Zimmerman: Why No Amount of Lawyers, Guns and Money Will Save Him

September 27, 2012

The role of the lawyers during a criminal trial, whether prosecution or defense, is to present evidence through witness testimony via direct and cross examination, raise appropriate motions and objections at appropriate times, argue what facts have been proven or not proven to the jury, and argue to the judge which legal rules should be applied to resolve disputed issues that come up from time to time.

Lawyers are advocates, not witnesses. Juries are instructed in every criminal case that statements by lawyers are not evidence and may not be considered as evidence.

There are only two exceptions to this rule:

(1) By implication: When a lawyer asks a leading question and the witness agrees or disagrees, the jury may consider the answer as evidence that incorporates the lawyer’s statement in the question asked. As is true of any evidence admitted during trial, the jury gets to decide whether to believe or disbelieve the witness who agreed or disagreed with the statement and how much weight to give to the answer.

(2) By stipulation or agreement: When opposing counsel agree that the jury may consider a particular fact as undisputed. The stipulation then becomes part of the evidence the jury may consider.

Mark O’Mara will tell the jury during his opening statement that the evidence will show that Zimmerman killed Martin in self-defense. During summation, he can argue what facts have been proven or disproven in support of his argument that the prosecution failed to prove beyond a reasonable doubt that Zimmerman did not kill Martin in self-defense. The jury may not consider anything he says as evidence and the same is true for anything the prosecutor says.

Zimmerman’s statements to police and various other witnesses before trial may or may not be admissible at trial according to the rules of evidence.

Subject to the Rule of Completion, the prosecution may introduce any statement he made under the Admission by a Party Opponent Rule. The Rule of Completeness permits the defense to clarify the meaning or intent of any statement offered by the prosecution by completing the statement.

For example, let’s assume a defendant said during a long custodial interrogation at the station house, “Sure I did it. I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.”

If the prosecution elicited the statement, “Sure I did it,” the defense would be permitted on cross examination to elicit the rest of the statement, “I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.” The purpose of the rule is to prevent the prosecutor from abusing the Admission by a Party Opponent Rule by introducing bits and pieces of statements that misrepresent what was said.

Statements admitted under the Admission by a Party Opponent Rule are defined as not hearsay by the rules of evidence. Hearsay, of course is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.

The declarant is the person who made the statement and, but for the Admission by a Party Opponent Rule, a defendant’s statement would be inadmissible hearsay.

In fact, it is inadmissible hearsay, if the defense offers the defendant’s statement to prove the truth of the matter asserted. In the example above, the defendant’s statement comes in under the Rule of Completion because the prosecutor opened the door by using the admission rule to create a false impression that the defendant had confessed. If the prosecutor had not done that, the statement would be inadmissible hearsay, if the defense offered it to prove the defendant did not commit the crime.

The vast majority of Zimmerman’s statements to police and others before trial are inadmissible hearsay, if offered by the defense to prove the truth of the matter asserted in the statement.

I believe we can reasonably assume that the prosecution will not offer Zimmerman’s exculpatory statements during its case, so the jury will not have heard any evidence of self-defense when the prosecution rests its case.

Because of the hearsay rule, O’Mara cannot get any of Zimmerman’s exculpatory statements admitted to prove the truth of the matters asserted during the defense case, unless they would be admissible pursuant to one of the exceptions to the hearsay rule.

In another post, for example, I mentioned that Martin’s statements to Dee Dee expressing fear and describing what the creepy man was doing would be admissible to prove the truth of the matters he asserted because they are statements expressing an excited utterance and a present sense impression. Those are two exceptions to the hearsay rule.

Zimmerman’s exculpatory statements are not admissible pursuant to those exceptions because he had an opportunity and a motive to be deceptive after he killed Martin.

O’Mara probably will attempt to admit Zimmerman’s statements to the Physician’s Assistant at the family clinic where he sought treatment and permission to return to work. He will argue that Zimmerman’s statements are admissible as statements for purposes of medical diagnosis or treatment, an exception to the hearsay rule.

Unfortunately for Zimmerman, his claim of self-defense was neither relevant nor necessary for medical diagnosis or treatment. Therefore, those statements are not admissible under this exception to the hearsay rule.

In fact, Zimmerman probably will not even get a self-defense instruction, unless he testifies, because there will not be sufficient evidence to support giving a self-defense instruction. O’Mara cannot create a sufficient evidentiary foundation to support instructing the jury on self-defense by what he says during his opening statement because his statements are not evidence.

Therefore, Zimmerman has to testify. If he testifies, the prosecution gets to cross examine him. That means the prosecutor can confront him with every statement he made before trial that is inconsistent with or in conflict with a statement he made on direct examination.

During its rebuttal case after the defense rests, the prosecution can introduce any evidence it has that rebuts evidence presented by the defense during its case. This would include presenting forensic or other evidence that rebuts something Zimmerman said and it also includes evidence of bad character, if the defense opened the door by presenting evidence of good character during its case.

In conclusion, Zimmerman is between the proverbial rock and a hard place because he is unlikely to get a self-defense instruction unless he testifies, but if he testifies, his credibility likely will be destroyed by all of his inconsistent and conflicting statements to police and others.

Damned if he testifies and damned if he does not, George Michael Zimmerman is in such a hell of a jam that no amount lawyers, guns and money will save him from a lengthy prison sentence.

