I have changed my mind and now support Judge Nelson’s decision

Saturday, June 22, 2013

Good afternoon:

I was in the waiting room at my doctor’s office down in Tennessee browsing through a dictionary looking for new words with which to torture y’all when CNN announced that Judge Nelson had issued an order excluding the State’s audio experts (Tom Owen and Dr. Alan Reich) from testifying at the trial. For those of you who may not be as familiar with the case as we are, both experts would have testified that George Zimmerman did not utter that haunting shriek. Dr. Reich also would have testified that Trayvon Martin likely uttered the shriek.

The anchor person said Judge Nelson determined that there is an absence of agreement in the scientific community that the methodologies used by Mr. Owen and Dr. Reich were capable of identifying the source of the terrified death shriek due to the current inability in the scientific community to match a voice exemplar with a shout, the poor quality of the 911 recording, and the short length of time in which there are no competing sounds on the recording and only the shriek can be heard (approximately 3 seconds).

Although I predicted Judge Nelson would deny the defense motion, I cannot say that I am surprised or dismayed by her decision. In fact, and I may surprise some of you with this statement, I am going to compliment Judge Nelson for her decision because it is the right decision at the right time in our nation’s courts and I believe it took a lot of courage for her to make it, especially in a high visibility case like this one in which the whole world is watching.

I have previously written about the deplorable state of forensic science in our nation and the need for standards, regulatory oversight, and mandatory blind proficiency testing of lab personnel modeled after the Clinical Laboratory Improvement Act (CLIA). There is no question in my mind that Dr. Nakasone and Dr. Weyman are on the right track attempting to establish a national set of standards and accepted methodologies for use in forensic voice identification. Judge Nelson did the right thing by endorsing their efforts and her decision was courageous because a lot of forensic scientists and the prosecutors and defense lawyers who employ them will criticize her.

My support for the admissibility of the results obtained by Mr. Owen and Dr. Reich is based on the unique set of circumstances of this case in which the shriek could only have been uttered by one of two known individuals. This situation only requires eliminating one of the two individuals. Since all of the experts who testified agreed that the methodologies used by the State’s experts have been used for many years and continue to be used today; it was easier to exclude than to declare a match; the defense was unable to find an expert willing to testify that George Zimmerman uttered the shriek; and the circumstantial evidence proves that Trayvon Martin uttered the shriek; I concluded that the State’s experts should have been permitted to testify. I still believe that would have been an appropriate conclusion to reach applying the Frye rule.

I am very pleased and proud of your reaction to the news. I anticipated dismay, some panic, and cynical complaints that Judge Nelson is corrupt and the outcome is rigged. I anticipated this reaction because I confess that it was my first reaction. A 2-hour motorcycle ride home on a beautiful afternoon driving on a lesser-traveled 2-lane highway curving through forests and corn fields with the Crane-Station sitting behind me was the perfect antidote. I fully engaged in driving my motorcycle, forgot my disappointment, and realized the prosecution is in a much better position because of her ruling.

When I arrived home and checked the blog I saw that y’all were taking it in stride without any help from me. Y’all know that the prosecution does not need the expert testimony to convince the jury that Trayvon Martin uttered the shriek and I think y’all also realize that not presenting the expert testimony avoids the inevitable distraction and confusion that a battle of the experts might cause. Indeed, in a case like this with only two possible individuals who could have uttered the shriek, there is virtually no chance that any jury would conclude that the shooter uttered that shriek when the evidence will show that he was the person who was armed, he was the person who got out of his vehicle and ran after an unarmed Trayvon when Trayvvon attempted to get away from him, he was the person who admitted to establishing control over Trayvon with a wristlock before pulling his gun and shooting Trayvon, and the shriek ends with the gunshot. Just as we do not need a weatherman to tell us which way the wind blows, we also do not need experts to tell us who uttered that shriek. Neither will the jury.

Therefore, Judge Nelson did the prosecution a huge favor by excluding the experts. In essence, she applied the KISS rule and is forcing the prosecution to do the same thing. She deserves to be thanked for that, not criticized. Y’all realized that without any assistance from me and that is why I am so proud of you and so delighted to see how much you know about the case and how sophisticated you have become in understanding the evidence and the rules governing the use of expert witnesses.

Anyone lacking your knowledge of the evidence in this case would have thought the prosecution had lost any chance to convict George Zimmerman, given the near unanimity of so-called legal experts characterizing this ruling and the selection of an all woman jury as devastating disasters for the prosecution.

Before I got involved in this case, I did not believe my low opinion of the national media and their so-called legal experts could possibly get any lower. However, the nonsense they are spewing as informed opinion has significantly lowered the bar. Despite its availability, they are ignoring the evidence that we have so carefully analyzed and discussed. They have accepted Mark O’Mara’s false narrative and joined in demonizing an innocent 17-year-old kid with loving parents and a bright future. I would have considered myself extraordinarily fortunate if Trayvon were my son and I would have been extremely proud of him. Anyone lawyer who has joined in the demonization of Trayvon and his parents by appearing on national television and voicing an expert opinion regarding the case that endorses the false narrative as though it were true, is a fundamentally dishonest human being without empathy or moral compass.

In many ways, Travon’s case functions as a mirror reflecting the prejudices people have about race, black male teenagers, and black people as parents and citizens. With the selection off an all female jury, the case is reflecting the prejudices people have about women as decision-makers.

Before this case, I knew we had a long long way to go before we reach a place where we no longer disrespect people by the color of their skin and their gender.

Trayvon’s case has taught me that our society is far more racist and sexist than I imagined. His case is an opportunity to set the record right and recommit to seeking equality and justice for all of our people as opposed to a privileged few.

Congratulations to all of you from your humble professor.

Fred

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