a takeover by a Templar-like organization. Imagining himself as regent, his ideas included organizing Norwegians in reservations and using them in breeding projects. Other psychiatrists disagree that he is psychotic or schizophrenic, and on 13 January 2012, after much public pressure, the Oslo district court ordered a second expert panel to evaluate Breivik’s mental state. On 10 April 2012 the second psychiatric evaluation was published with the conclusion that Breivik was not psychotic during the attacks and he was not psychotic during their evaluation; rather he is an extreme narcissist.

(footnotes omitted)

Breivik claims he is not insane. He insists that he should be acquitted and released or convicted and sentenced to death.

To get a sense of his mental state, what he was thinking, and why he did what he did, please read the Wikipedia day-by-day trial summary of his five day testimony and the day-by-day trial coverage by the BBC.

(Caution: His testimony is graphic, chilling, and possibly disorienting)

Insanity is a legal definition and, therefore, a creature of legislative invention. It is not a recognized mental illness. Whether a person is insane when they commit a crime, depends on the statutory definition in effect in the jurisdiction where the crime was committed.

II. The United States

Several rules have been applied in the United States, although today, the M’Naughten test prevails in most jurisdictions.

A. M’Naughten Test

A majority of the states in the United States follow the M’Naughten Rule, which is based on a common law English case and requires proof of two elements, a cognitive and a volitional element:

Whether at the time that he committed the offense, the defendant

1. Was suffering from a mental disease or defect, such that he could not distinguish between right and wrong, (the cognitive element) and

2.. Conform his conduct to the requirements of law (the volitional element).

I do not believe there is any question that Breivik would be found sane in a jurisdiction applying the M’Naughten Rule because, regardless whether he was suffering from a mental disease or defect, he has admitted that he knew killing was wrong.

B. Irresistible Impulse Test

The irresistible-impulse test is a modification of the M’Naughten Test that retains the first prong (i.e., suffering from a mental disease or defect) but no longer requires that the defendant be unable to tell right from wrong, if, due to an irresistible impulse, he is unable to conform his conduct to the requirements of law. In other words, although he can distinguish between right and wrong, his mental illness eliminates his ability to choose how to act and his crime is the sole product of his mental illness. Alabama was the first state to adopt it in 1887.

C. Durham Test

The Durham test, which was developed in the 1950s, is similar to the irresistible impulse test. Under this test, a defendant is insane, if his crime was the product of his mental illness. That is, but for his mental illness, he would not have committed the crime.

The first team of mental health experts diagnosed Breivik as a paranoid schizophrenic acting “compulsively based on a delusional thought universe.” This diagnosis appears to satisfy both the irresistible-impulse and Durham tests.

D. Substantial Capacity Test

In 1962 a committee of judges, lawyers and professors selected by the American Law Institute developed the Model Penal Code (MPC) in an effort to rewrite and standardize the criminal laws in the United States. Since then, most states have adopted most, if not all of its provisions. Regarding the insanity defense, the Committee invented a new rule called the substantial-capacity test. According to Wikipedia,

Under the MPC standard, which represents the modern trend, a defendant is not responsible for criminal conduct “if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” The test thus takes into account both the cognitive and volitional capacity of insanity.

Since the public outrage that followed John Hinckley’s insanity acquittal for his attempted assassination of President Ronald Reagan, most jurisdictions in the United States now follow the M’Naughten test and place the burden of proving insanity on the defendant

I think Breivik would be found insane under the MPC substantial-capacity test, although there is certainly a legitimate argument that, despite his mental illness, he retained both the capacity to know that what he was doing was unlawful (the cognitive element) and the capacity or ability to decide not to do it (the volitional element). The outcome under this test ultimately depends on what constitutes “substantial” capacity.

III. Norwegian Law

Whether a defendant is insane under Norwegian law depends on whether he was psychotic while committing the crime. That means the defendant has lost contact with reality to the point that he no longer was in control of his own actions. This test eliminates the volitional element of insanity and focuses entirely on the cognitive element.

IV. The Breivik Issue

Many people have disagreed with the first psychiatric report in the Breivik case (diagnosis of paranoid schizophrenia) because his conduct demonstrated a considerable capacity and ability to premeditate over a lengthy period of time and carry-out a complicated scheme to commit mass murder. They ask whether a person who suffers from paranoid schizophrenia could do what he has admitted and boasted of doing.

Due to this concern, the court appointed a second panel to evaluate Breivik and it concluded that he was not insane. Rather than a paranoid schizophrenic, this panel concluded that he suffers from a narcissistic personality disorder, which is not a mental illness.

V. Does Breivik Suffer From Paranoid Schizophrenia With Double Bookkeeping?

While it is generally true that a person who suffers from paranoid schizophrenia would not be capable of the premeditation and planning exhibited by Breivik, there is a condition called “double bookkeeping” in which the patient lives in two worlds at the same time, the delusional world and the real world. Both worlds seem equally real to the patient who has no difficulty believing that other people do not see all that he sees or hear all that he hears. This condition was first identified by Bleuler.

If I were a judge in the Breivik case, I would be inclined to conclude that he is delusional and psychotic, particularly because he is so insistent that he is sane, as opposed to claiming insanity and attempting to act crazy to support his claim. At the same time, the vast majority of paranoid schizophrenics are incapable of his planning and actions. His ordinary or sane thinking seems narcissistic, so I am inclined to think he suffers from the relatively rare form of paranoid schizophrenia called double bookkeeping in which he suffers from both paranoid delusional thinking and a narcissistic personality disorder.

I would ask both teams of psychiatrists to comment on the possibility that I raise before making a decision, although I would be leaning toward a finding of insanity.

No matter the outcome of the debate, I doubt Breivik will ever be deemed safe to be released. However, the development of insanity law will likely be affected.

Finally, the quiet elegant dignity of the Norwegian people while according Mr. Breivik his right to due process of law is one of the most amazing and inspirational events I have ever witnessed.


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