Zimmerman: I Need to Correct the Record and Apologize

August 21, 2012

For the record, I was mistaken when I said Trayvon died instantly, he would have lost consciousness immediately and it would have been impossible for him to speak.

I believed I was speaking the truth when I said that and I was mistaken.

Patricia contacted Rene Stutzman of the Orlando Sentinel and asked her to follow-up on an interview she had with Dr. William Anderson, a pathologist, regarding whether Trayvon Martin would have been capable of speaking after sustaining the gunshot wound to his heart that also collapsed both lungs.

This was her response:

“I followed up today with Dr. William Anderson, one of the pathologists quoted in the story.

He says that a penetrating gunshot wound to the chest, such as Trayvon suffered, results in the gradual deflation of the lungs. They do not, he said, collapse like a balloon that’s been popped.

Trayvon could have spoken after the shooting for a few seconds or a bit longer, he said.

[Emphasis supplied]

Now that we know Trayvon could have spoken after the shooting for a few seconds or a bit longer, let’s remove the focus of the debate from me and what I said back to where it belongs. That is, was George Zimmerman the person who uttered the horrific terrified scream that abruptly ended with a gunshot?

I say it was not George Zimmerman because, according to him, he did not know if the shot hit or missed Trayvon Martin, so he kept screaming for help after the shot. Yet, his screams for help are not audible on the recording to which we have listened. Also, I have listened to that recording many times and I do not believe that George Zimmerman’s voice, as recorded on the exemplar, matches the voice of the person screaming in the background of the 911 recording. I do not believe his voice is even in the same ballpark and I do not believe the jury will have any difficulty deciding that Trayvon Martin is the person screaming.

I think Dr. Anderson’s statement hurts Zimmerman because it means Trayvon Martin died in terror and unimaginable suffering as he consciously suffocated on his own blood.

Even worse, Zimmerman straddled him sitting on his back adding to his pain and suffering and he specifically told W13 not to call 911.

Why it’s almost as if he wanted to make certain Trayvon Martin was dead before the police arrived because as we all know, dead men tell no tales.

That is not likely to impress a jury favorably.

In fact, I would not be surprised if they regarded that as convincing evidence of a depraved mind and convicted George Zimmerman of the crime of murder in the second degree virtually assuring a life sentence, instead of “merely” sentencing him to 25 years.

Thanks to Patricia for pursuing this issue with Rene Stutzman at the Orlando Sentinel and reporting back to us. Thanks also to Pliaja for pressing me for an answer.

We all need to do our best to ascertain the facts, let them speak for themselves, and beware of attempting to force square pegs into round holes. That certainly applies to me just as it does to everyone else.

Namaste

Carry on.


Zimmerman: How Will the Defense Deal with the Terrified Scream?

August 20, 2012

We are far enough into the Zimmerman case to take a moment, step back and look at the big picture.

Pretend you are defense counsel and ask yourself what obstacle(s) must you absolutely overcome in order to have a chance to win the case. No matter what George Zimmerman and his defense team say in public, with a basement 25-year mandatory minimum sentence up to a potential life sentence at stake, they cannot afford to engage in delusional and wishful thinking or false and over confident expectations about winning the case. There comes a time when the bullshit must be put on hold and cold analytical rational thinking must be applied to assess the strengths and weaknesses of the defense case.

The terrified scream is one enormous obstacle to a defense victory. In this recording of a 911 call, you can hear the scream in the background and the single gunshot that appears to abruptly end it.

If you have not already done so, take a moment to listen to it and when you do, pretend that you are a juror hearing it for the first time.

After the shot, you will hear George Zimmerman’s voice yelling for help. Police recorded him screaming for help after he consented to provide an exemplar for comparison purposes. At the time he provided it, he did not know the terrified scream had been recorded in the background of a 911 call. For comparison purposes, an audiologist added his exemplar to the recording of the 911 call after the scream ended.

Even the most loyal Zimmerman supporter must be able to hear the problem.