Open Thread Wednesday

September 26, 2012

I have to run some errands this afternoon and probably will not have time to write a new post today.

The pool is open.

No running on the deck.

Hasta Luego,


George Michael Zimmerman and the Thirteen Commandments of Criminal Defense

September 25, 2012

The First Commandment of Criminal Defense is thou canst not create a silk purse out of a sow’s ear, no matter how good you are. Some cases are dead-bang losers and you must be able to identify and dispose of them, if at all possible, without going to trial. That usually involves a plea bargain and a guilty plea.

There are two kind of plea bargains: charge bargains where charges are dropped or reduced in exchange for a guilty plea, and sentencing bargains where the prosecutor agrees to recommend a reduced sentence in exchange for a guilty plea.

You should be prepared to take a case to trial, if the prosecutor is unwilling to give your client a benefit in exchange for pleading guilty. The prosecutor must know that you are willing to do that or you will not get the best deal for your client.

The Second Commandment is thou shalt not fail to use your independent judgment and act in the best interests of your client. The relationship must be a professional one, not a codependent one. It is not a friendship of equals.

Your client hired you, or you were appointed to represent him, because you are a professional with the requisite knowledge and skill to do the job. Because of that knowledge and skill, which your client does not have, and your duty to use your independent judgment, you must be the boss in the relationship.

I can think of no better example of a difficult and self-destructive client than George Zimmerman. Four words illustrate the disaster that can happen when the lawyer permits the client to make the decisions:

The Shawn Hannity Interview.

If you cannot control your client, thou shalt withdraw from the case.

The Third Commandment is thou shalt not fail to do everything within your power to silence your client because the prosecution can use everything he says about the case against him.

If you cannot shut him up, thou shalt withdraw from the case.

The Fourth Commandment is thou shalt not fail to keep your client well informed about the facts and legal issues in the case. Just because you are the boss does not mean you are God. Keeping your client well informed and up to date is the best way to build trust and manage the attorney-client relationship.

The Fifth Commandment is thou shalt not assume that your client is telling you the truth. He might be and he might not be. Whether he is or not is not your responsibility or duty to determine. Nevertheless, consistent with your duties to keep your client informed and to be diligent and thorough, you do have a duty to inform your client about any contradictions and inconsistencies between his statement(s) and the evidence.

The Sixth Commandment is thou shalt not try your case in the court of public opinion. Nothing good can result, if you do. Two words summarize this rule beautifully:

Mark O’Mara

The Seventh Commandment is thou shalt not ask a question on cross examination unless you know the answer.

The Eighth Commandment is thou shalt never ask a question on cross examination that cannot be answered with a “yes” or a “no.”

The Ninth Commandment is thou shalt not encourage your client to testify unless it is absolutely necessary. Nothing good can come of it. Three words summarize this rule:

George Michael Zimmerman

The Tenth Commandment is thou shalt know forensic science well enough to spot issues, ask intelligent questions and choose qualified and credible expert witnesses.

The Eleventh Commandment is thou shalt not rely on the police to investigate your case. You must always work with an investigator.

The Twelfth Commandment is thou shalt always file a discovery motion requesting a prosecution witness list with a list of prior convictions of record for each witness and disclosure of any agreements with any witness to confer a benefit of any kind on the witness in exchange for the cooperation and/or testimony of the witness; all police investigation reports; witness statements; forensic reports and bench notes; your client’s statements, together with a list of all searches and seizures and an inventory of all property seized; and any exculpatory evidence, including impeachment evidence, in the possession, custody or control of the police and prosecution.

The defense has the burden of proving self-defense by a preponderance of the evidence at the immunity hearing. Therefore, it will go first.

Zimmerman’s statements to police and others are inadmissible hearsay, unless they are not offered to prove the truth of the matters asserted in the statements. Therefore, Zimmerman would have to testify to have any chance to win the immunity hearing.

If he testifies, however, the prosecution will have an opportunity to confront him with all of his prior inconsistent statements. That might take several days and could get downright ugly eliminating any chance of winning the immunity hearing. His predicament can be summarized in nine words.

Damned if you do and damned if you don’t

O’Mara might want to consider waiving the hearing, since he cannot win it and can only further damage Zimmerman’s credibility and standing in the court of public opinion, if he goes forward with it.

The burden of proof will switch back to the prosecution at the trial where it will have to prove beyond a reasonable doubt that Zimmerman did not reasonably fear imminent death or serious injury when he shot and killed Trayvon Martin.

I italicized “reasonably” because the test is objective, not subjective. That is, he must not only believe he is in imminent danger of death or serious injury, his belief must be reasonable.

Satisfying that burden should be easy since Zimmerman admitted to Serino that he had Martin under control with a wrist lock before he pulled his gun and shot him. He also admitted to the investigator who administered the voice stress test that, after he grabbed his gun, he extended his arm beyond his left hand to avoid shooting it, aimed, and pulled the trigger.

Assuming for the sake of argument that he believed he was in imminent danger of suffering death or serious injury, and I do not think the evidence supports that conclusion, his own words establish that his belief was not reasonable.

Even if Martin punched him repeatedly in the head with his fists and then he gripped Zimmerman’s head and slammed it repeatedly against the cement sidewalk, Zimmerman was no longer in any danger because he had Martin under control first with the wrist lock and then at gunpoint. Although his injuries bled copiously, they were not serious and he did not have to shoot Martin, much less kill him.