To make matters worse for Zimmerman, I believe we can reasonably anticipate that there will be expert testimony under Rule 702 from the Assistant Medical Examiner who conducted the autopsy (he is a forensic pathologist), that the fatal shot destroyed TM’s right ventricle and collapsed both of his lungs such that, to a reasonable medical certainty whether he were conscious or not, he would not have been able to push any air past his vocal cords to cause a sound.

Therefore, if I were defense counsel, no matter what I said in public, I would tell GZ that we needed to figure out a way to exclude his voice recording so that the jury would not hear it and compare it to the terrified scream.

Why?

The answer is simple. If the jury hears that tape and compares it to the terrified scream, the case is over for George Zimmerman. That should be obvious even to the most fervent Zimmerman supporter.

The outcome of a motion to exclude that recording may determine the outcome of the trial and that is why the defense must come up with the best argument possible to exclude it from being admitted into evidence.

I call these sorts of motions potential outcome-determinative motions that must be won to have a chance to win at trial.

I would argue that the two screams should not be compared to determine if they match because the conditions in effect for both screams and the technological equipment used to record them were so different that there is no accurate and reliable way to compare them.

In other words, George Zimmerman did not fear for his life when he provided his exemplar, so his voice was not driven by fear and could not reasonably be expected to match the scream in the background of the 911 call. Also, the technological equipment used to record the scream and Zimmerman’s physical location where he provided the exemplar are not the same.

Therefore, the prejudicial value of permitting the jury to listen to and compare the recordings of both screams vastly outweighs the probative value and for that reason the exemplar of Zimmerman’s voice should be excluded.

The evidence rules in question here are rules 401 and 402 defining relevant evidence (evidence that has probative value regarding issues in the case) and 403 (excluding relevant evidence whose prejudicial value outweighs its probative value)

Put another way in non-lawyer language, you cannot compare apples to oranges and expect to get a reliable and accurate result.

The prosecution team probably realizes that the defense has to file this motion and, just as I have anticipated the defense argument, they will anticipate it.

The question is what will they say in response.

I believe they will argue that the differences identified by the defense are insignificant and go to the weight that should be given to the evidence rather than to its admissibility.

In other words, this is a simple matter that does not require expert testimony. Rule 702 provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based on sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

The italicized language limits the use of expert testimony to matters that require the assistance of an expert for a jury to evaluate and decide. This issue merely requires jurors to listen to two recordings and compare them. This is a task that people routinely perform multiple times every day without the need of an expert’s assistance.

If you put yourself in the position of a judge who has to resolve this issue, you will see that the basis of the dispute between the parties comes down to whether the differences mentioned by the defense are significant or insignificant. How can you answer that question, unless you hear from experts?

The lawyers probably will anticipate that reaction from the judge, so you might reasonably expect the lawyers on both sides will attach supporting affidavits from their respective experts.

If I were the judge, I would schedule a pretrial evidentiary hearing for each side to present testimony from expert witnesses specifically addressing the apples to oranges problem.

In Daubert v. Merrell Dow, Inc, 509 U.S. 579 (1993), the SCOTUS interpreted federal Rule 702 to require trial judges to act as a gatekeeper in evaluating whether scientific evidence is sufficiently acceptable and reliable to be admitted into evidence and considered by a jury.

While the two recordings are not “scientific evidence,” the issues raised by the defense may require expert testimony from audiologists to determine if its concerns are sufficiently significant to exclude Zimmerman’s voice exemplar for comparison purposes under Rule 403, or to admit it for comparison purposes as relevant evidence under Rule 402, subject to testimony from experts on each side. That is, allow the evidence in and let the jury decide how much weight to assign to it.

Since there are only two possibilities as to the identity of the person screaming in the background of the 911 call, the dispute regarding that person’s identity reduces to whether George Zimmerman is that person.

If he is not, the jury will not have any difficulty identifying the person screaming.

This is how experienced lawyers and judges deal with important legal and factual issues in a case.