Moreover, he knew the police were en route and would arrive within moments, which they did. The evincing-a-depraved-mind-indifferent-to-human-life element is established by the unreasonable and unnecessary shooting.

There is no doubt that he intended to kill Martin because, as he said, he aimed and the shot went direct from front to back exploding the right ventricle and collapsing both lungs.

In the final analysis, Zimmerman’s own words convict him and all of the hullabaloo regarding whether Martin was a Super Bad Black Gangsta From Hell or the Second Coming of Jesus was totally irrelevant.

The truth is Martin was a good kid minding his own business that night.

The evidence will establish beyond a reasonable that the only thug out and about that rainy night in February was a burly armed vigilante who fancied himself to be the Sheriff at the Retreat.

His name is George Michael Zimmerman.

I will now close this essay with the Thirteenth Commandment:

Thou shalt not play the race card or trash the character of the victim of a homicide or other violent crime, such as a rape or an assault, when the victim is a child, in order to escape responsibility for committing the crime. The best example I can think of consists of three words:

George Michael Zimmerman

So let it be written

So let it be done.

(H/T to Logi for pointing out Zimmerman’s statement to Serino admitting that he had wrist control of Martin before pulling his gun and shooting him)

Zimmerman: Standard Objections on Direct and Cross Examination at Trial

September 24, 2012

Time for a change of pace.

In today’s post, I am going to provide you with a description of direct and cross examination during the prosecutor’s case in chief together with a list of the standard objections that you are likely to hear during the trial. I will cover the defense case in tomorrow’s post.

After opening statements, the prosecution will present its case in chief and rest when it’s done. To survive a defense motion to dismiss after it rests, the prosecution must have presented legally sufficient evidence to support its case.

The legal test for legally sufficient, or substantial evidence as it is called, requires the trial court to assume for purposes of the motion that all of the evidence presented by the prosecution is true.

The trial court must then decide whether that evidence would disprove each element of self-defense and establish each element of M2.

If the answer is yes, the trial court will deny the motion to dismiss.

If the answer is no, it will grant it.

These motions are rarely ever granted. They are routinely made without argument in order to preserve the argument for an appeal. Therefore, do not be surprised by such a defense motion or expect it to be granted.

The prosecution will present its case through the testimony of its witnesses. After a witness is sworn, the prosecutor will question the witness until finished. This is called direct examination.

With rare exceptions, the prosecutor will not be permitted to ask a leading question. A leading question seeks a yes or no answer. For example, the prosecutor might ask, “You saw the defendant straddling Trayvon, didn’t you?

Notice that, in effect, the prosecutor is testifying and the witness is agreeing or disagreeing as the case may be.

If this happens, the defense attorney will object on the ground that the prosecutor is leading the witness. The judge should sustain or grant objections to leading questions on direct examination.

Notice that I qualified the rule when I said, “With rare exceptions, the prosecutor will not be permitted to ask a leading question.” The rare exceptions are set-up questions. For example,

“Mr. Slade, I direct your attention to Sunday evening, February 26th, 2012, between the hours of 7 and 8 pm. You were at home at RATL during that period, weren’t you?

After the witness says, “Yes,” the prosecutor asks another leading question to set the scene.

“Did there come a time when you heard loud voices outside your home?”

After the witness answers “Yes,” the prosecutor switches to a non-leading question like this,

“Please tell the ladies and gentlemen of the jury what you heard.”

The witness then begins narrating his answer.

You may hear the defense attorney object stating,

“I object to the narrative form of the testimony.”

The judge should sustain the objection and ask the prosecutor to pose specific questions

Direct examination usually elicits answers to questions like, who, what, where, and when.

The goal of direct examination is to set the table with leading questions to focus the attention of the witness on a subject, event or document and have them tell their story in their own words with an occasional nudge to keep the testimony focused and on track.

You may hear an occasional objection to the relevancy of a question. Relevance is determined by the matters at issue in a case. The big issue in the case is whether the prosecution can disprove the elements of self-defense and prove the elements of murder 2.

Evidence is relevant if it tends to prove or disprove an element or issue in the case.

Relevant evidence is admissible subject to certain exceptions such as uncharged misconduct, character evidence, prior criminal convictions, and hearsay. I have covered those subjects in previous articles.

When the prosecution completes the direct examination of the witness, the defense attorney has an opportunity to cross examine the witness.

The major difference between direct and cross examination is that leading questions are permissible. In fact, they are not only permissible, they are the preferred way to cross examine a witness.

The ideal cross examination limits the witness to yes or no answers. The defense lawyer knows exactly what information he or she wants to elicit from the witness and if the answer is contrary to the expected answer, the lawyer is ready to impeach the witness to get the expected answer.

The usual way this is accomplished is to confront the witness with a prior inconsistent statement. Here is an example.

Q: Mr. Slade, you testified on direct that the traffic light was red when my client entered the intersection, didn’t you?

A: Yes, I did.

Q: Do you recall when I took your deposition in the prosecutor’s office on June 16th of this year?

A: Yes.

Q: You were under oath, weren’t you?

A: Yes.

Q: The prosecutor was present right?

A: Yes.

Q: Do you recall me asking the following question and you giving the following answer?

Q: You did not actually notice what color the light was when my client entered the intersection, did you?

You answered my question, Yes, didn’t you?

A: Yes.

A skilled cross examiner never asks the witness to explain his answer. Instead, he moves on to the next subject or ends the cross.

A skilled cross examiner never asks a question, if he does not know the answer and he never permits a witness to lapse into a narrative or retell their story.

The scope of cross examination is determined by the subject matter covered on direct. If the defense attorney asks a question regarding subject matter not covered on direct, you will probably hear the prosecutor object that the question exceeds the scope. The judge will sustain those objections.

The prosecutor may question the witness on redirect after the defense attorney is done. You might expect the prosecutor to attempt to rehabilitate his witness in the example just provided. Should he attempt to do so, he will have to do it by asking non-leading questions.

The scope of redirect is determined by the subject matter covered on cross.

Redirect can lead to recross and so on until both parties are finished with the witness.

Tomorrow, we will take a look at the defense case.

What Does Zimmerman’s Blood Tell Us?

September 23, 2012

We need to focus today on the information available to us regarding the fatal shot in order to determine as best we can the respective positions of Zimmerman and Martin when Zimmerman fired the fatal shot.

As we do so, we have to keep in mind that there are two bloodstains on Martin’s shirt, which he was wearing under the hooded sweatshirt. DNA analyst Anthony Gorgogne has identified Zimmerman as the source of Stain A. He also concluded that Stain D is a mixed sample of Zimmerman and Martin.

In yesterday’s article on the DNA results, I mentioned that those are the only bloodstains on Martin’s clothing that contain Zimmerman’s DNA. Depending on their location, I concluded that the bloodstains may be the result of dripped blood from Zimmerman’s head as he leaned forward over Martin’s body while he was dead or alive, or transferred blood from his hands as he touched Martin’s shirt.

Note that if we assume the fingers and palms of Zimmerman’s hands were bloody with his own blood, we would expect to see his blood on Martin’s hooded sweatshirt, if he grabbed Martin’s two sweatshirts together with his left hand and pulled them down and slightly to his left as he fired the fatal shot.

Gorgogne did not find Zimmerman’s blood or DNA on the hooded sweatshirt. That probably means he did not have any blood on the underside of his left hand and fingers when he gripped the shirt and sweatshirt or, if he did, he did not transfer it to the sweatshirt.

It also may mean that he did not grip the sweatshirts, although I still believe he did.

Recall that Gorgogne did not detect any of Zimmerman’s blood on Martin’s sweatshirt. Witnesses Mary Cutcher and her friend Selma saw him straddling Martin’s back and leaning forward touching his back and neck with his hands after the shot. Therefore, I do not believe he had any blood on his hands.

No blood is visible on his hands in the photographs taken by police at the station house after the shooting.

That does not mean that blood was not on his hands earlier, however, because the police incredibly permitted Zimmerman to wash up in the washroom at the station house before the photographs were taken. That is inexcusable. It is what it is, however, and we cannot change it.

We do know that Gorgogne identified Zimmerman’s blood on the grip of his Kel Tec 9 semiautomatic handgun. Could that bloodstain have been already present before the incident that resulted in Martin’s death?

For example, DNA preserves indefinitely in a dried bloodstain, so Zimmerman might have deposited his blood via transfer to the grip sometime before the incident with Martin on February 26th. He might not have known it was there. I do not recall seeing any blood on the grip of his gun in the photographs that were recently released. Given PCR’s exquisite sensitivity, not much blood would have to have been present to yield a complete DNA profile.

Now let us take a look at Amy Siewert’s lab report. She is a firearms expert and her report was in the first document dump. She described the locations of the two holes in the sweatshirts and I compared what she wrote to Dr. Bao’s description in the autopsy report regarding the location of the entry wound.

Siewert said the holes in the sweatshirts aligned with each other and were 7 inches below the shoulder/neck seam.

Dr. Bao said the entry wound was 1 inch to the left of the midline and 1/2 inch below the nipple.

I am 1-inch taller and the same weight as Trayvon. I placed a mark on my chest corresponding to the location of the entry wound and then I took one of my white tee-shirts and placed a mark 7 inches below the shoulder/neck seam. I put on the tee-shirt and, using the marl on my chest, I marked the location of the entry wound on the tee-shirt.

I took off the tee-shirt and measured the distance between the two marks.

The two marks are a little over 3 and 1/2 inches apart. The mark representing the hole in the sweatshirts is above and slightly displaced toward the left shoulder.

To perform this comparison with precision, one would need to place the sweatshirts on Trayvon’s body and precisely measure the distance between the holes and the entry wound and determine the angle of their displacement from the vertical.

I could not do that, so I approximated the distance at 3 inches with a displacement toward the left shoulder.

Could my conclusion have been mistaken? I do not think so, but I have to admit that it is certainly possible. Fabrics stretch and there was only so much that I could do to reproduce the state of the State’s evidence.

I hope someone on the prosecution team followed up with Siewert and Dr. Bao to nail down this point as well as the apparent discrepancy between her characterization of the hole as having been caused by the muzzle of the gun in contact with the fabric and his characterization of the shot having been fired from an intermediate range (i.e., 0.5 centimeters to 1 meter).

I note for the record that Dr. Bao described the entry wound as 3/8 inch in diameter with a 2 X 2 area of stippling around the wound.

Stippling is caused by unburned gun powder that enbeds in the wound and its periphery. The farther away the muzzle of the gun, the larger the area of stippling. With handguns there is no stippling apparent when the muzzle of the gun exceeds 1 meter from the entry wound at the time the shot is fired..