Ruthie Gets New Felony Charges: Frog Gravy 15

August 20, 2012

by Crane-Station

Flower. Jail art
Jail Art by Crane-Station

Frog Gravy is a nonfiction incarceration account.

Inmate names are changed.

Frog Gravy contains graphic language.

McCracken County Jail, Cell 107, April, 2008

Ruthie’s 49-year-old mother just died. She was obese, like Ruthie, and she chain-smoked. She lived alone in a trailer. No one checked on her the entire weekend. She was found Monday, sitting next to the air conditioner, with an inhaler in her hand. The air conditioner was off, so the skin on the body split open and turned colors; the funeral will not be open casket.

Ruthie sits next to me at a steel table with a no-shank pen and paper. She starts to write a letter to a treatment center:

“I’m writeing to see if I could get into your program
Im really own drugs bad especily crack cocane I started using when I was 12 years old and it was pot then I started dranking at 16 then started snorting cocane at age 17 then about 19…”

“How do you spell snortin’?” asks Ruthie.

“s-n-o-r-t-i-n-g,” I reply.

She thanks me and continues:

“…then about 19 crack cocane I stop using drugs there for awhile when I found out I was pregnet I had 2 little girls did good for awhile unlike the father of my kids, my old man, went to jail for about 2 years at first I stayed clean about 4 months after he got locked up.”

This is the first and only period in the letter so far. She continues:

“then things got hard for me, like paying bills, supporting my kids, just life in general, and everyone around almost did crack cocane, so I look for that for an axcuse, to start back smoking crack-cocane, I started smoking crack-cocane for about the first 6 months then started doing it all almost, But I never really been addicted to pills, like I’ll have a crack pipe and a meth pipe goin at the same time and my old man wuz sellin dope and doin weekins in jail…”

Ruthie giggles and says, “A crack pipe and a meth pipe at the same time, that is high, don’t you thank that’s high?”

She continues writing:

“…my reasons I looked up to my sister when I wuz a child is my sister took care of me when my mom wuz in and out of jail and on drugs.”

Ruthie never knew her real mother, the one who just died, until Ruthie was 18, and they met each other here in this jail. Until that time, Ruthie had a last name and a social security number given to her by her foster parents. Then, her real mother gave her a name and a social security number, since the foster parents had been sexually abusive.

I ask, “What about your father?”

“Oh, he was murdered,” replies Ruthie. “I got a tattoo of him right here, on my arm. Yeah, he was murdered. It was in the news.”

“What happened to him?” I ask.

“Oh, it was over money. They done hung him with his own belt buckle. This man and this lady.”

Terry says, “Well fuck me runnin’.”

“They tried to stuff him into the trunk of a car, but he was too big, so they done drug him back into the house. I saw his body. He’d been dead for a week. He was split open, and there was maggots everywhere. Seein’ that changes you. I ain’t been right after seein’ that. Don’t you think it changes you, Rachel?”

“I cannot imagine that,” I say.

Down the hall, a guard yells at a white man in an isolation cell to “stop acting black,” and further down the hall, Harry yells from his isolation cell, “HELP! Let me out! Helpmehelpme help. HELP!” The mailman comes and retrieves Sirkka’s outgoing trick letters that she has written in hopes of receiving some commissary money.

Ruthie says, “And Mama’s body done swolled up and busted. They cain’t have no open casket. They say the smell was awful.”

Terry asks, “Where did your mama live?”

“The trailer park out Twin Oaks Road by the church and down by the liquor store.”

I note that everything in Kentucky seems to be in relation to a church, a jail or a liquor store.

Ruthie says, “Yeah, and you know when that lady came by the cell with Brother Phillip?”

“Uh-huh.”

“She had me sign some papers to say they could sell Mama’s trailer, and car, and all her things, so they could bury her. They said that that burial insurance wasn’t no good.”

“Oh jeez,” I say. “It was probably a scam.”

“Now I ain’t got nowhere to go when I git out,” says Ruthie. “I ain’t gonna have nothing.”

Christie says, “You signed something?”

I ask, “Do you have a copy?”

“No,” says Ruthie. “I shouldn’t a signed it, huh?”

Christie says, “Ruthie! Don’t ever sign anything when you don’t know what it is!”

In the next day or so, Ruthie leaves the jail in handcuffs, to spend ½ hour at her mother’s funeral. One of the jail guards, Sally, knew Ruthie’s mother and sent flowers; they were the only flowers that anyone sent. The day after the funeral, guards come by and get Ruthie, and she returns to the cell in tears and in hives. She has been charged with two new felonies, each carrying a potential additional five-year sentence: giving a false name and giving a false address.

The address is false, because the trailer was sold, to pay for the mother’s burial.The name was false, because Ruthie provided both her foster care name and the name that her real mother had given her.

Ruthie was 9th-grade special educated and did not understand the forms. She is on disability and cannot even work a cash register because she cannot count back change. She is obese, because she does not know anything about nutrition or diet. She does not understand her own drug addiction, and she does not really even understand her original charges.

We again admonish Ruthie for signing forms that she does not understand. We tell her to go before the judge and explain her inability to comprehend, her education level and her learning disability.I feel a terrible sense of guilt, because Ruthie had initially asked me for help with the forms, and I told her that it was inappropriate for me to see her private information and help her with legal documents. I honestly thought that an appropriate person such as a public defender would help Ruthie.

I was wrong.


Zimmerman: Pssst! Hey Buddy, I Hear You Need an Expert Witness

August 19, 2012

Let us say that you are a prosecutor representing the State of Florida in State vs. George Zimmerman. You have been added to the trial team and you are going to be in charge of forensics and expert witnesses. Angela Corey wants to meet with you tomorrow morning at 7 am sharp. What do you do?

(a) Announce you are opting for early retirement to spend more time with your family;

(b) Look up the word forensics to see what it means before you announce that you are opting for early retirement to spend more time with your family;

(c) Call the Director of the Crime Lab and ask for help; or

(d) Make sure you know how to spell forensics and then pretend you know everything there is to know about the subject.

The correct answer, as it is in all cases where you know that you are not an authority on a subject, is to contact someone who is an authority and ask for help.

Prosecutors are fortunate because they can contact the director of their state crime laboratory.

Defense counsel who know little about science and even less about forensic science need to call someone like me who can review the case, spot forensic issues, and steer the lawyer in the right direction toward knowledgeable and respected experts in the various areas of forensic science that are relevant to their case.

I used to do that when I was a co-chair of the Forensics Committee of the National Association of Criminal Defense Lawyers. All calls from member lawyers west of the Mississippi River were referred to me and I spent many hours helping people out.

Let’s take a look at the rules of evidence and see what they have to say about expert witnesses. Evidence Rule 702 provides:

Testimony By Experts

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based on sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

Most of the witnesses who testify in trials are fact witnesses. They testify about something that they perceived through their five senses that is relevant to determine the outcome of a lawsuit. They are called fact witnesses because, with few exceptions, they are not permitted to express their opinions about facts they observed or infer the existence of facts that they did not actually observe.

Lawyers must be ever vigilant to spot and object to a fact witness expressing their opinion by representing it as a fact they observed.

If that happens, the lawyer should stand and say,

“Your Honor, I object because this witness is impermissibly expressing her personal opinion as fact. May I briefly voir dire the witness to lay the foundation for my objection.”

The judge will allow you to break in to opposing counsel’s examination.

Then you look the witness in the eye and ask,

Q: Ms. Witness, You just testified that my client stuffed a crocodile under the back seat of your patrol car, didn’t you.

A: Yes, I did.

Q: This was on the way to the jail, correct?

A: Yes.

Q: You were driving correct?

A: Yes.

Q: Watching the road ahead of you, right?

A: I reviewed your report, but I didn’t see you mention anything about seeing a crocodile in your rear view mirror, correct?

A: Yes, but

Q: And my client was handcuffed with her wrists behind her back, right?