Contact wounds characteristically cause the skin to tear. This condition is called starring and it’s caused by the expanding gasses released by the burning gunpowder.

Siewert observed torn fabric that spread out from the holes caused by the shot. She prepared some cutouts using fabric from the two sweatshirts (actually the interior one has been redesignated as a shirt by the DNA analyst) and test fired Zimmerman’s gun using the same ammo from several different distances, including a contact shot. The tearing in the result from the experimental contact shot matched the tearing in the hole in the sweatshirt and that is why she concluded that it was a contact shot.

Dr. Bao did not note any tearing or starring around the entry wound.

D. Vincent di Maio, a respected forensic pathologist and the former Medical Examiner for Bexar County, Texas (San Antonio) reviewed Dr. Bao’s autopsy Report and estimated the muzzle of the gun was 2 to 4 inches from the entry wound when Zimmerman fired the fatal shot.

Dr. Bao characterized the fatal shot as “Directly, front to back.”

That is all the evidence we have.

Consider these questions:

(1) Did Zimmerman grip Martin’s sweatshirt and shirt with his left hand?

(2) If he did not (or even if he did) how did he immobilize Martin so that he could aim and squeeze off the perfect shot to the heart, or was it just a lucky shot?

(3) How and when did Zimmerman sustain the injuries to his nose and the back of his head?

(4) Do you believe the injury to his nose was caused by the recoil of his gun when he fired the fatal shot?

(5) What do you believe explains the presence of Zimmerman’s blood on Martin’s shirt?

(6) What do you believe explains the presence of Zimmerman’s blood on the grip of his gun?

As I said, I hope the prosecution has figured out the significance of the evidence as it is important to the outcome of the case.

I still believe that the agonizing shriek that abruptly ended with the shot and the interrogation and begging that preceded it establish beyond a reasonable doubt that Zimmerman was not in imminent danger of being killed or suffering serious bodily injury when he shot and killed an unarmed Martin “evincing a depraved indifference to human life.”

Zimmerman: DNA Conclusions

September 22, 2012

The DNA results do not support Zimmerman’s claim that Martin assaulted him.

Zimmerman claimed that Martin punched him in the nose stunning and knocking him to the ground. Martin mounted him as he lay flat on his back, and started hitting him repeatedly in the face with his fists. Then he grabbed both sides of Zimmerman’s head and began slamming the back of his head into repeatedly into the cement.

When Zimmerman started screaming for help, Martin attempted to smother him by placing his hands over Zimmerman’s mouth and nose.

If this story were true, one would expect to see injuries on Zimmerman’s face and the back of his head, but there are no injuries, with the exception of a scab on the right side of the bridge of his nose and two little cuts or lacerations to the back of his head. These two superficial cuts bled copiously as scalp wounds tend to do.

The blood flow from those wounds is consistent with Zimmerman’s head in an upright position leaning forward and inconsistent with his claim that he was lying on his back.

One also would expect injuries to Martin’s hands, but there is only one small abrasion on the ring finger of his left hand where a ring normally would be worn. (Martin did not wear a ring)

Martin’s only bleeding wound was from the gunshot to his heart.

Now let’s take a look at the DNA evidence.

Left and Right Lower sleeves and Cuffs of Martin’s Shirt and Sweatshirt

No blood detected on any of them.

Martin’s DNA was detected on all of them. There were no DNA results foreign to Martin, with the exception of the left cuff and lower sleeve of the shirt, but the data was insufficient to include anyone due to its limited nature.

Martin’s Fingernail Cuttings

No DNA results foreign to Martin were found.

Note: The absence of Zimmerman’s DNA on the fingernail cuttings and the absence of injuries to Martin’s hands consistent with the beating Zimmerman described, as well as the absence of blood and Zimmerman’s DNA on the lower sleeves and cuffs of Martin’s shirt and sweatshirt leads me to conclude that Zimmerman’s story about Martin almost beating him to death is a lie.

In fact, other than Zimmerman’s story, I do not see any evidence that Martin hit Zimmerman.

He was certainly injured, but there are other possible causes for those injuries.

Martin’s Shirt (ME-8)

Bloodstain A: matches Zimmerman

Bloodstain B: matches Martin

Stain C no blood and no DNA

Bloodstain D: mixed DNA profile likely containing both Martin and Zimmerman

Bloodstain E: matches Martin

Martin’s Hooded Sweatshirt (ME-12)

Blood matches Martin.

Zimmerman’s DNA not present


The only place where Zimmerman’s blood and DNA are present is Martin’s shirt, which he was wearing underneath the hooded sweatshirt.

Bloodstain A is all Zimmerman

Bloodstain D is a mixed DNA sample containing Martin and Zimmerman’s DNA.

Pending review of color photographs of the two bloodstains on Martin’s shirt containing Zimmerman’s blood, I am inclined to believe that they are the result of any of the following:

(1) dripped blood from Zimmerman’s wounds as he leaned forward above Martin’s body either before or after the shot, or

(2) transferred blood from Zimmerman’s hands as he handled Martin’s body.

Zimmerman: To Sequester or Not to Sequester, That is the Question

September 21, 2012

I oppose juror sequestration and recommend that it be abolished. I believe many judges, prosecutors and defense attorneys agree. I write to support my recommendation and to solicit your views regarding this important matter.