A: But, but she had to have done it because . . .

Your Honor, this witness expressed an opinion, which is improper. Therefore, I move to strike her testimony when she said my client hid the crocodile under the back seat.

I also ask you to instruct the ladies and gentlemen of the jury to disregard that testimony.

The judge should comply with your request. Then you thank him and sit down.

Now opposing counsel gets to resume questioning the witness.

This type of interruption can throw opposing counsel off stride, but an experienced lawyer will just smile and remind the witness to stick to the facts they observed.

Another way to accomplish the same result is to wait and do it during cross examination.

Expert witnesses, unlike fact witnesses, can express their opinions. Depending on the complexity of the case you have, there may be any number of areas where you want to put an expert witness on the stand to express an opinion regarding a matter and this is where science enters the courtroom to establish facts and resolve disputed issues of fact. We call this forensics.

Under Rule 702 an expert witness may testify in a case whenever a jury is likely to need assistance to understand or to determine a fact in issue in a trial.

There are many disputed questions of fact in the Zimmerman case that cannot be resolved by ordinary fact witnesses,

In fact, very few disputed issues of fact in this case can be resolved by the fact witnesses who are all over the place with conflicting and confusing statements about what they saw or heard.

Only one fact witness, George Zimmerman, knows what happened because he killed the other witness, Trayvon Martin.

The case would be open and shut, if there were no forensic evidence and George Zimmerman’s statements were consistent with each other and consistent with the forensic evidence. As we have seen, however that is not the case.

To solve this case, we have to put aside our fear of science, roll up our sleeves and grapple with science.

Okay, now pick a side, either defense or prosecution and pretend you have to meet with Mark O’Mara or Angela Corey tomorrow morning and tell them in which areas of science they need to retain experts.

We already know some areas from the reports we have read: DNA, blood spatter, pathology, toxicology, firearm identification, trace evidence analysis, audiology, voice stress voice comparison analysis.

What other areas of science do you think should be investigated?

Another thought to consider is that our legal system is an adversarial system where each side hires its own experts to fight it out in front of a jury that knows little about science.

Would it be better to have the court appoint independent experts to to examine the evidence and testify subject to cross examination by both sides?

Should the Court or the jury decide disputed issues that can only be resolved by scientific analysis?

What about the problem of junk science?

Pleasant dreams.



In re: The Donation Button

August 19, 2012

While a former criminal defense attorney specializing in death penalty defense and forensics cases and during my tenure as a law school professor, I became increasingly aware of the public’s growing interest in the technical nature and workings of the United States legal system.

Your generous support will ensure that not only will you be able to continue to stay well informed about today’s most important and controversial legal issues, but also will be able to evaluate for yourself the strengths and weaknesses of the legal cases and strategies of both prosecuting and defense attorneys.

You will no longer just be a spectator of the American legal system, but an informed participant in understanding the historic court room battles of our time.

Thank you for your support.


Will George Zimmerman Testify?

August 18, 2012

Many of you have asked questions regarding whether George Zimmerman must testify at the immunity hearing or at trial. Others, particularly Zimmerman supporters, have expressed an opinion that he can prevail without having to testify because he already said everything that needs to be said to the police.

The quick answer is he is not legally required to testify, but he cannot possibly win unless he does testify. How else does he get his self-defense claim into evidence?

Yet, at the same time, he probably cannot win because of his many conflicting statements.

First, every defendant in a criminal case has a 5th Amendment right to refuse to testify and, if they decide not to testify, the jury will be instructed that it cannot assume anything regarding why the defendant chose not to testify.

The reason for this rule is that a defendant may decide not to testify for any number of possible reasons and it would be unfair to allow the jury to speculate as to the “real” reason. In addition, a defendant cannot be punished for exercising a constitutional right.

Second, every defendant has a right to testify, if he decides to do so. The decision to testify or not to testify is his and his alone. The defendant’s lawyer can recommend for or against testifying, but it’s up to the defendant to make that decision.

Third, if the defendant testifies, he can be cross examined regarding everything he said and the Court will grant a prosecutor wide latitude to cross examine.

Therefore, George Zimmerman gets to decide whether he will testify at the immunity hearing and the trial.

Next, let’s take a look at all of his statements to date and group them into two categories: statements to police officials during custodial interrogations and statements to other people.

Statements to police officials during custodial interrogations are admissible at trial,

(1) if he was advised of his 5th Amendment right to remain silent and his 6th Amendment right to contact an attorney and have him present during the interrogation; and

(2) he voluntarily, knowingly and intelligently decided to waive or give up those rights and answer questions.

This is the foundational requirement that the prosecution must satisfy to introduce a defendant’s custodial statement into evidence. It is based on Miranda v. Arizona, 384 U.S. 436 (1966). I have reviewed the discovery and believe all of his custodial statements satisfy the Miranda Rule and are admissible subject to the hearsay rule.

Statements to others, including the Sean Hannity interview, have no foundational argument like Miranda and are admissible, subject to the hearsay rule.

Now we get down to the difficult part of the analysis, which is understanding the hearsay rule.

Let us begin with a definition. Evidence Rule 801(c) defines hearsay as follows:

“Hearsay” is a statement, other than one made by the declarant (i.e., the person who made the statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

For example, if Blue Shenanigans were to testify that George Zimmerman (i.e., the declarant) told her he knew Trayvon Martin was dead before the police arrived at the scene, and the prosecution offered it during its case in chief to prove that he knew Trayvon Martin was dead before the police arrived at the scene (i.e., the matter asserted in the statement), the statement would be hearsay.

Right?

Nope, because even though it meets the definition of hearsay, the rules of evidence carve out a huge exception to the rule that’s called an Admission by a Party Opponent. See Rule 801(d)(2). This rule specifically defines admissions by a party opponent as non-hearsay.

This is the way it works. George Zimmerman is a party to this case because he is the defendant. The party opponent is the State of Florida, which is represented by the Angela Corey and her team of prosecutors.

Pursuant to this rule they can introduce into evidence any statement by Zimmerman that they choose, including his custodial statements to the police, assuming they satisfy the Miranda rule, which they apparently do.

Notice that they are not required to introduce any of his statements and the defense has no say in which statements they introduce and which statements they leave out.

This means that all of the exculpatory statements he made to support his claim of self-defense are inadmissible hearsay, unless the prosecution decides to offer one or more of them as an admission by a party opponent.

Needless to say, the prosecution is not going to do him any favors and introduce any of his exculpatory statements and, since the defense cannot introduce them, the judge will not be able to consider them during the immunity hearing and the jury will never get to hear them at the trial.

But that’s not fair, you say.

That complaint happens in every courtroom across America every day, but it’s the law.

This is why, as a practical matter, George Zimmerman must take the stand and testify.

Can he refer to his exculpatory statements while he is testifying?

No, because they are hearsay.

What happens after he finishes telling his side of the story by answering his lawyer’s questions on direct examination?

The prosecutor who cross examines him will confront him with every statement he made to a police official or to any other witness it knows about that is inconsistent with or contradicts a statement he made while testifying on direct examination.

Given the number of times he has made improbable, inconsistent and contradictory statements, the cross examination could last several days.

I know this because I have done it to witnesses many times.

Cross examination by confronting witnesses with their prior inconsistent statements is one of the most effective and powerful tools a trial lawyer has to utterly destroy a witness.

The key to cross examining George Zimmerman will be not to beat him up so bad that the jury begins to feel sorry for him.

This is why it is so vitally important for suspects to keep their mouths shut when they are questioned by police. They cannot help themselves because their exculpatory statements will be inadmissible hearsay at trial. They can only hurt themselves by saying something that the prosecution uses to damage their case pursuant to the admission-by-a-party-opponent rule.


Zimmerman: Did the Defense Change Strategy?

August 17, 2012

Up until Mr. O’Mara’s press conference on Monday afternoon, the defense had been claiming that George Zimmerman was not following Trayvon Martin.