I practiced law in Seattle for 30 years. I do not recall any trial during that time where jurors were sequestered. I am not saying it did not happen, but if it did, I do not recall it.

Judges, prosecutors, defense lawyers and jurors hate the idea. So do the people who have to police the jurors by screening all information that comes to them and redacting anything about the case.

The jurors might as well be locked up in jail and they never would have agreed to serve as jurors, if they knew what it was going to be like.

I have discussed this issue with other criminal defense lawyers from other parts of the country, whom I got to know through my involvement in the National Association of Criminal Defense Lawyers, and we all agreed that sequestration is a bad idea. We knew the jurors would hate it and we feared they would take out their frustrations on our clients.

As I devoted more of my time and efforts during my career to learning forensics and representing people potentially facing the death penalty, I found myself in more complex and lengthy trials.

For example, one death penalty trial went on for 9 months. The shortest trial lasted 3 months. The strain on everyone involved in the process, including the jurors, was incalculable.

If they had been denied access to the comforts of home and hearth during that time, I would not have been surprised if some of them had cracked and assaulted their keepers or just fled the madness and disappeared.

I knew one thing for certain. I would never have tolerated being sequestered, if I were a juror. For that reason alone, I would never ask for a jury to be sequestered and would oppose a prosecution request to sequester.

At some point, we have to get smart, acknowledge human nature, and stop trying to hold back the sea. Jurors are going to watch TV, read newspapers, listen to the radio, surf the internet and discuss the case with their domestic partners and close friends.

Rather than ban those activities and set them up to commit perjury by insisting they swear not to do those things, we should educate and warn them regarding the potential dangers of outside influences and remind them daily of their solemn duty and responsibility to base their decision on the evidence introduced in court.

Jurors should be encouraged to note and inform the judge and the lawyers when outside information about the case reaches them. Segregating that information into a category labeled with the word “Ignore,” reinforced by a jury instruction ,probably is the best way to limit, if not eliminate, the problem posed by outside information influencing the jury to reach an improper verdict.

Treating jurors with honesty and respect, instead of suspicion and distrust, as though they were naughty children requiring continuous adult supervision, is the mature, honorable and decent way to go.

Disregarding inadmissible evidence is a task judges are required to perform on a regular basis. Some take that obligation seriously and some do not. Some are better at it than others.

Some judges are so corrupt that they will invent evidence to support conclusions they intend to reach, despite the evidence.

The jury system was created to address this last category of judges by preventing the Crown from depriving people of their property, liberty and lives without just cause.

Since the jury system was created, judges and lawyers have attempted to control what jurors do and how they do it. The clearest example that comes to mind is the effort to outlaw jury nullification.

Jury nullification occurs when a jury decides to disregard the law as set forth in the instructions and return a verdict of “Guilty” or “Not Guilty,” according to what it decides to be the “right” decision, regardless of the law.

Here are two examples of jury nullification that illustrate opposite extremes.

In the first case, a jury acquits a young man of failing to register for the draft during an unpopular war despite evidence that he refused to register because he was opposed to the war.

In the second case, an all White jury convicts a Black defendant of the rape-murder of a White woman and sentences him to death, despite DNA evidence that exculpates him.

The fear of jury nullification is so strong that any lawyer who mentions it is likely to be summarily held in contempt, ordered to jail and a mistrial granted.

A reasonable possibility exists that a jury will be sequestered in the Zimmerman case, assuming Judge Nelson denies Zimmerman’s motion for immunity from civil and criminal liability and the case proceeds to a jury trial. Due to Florida’s Sunshine Law, we are familiar with most of the evidence that will be admitted at the trial, as well as evidence that will be excluded.

Assume that you have been selected as a juror in the Zimmerman case.

My questions:

(1) Having been exposed to inadmissible evidence, such as W9’s accusation that Zimmerman sexually abused her multiple times during a ten-year period that began when she was 6-years-old and he was 8-years-old, do you believe you could ignore her accusation and base your individual verdict only on the evidence admitted in court?

(2) Assuming your answer is “Yes,” why do you think you could ignore it?

Now let us expand the scope of the two questions to include all of the evidence and information you know and your opinion of Zimmerman’s guilt or innocence. Have your answers changed?

(3) Do you believe it is possible for you to presume Zimmerman innocent, given what you know?


(4) Knowing what you know, would you find him “Not Guilty,” if the prosecution fails to meet its burden of proof because it did not introduce evidence that you recall?

Aye, there’s the rub.

Zimmerman: Motion for a Change of Venue

September 20, 2012

The Sixth Amendment, which is applicable to state criminal proceedings through the Due Process Clause of the Fourteenth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Impartial Jury Clause is at issue in the Zimmerman case because of:

(1) The tsunami of outrage nationwide in reaction to State’s Attorney for Seminole County, Norm Wolfinger’s decision not to charge Zimmerman with a crime for killing Trayvon Martin;

(2) Governor Scott’s decision to replace Wolfinger with State’s Attorney Angela Corey;

(3) Wolfinger’s decision to retire;

(4) Angela Corey’s decision to charge Zimmerman with second degree murder;

(5) The firing of Chief Bill Lee of the Sanford Police Department for his handling of the investigation into Trayvon Martin’s death;

(6) The release of much of the evidence in the case to the public before trial; and

(7) the conduct and various miscues of Zimmerman, Mark O’Mara, and Zimmerman’s friend Mark Osterman, who have attempted to try the case in the media to generate sympathy and financial support for Zimmerman’s defense effort.

What we now have is an extraordinary mess in which it seems that everyone in the country, never mind Seminole County, has a strong opinion about Zimmerman’s guilt or innocence.

The question is whether it is possible for Zimmerman to get a fair trial by an impartial jury in Seminole County or anywhere else in Florida and, if not, whether and to what extent should Zimmerman’s conduct by publicizing his case, including going on the Sean Hannity Show and pouring gasoline on the fire by proclaiming that he had no regrets for killing the unarmed teen because it all happened according to “God’s Plan,” should play a role in deciding what should be done about the mess.

Before anyone attempts to answer my two questions, please consider something that I know to be true from personal experience. I have represented clients in high visibility cases where it seemed impossible that any sentient being in the state did not have a strong opinion about the guilt or innocence of my client and in each case we were able to select a jury of twelve people, plus alternates, who claimed to know very little about the case and not to have formed an opinion about the guilt or innocence of my client. That happened in the Casey Anthony case and I predict it will happen in the Zimmerman case too.

The point is there are many people who have no interest in the crime news and never read, watch or listen to it.

There are two potential solutions.

One is for the Court to grant a defense motion for a change of venue, which will likely be forthcoming soon, and follow the procedure used in the Anthony case. Pick the jury in an adjoining county, sequester them for the trial, and try the case in the Seminole County Circuit Court.

The second solution is to wait and see what happens during jury selection. Have all the prospective jurors fill out a questionnaire that asks them to write down what they’ve read, heard or seen about the case and state whether they have formed an opinion about Zimmerman’s guilt or innocence. Then you bring them in and question them individually until you are able to seat a six-person jury, plus alternates.

I favor a mixture of both options.

The Court and both parties have a common interest in doing what they can to assure a fair trial by an impartial jury. They should join together to hire a polling firm and have them design a questionnaire or series of questionnaires to poll citizens in Seminole and Orange County as well the larger urban communities in Miami, Tampa and Jacksonville. Have them tabulate the results and chart any changes over time.

The results of the poll should provide a statistically valid estimate of the probability that Zimmerman can receive a fair trial from an impartial jury in any of those communities.

Without a poll, the Court would not have a sufficient basis to make a decision.

We know from experience that jurors hate being sequestered and their rising anger can affect how they decide the case in unpredictable ways. It’s also extremely expensive. Therefore, sequestration should be avoided, if at all possible.

If the Court is going to allow the jurors to go home, home cannot be somewhere on the far side of the Moon. The poll should help select the proper venue and the best solution might involve trying the case in a distant venue rather than transporting and sequestering the jury in Sanford.

For all of these reasons, I recommend using a poll to select the venue, non-sequestration of the jury, and the use of questionnaires with individual voir dire to select the jury.

DNA Testing and the Results from Zimmerman’s Gun

September 19, 2012

I. Introduction

I was going to publish an article on a Motion for a Change of Venue today, but decided to postpone it and do an article on DNA instead.

II. Forensic DNA Testing

All crime labs use the same PCR test that the Florida lab used. The test was developed by the FBI Crime Laboratory. It uses the PCR process developed by Dr. Kary Mullis, a biochemist who won the 1993 Nobel Prize in Chemistry for inventing it. He is a true genius and wild man and his story is worth checking out.

Basically, PCR imitates the cell division/ replication process to create millions of copies of targeted sequences of DNA.

The FBI selected 13 polymorphic (i.e., variable) human genes that are independent of each other.

Let’s say, for example, that each of the thirteen genes might have 10 known variations or genotypes in the human population.

Databases, each consisting of Caucasians, Blacks, Hispanics, Native Americans, and Asians, have been genetically studied to identify the frequency of each known genotype within each group.

Let’s say the distribution of the 10 genotypes with the first gene, which I will call Nikko, because that is my parrot’s name, is as follows:

Gene = Nikko

Database: Human Population

Genotype A: 1%
Genotype B: 5%
Genotype C: 10%
Genotype D: 15%
Genotype E: 19%
Genotype F: 23%
Genotype G: 17%
Genotype H: 6%
Genotype I: 3%
Genotype J: 1%

Total: 100%

The distribution of the 10 Nikko genotypes in each of the racial groups will differ somewhat from their distribution in the human population and from their distribution in each of the other racial groups.

This part is key, so pay attention. The 10 genotypes of each of the 13 genes are known to occur independently of each other. For example, your Nikko genotype (let’s say Type H) does not make it any more or less likely that you will have a particular genotype at any of the other 12 genes.

To illustrate this point, let’s consider the genes responsible for eye and hair color. We know they are not independent because those genetic traits are obviously linked. Blonde hair and blue eyes are an example and you can probably think of others.

Forensic DNA testing selects genes that are known to be inherited independently from each other.

Why is that important?

Because you can use the Product Rule to calculate the odds that a person will have a particular set of genotypes or genetic profile for the 13 genes.

For example, as before let’s say your Nikko genotype is Type H, which you share with 6% of the human population.

Let’s call the next genetic site Brutus. Let’s say your Brutus genotype is Type D, which you share with 17% of the human population.

What percentage of the population would be expected match your genetic identity at Nikko and Brutus?

The answer is 0.0102 (0.17 X 0.06 = 0.0102) or about 1% of the human population.