Instead, he was coincidentally running in the same direction looking for a street name and an address to provide to the dispatcher so that he could relay it to the officer en route.

Unfortunately for the defense, however, Zimmerman jogged right on past the front doors and garage doors of several townhouses directly in front of him and slightly to his right on Twin Trees Lane. Yes, the addresses were in plain view.

When the dispatcher picked up on his heavy breathing and asked him if he were following Martin, he answered, “Yes.”

The dispatcher said, “We don’t need you to do that,” and Zimmerman responded, “Okay.” Nevertheless, he continued to breathe hard as though he continued running for another 15 seconds or so.

He told the police he went past the open space between the two rows of townhouses, where he had seen Martin disappear, to the next street over. That street is Retreat View Circle, but as it fortuitously turned out, he did not have to find a street sign to discover that because he recognized it as the street he lives on.

Will wonders never cease.

He told the police he looked around but could not find any addresses to give the dispatcher, so he decided to retrace his steps intent on returning to his truck.

There is no shortage of addresses that would have been visible there although none of them were close to where he had last seen Martin.

As he approached the T intersection where the N/S sidewalk between the two rows of townhouses intersects the cut-through sidewalk between Twin Trees Lane and Retreat View Circle, he told the dispatcher to tell the officer en route to call him when he reached the neighborhood. Then he terminated the call.

He said Martin materialized suddenly out of the gloom standing on the N/S sidewalk a few feet south of the intersection and asked him if he had a problem.

When he said, “No,” and reached for his phone to call 911, Martin said, “Now you do,” and punched him in the nose stunning him and knocking him to the ground.

He said Martin then jumped on top of him and straddled him as he was lying on his back and began repeatedly slamming the back of his head into the concrete sidewalk. As he was about to lose consciousness, he grabbed his gun and shot Martin in the chest killing him.

Aside from the absurd claim that he was searching for a street name and an address to provide the officer en route — there are only three streets and he had lived in the neighborhood for three years and patrolled it for several months — there is a major timing problem and Martin’s body was found approximately 40 feet south of the T intersection..

Approximately two minutes went by before he encountered Martin.

Where was he and what was he doing?

I believe he lied to the police when he told them he did not follow Martin and when he claimed Martin assaulted him at the T intersection.

I believe the evidence at trial will show beyond any doubt that he was hunting Martin with the intent of restraining him until the officer arrived.

At the press conference on Monday, Mark O’Mara conceded that this is not a stand-your-ground case. He said it is a traditional self-defense case. He still intends to seek a dismissal of the murder charge at an immunity hearing, but he will not be arguing that Zimmerman had a right to stand his ground.

Sounds to me that the defense has decided to jettison Zimmerman’s claim that he did not follow Martin and did not stray south of the T intersection.

But if he admits to hunting Martin, isn’t the jury likely to conclude that he was hunting with the intent of physically restraining Martin?

Recall how he so indelicately expressed his frustration earlier during the call with the dispatcher,

“These assholes, they always get away.”

Did he not intend to make certain that Martin was one “asshole” who was not going to get away?

My question for y’all is, assuming I am right, will this decision help or hurt the defense?

Specifically, can giving up the obvious lie and apologizing for it, transform Zimmerman into a credible witness, or just make matters worse?


Zimmerman Open Thread: What Was the Trajectory of the Shell Casing

August 16, 2012

I’ve been out and about most of the day and never had an opportunity to write a new post today.

I did get something accomplished. I passed my motorcycle road test and now I don’t have to wear a helmet anymore.

My dark and nasty side always wanted to be a Hells Angel. Oh well, better to leave that persona in dreamland.

The thread is getting too long on the Character Assassination article, so I thought I would start a new thread and, for starters, work off this website that I had not seen before.

Check out the trajectory of the ejected shell casing on the KelTec PF9 and tell me what y’all think about the relative positions of the bodies when the fatal shot was fired.