To calculate the distribution or frequenct of your genotype in your racial category, you would use the Product Rule to multiply the percentages for the distribution or frequency of your genotype for the Nikko and Brutus genes in your racial category or database.

You might find, for example, that the frequency of those two genotypes occurring together might vary by up to as much as 10% from one racial category to another, but usually they do not vary by that much.

III. DNA Test Results in the Zimmerman Case

A. The grip on Zimmerman’s gun

Let’s take the swab collected from the grip.

First, the analyst tested for the presence of blood by swabbing a discrete portion of the grip and the test reacted positively, indicating the presence of blood.

Note that no blood was detected on the other locations (trigger, slide and holster).

BTW, red blood cells do not have a nucleus. White blood cells do and DNA tests are designed to extract and purify the DNA in the nucleus of white blood cells.

The absence of blood does not mean that no DNA will be present as that can happen if saliva or living skin cells are present. The cells in saliva and skin cells have a nucleus.

The analyst ran the PCR test on the blood that was present on the grip and obtained a complete DNA profile of the major contributor (i.e., a result identifying all 13 genotypes of the questioned sample, plus the sexual identifier).

This profile matched the known profile of George Zimmerman that was obtained from a buccal swab.

Using the Product Rule that I explained, the frequency of this profile is:

1 in 11 quadrillion Caucasians:
1 in 1.5 quintillion African Americans; and
! in 57 quadrillion Southeast Hispanics

Obviously, those numbers exceed the known population of the world. They were generated by multiplying the 13 genotype frequencies of his complete profile in each of the three listed databases.

The bottom line is George Zimmerman is the major contributor of the blood on the grip of his semiautomatic.

The analyst further determined that there was at least one other human contributor to the DNA sample obtained from the grip, but excluded Trayvon Martin as a possible source of that DNA.

How is that possible?

B. Alleles and Genotypes

All genotypes are composed of two alleles. One allele is inherited from the father and the other is inherited from the mother.

Let’s assume that the mother’s alleles are 1 and 2 while the father’s alleles are 3 and 4. What are the possible allele combinations their children might have?

1, 3
1, 4
2, 3
2, 4

What if they shared an allele? For example, the mother is 1, 2 and the father is 2, 3? You still have four possibilities. The possibilities are:

1, 2
2, 2
1, 3
2, 3

Why are alleles important to forensic DNA testing?

The answer is they are useful in determining if a person can be excluded from a mixed sample.

C. Exclusion of Martin as a minor contributor of sample obtained from the grip

If the minor sample contained alleles that are not present in Martin’s known DNA sample obtained at autopsy, and his DNA sample contains alleles that are not present in the sample from the grip, he can be conclusively excluded as a contributor to the mixed sample.

D. Swab collected from the trigger

These results were not interpretable “due to the limited nature of the results.” This means not enough DNA was present to get an interpretable result.

E. Swab collected from the slide

Due to the limited DNA results obtained, this data is insufficient for conclusion purposes.

Results are consistent with the presence of at least one male individual. No determination can be made regarding the possible contribution of Zimmerman or Martin because not enough DNA is present.

This means they found some alleles common to both of them, but not enough to draw any conclusions.

F. Swab from the holster

The analyst found a mixed profile of at least three individuals. The major profile matches Zimmerman.

No profile for the minor contributor could be developed.

No determination could be made regarding whether Martin could have contributed to the mixed sample.

This means a few alleles matching alleles in his sample were present but not enough to draw any conclusions.

In other words those matches were not uncommon and could have been due to chance.

IV. Conclusion

Martin’s blood is not on the gun and his DNA cannot be confirmed as present on any of the four areas tested.

Zimmerman: Jury Selection and Batson v. Kentucky

September 18, 2012

I have already described the process of jury selection in a previous article, so I will not repeat it here. Nevertheless, I cannot leave that subject behind without reemphasizing Batson v. Kentucky, 476 U.S. 79 (1986).

In Batson, the SCOTUS announced a new rule prohibiting the prosecution from using its peremptory challenges to selectively exclude African Americans from serving on juries deciding cases with African American defendants. Until the SCOTUS decided Batson, prosecutors were not required to provide a reason for exercising any peremptory challenge. That finally changed with Batson when the Court held that the practice violated the Equal Protection Clause of the Fourteenth Amendment.

The SCOTUS has since extended the Batson Rule to prohibit the use of peremptory challenges by either side to selectively exclude potential jurors on the basis of gender amd religious affiliation.

Under Batson and its progeny, prosecutors and defense counsel, if challenged, will be required to explain why their apparent selective exclusion of a suspect class of jurors is not race, gender, or religious based.

They better have a good reason as Texas prosecutors found out in Miller-El v. Cockrell, 537 U.S. 322 (2003). In that case the prosecutors claimed reasons other than race led them to exclude African American jurors. The SCOTUS rejected that claim with an analysis of the entire jury selection process establishing that the prosecutors selectively used those excuses to only exclude African American jurors.

I encourage each of you to read this landmark case and Miller-El, not only for their importance in their own right but to better understand the jury selection process that will take place in the Zimmerman case.

I expect the prosecution will challenge every peremptory challenge that the defense uses to disqualify African Americans and women. I expect the defense will challenge every prosecution peremptory challenge of Christian fundamentalists who might believe Zimmerman’s idea of God’s Plan.

[If the links do not work, go to Google Scholar and enter the names of the cases]

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