(H/T to Sling Trebuchet for bringing the video to my attention)


Important Announcement Regarding Character Assassination

August 15, 2012

As a courtesy, I am letting everyone know that I banned Justincaselawgic this morning at 11:14 am following an unpleasant exchange of comments on the thread titled:

13 Questions in Search for an Answer

In an effort to discredit me, he posted and confronted me with an affidavit that I had signed several years ago in support of an argument in a post conviction habeas petition alleging that I had provided ineffective assistance of counsel in a death penalty case that I tried and lost. The client’s name is Darrold Stenson.

After I signed the affidavit, Mr. Stenson’s lawyers discovered important exculpatory evidence that I had requested but not received before trial. The prosecutor denied that the evidence existed when, in fact, he knew that it did.

Had he acknowledged that the evidence existed and turned it over to me, I would have assessed and tried the case differently. Instead, however, Mr. Stenson and I disagreed on how to proceed with the case and our conflict eventually led to a breakdown of the attorney-client relationship.

The discovery of this important exculpatory information led defense counsel to request a new trial on the basis of the newly discovered evidence. After a hearing in which I testified in support of the motion together with expert witnesses who testified regarding the significance of the evidence, the Washington State Supreme Court reversed Mr. Stenson’s conviction and death sentence and remanded the case to the trial court for a new trial.

An important reason why the evidence was so critically important to the outcome of the trial, was that I had successfully persuaded the trial court to exclude all of the DNA evidence in the case, both RFLP and PCR.

I believe this is the only death penalty case in the United States in which defense counsel achieved such a favorable result for a client.

I am delighted with the result for Mr. Stenson, but angry and disappointed that it took 16 years of his life under sentence of death to straighten it out.

I wrote an article about the case and published it here on May 10, 2012. The article has links to the majority and minority opinions.

Someone in the pro Zimmerman camp has obtained a copy of my affidavit, which was on file in the case, and has been spreading it around the internet together with a false statement that I was disbarred from the practice of law for negligent performance in the Stenson case.

I was not disbarred, suspended or otherwise disciplined by the Washington State Bar Association. No complaint was ever filed against me with the bar association or anywhere else alleging that I had done anything wrong in Stenson’s case or any case in which I was involved and no investigation was ever conducted. I have never been sued for malpractice.

Quite the contrary, I am proud of my career as a criminal defense lawyer.

Here are two of my accomplishments:

I was a co-recipient of the National Law Journal’s prestigious Indigent Defense Award in 2000 awarded to me on behalf of Innocence Project Northwest, an organization that I co-founded at the University of Washington School of Law, for my efforts recruiting 40 lawyers to work for free with law students to free 17 innocent men and women who were wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring case.

I also was a co-recipient of the 2004 King County Washington (Seattle) Lawyer of the Year Award together with the other 7 lawyers who represented Gary Ridgway, the notorious Green River Killer who pled guilty to killing 48 women in exchange for a life without parole sentence.

I voluntarily surrendered my license to practice law after I retired from the practice of law and went into teaching.

I do not know how, why, or when justincaselawgic obtained a copy of my affidavit, but he admitted that he knew about the Stenson decision. He said he posted the affidavit to prove his accusation that I am a weak-kneed lawyer who will not fight for his clients and pleads them guilty when they are innocent.

Nothing could be further from the truth and my entire career is a testament to the contrary.

He also acknowledged that he knew I would ban him when he posted it.

I regret and apologize for telling him to take the affidavit and shove it up his ass. I lost my temper and that was not appropriate.

I do not regret or apologize for banning him.

I wrote this article to give y’all a heads-up regarding the lengths to which the pro Zimmerman camp will go to lash out at anyone who dares to challenge Zimmerman’s unsupported claim of innocence.

And it’s not limited to me. My wife, whom y’all know as Crane-Station and my daughter have been attacked by publishing personal information about them on the internet.

This fight is getting ugly which is probably a good measure of how close we are getting to the truth.

If you think we have it bad, think of Trayvon’s family.

Namaste


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