Zimmerman Frye Hearing Resumed: Rebuttal

June 20, 2013

Thursday, June 20, 2013

Good afternoon:

We have a jury, an all female jury.

B-29
B-76
B-37
B-51
E-6
E-40

The four alternates:

E-54
B-72
E-13
E-28

Two males and two females.

Here’s a link to fauxmccoy’s chart.

Next up is the prosecution’s rebuttal case in the Frye hearing.

They will be presenting one witness, Tom Owen.

Here’s the link to the livestream coverage.

http://www.nbcnews.com/video/nbcnews.com/52117880/


Zimmerman: Day 8 Liveblogging Jury Selection Completed

June 19, 2013

Wednesday, June 19, 2013

Good afternoon:

We have completed liveblogging the 8th day of jury selection.

Bernie de la Rionda spent the day teaching and indoctrinating the panel of 40 prospective jurors (PJs) with the legal foundation of the case that he will present to them in opening statement. Judging by their reaction, he succeeded in building rapport and trust.

The defense has a big mountain to climb tomorrow.

Bernie used a mixture of one-at-a-time voir dire as to the entire group and then switched to what we used to call the Donahue Method after the former TV host, Phil Donahue.

We would never have been allowed to conduct a classroom style multiple-hour education of the panel regarding legal principles as Bernie did.

Judges instruct on the law, not lawyers.

Voir dire means to question.

During his initial questioning of the panel, he asked each individual juror how long they had lived in Seminole County and Florida, their marital status and children, and what they liked to do with their spare time.

Then he used the Donahue Method to question the panel of 40 as a group on the following subjects:

1. Knowledge of the defendant, lawyers, court personnel and witnesses to be called;

2. Familiarity with TV programs about forensics, cops and the law;

3. Difference between direct and circumstantial evidence;

4. Whether anyone was arrested and prosecuted for a crime;

5. Victims of crime, particularly violent crime;

6. Experience with Neighborhood Watch programs;

7. Whether anyone believes they have the right to take the law into their own hands;

8. Whether anyone believes any person by reason of wealth, education, employment, gender, race, ethnicity, religion, age, language or dress should be treated differently under the law;

9. Whether anyone has been a witness before or served on a jury;

10. Member of law enforcement or knows someone who is;

11. Whether anyone has medical experience or knowledge;

12. Owns a gun, has a license to carry concealed, NRA membership;

13. Whether people who own guns have a responsibility to learn how to use them;

14. Whether anyone is a fitness freak or trained fighter or been in a fight;

15. Whether anyone has special knowledge or training in cell phones, phonetics, linguistics, or DNA testing; and

16. Whether anyone would not be able to look at gruesome photographs for their evidentiary value.

No one was excused today although I believe 2 PJs should be excluded for financial and familial hardship, especially since the trial is expected to last 2-4 weeks and the jury will be sequestered. Both are Hispanic.

B-29 is a married mother with 8 children at home. The oldest is 22. She works as a CNA. She is juror #2 in the box and would be replaced by B-51, a retired white female from Oviedo with a dog and 20-year-old cat. Knows a good deal about the case, but said “I’m not rigid in my thinking.” She moved to Florida from Atlanta and was the Director of a call center for 1,200 employees.

P-67 is an auto mechanic whose job might not be there after the trial. He is 22nd on the list of 40.

The defense will voir dire tomorrow starting at 9 am EDT.

If the defense has not completed questioning the PJs by 2 pm, Judge Nelson will excuse them for the day in order to resume and complete at least the evidentiary portion of the Frye hearing. The prosecution will be presenting one rebuttal witness, Tom Owen.

I doubt she will be ready to issue her decision at the conclusion of the hearing, so look for it early next week, probably Monday.

I will see you all tomorrow morning at 9 am EDT.

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Zimmerman: Day 6 of Jury Selection Completed

June 17, 2013

Monday, June 17, 2013

Good evening:

Judge Nelson just recessed court for the day at 8:30 pm EDT after a very long day in court.

Day 6 of jury selection concluded at 4 pm. Counsel questioned 8 prospective jurors (PJs), 4 were excused for cause.

The 4 who were passed for cause on the hardship and pretrial publicity issues are H7, H18, H29 and H35.

They join the pool of 29 PJs (Total 33).

Here is the updated list of 33 PJs for your scorecard:

1. B-12 F 40s-50s White
2. B-29 F 40s Black
3. B-76 F 50s-60s White
4. B-7 M 40s-50s White
5. B-35 M 40s-50s Black
6. B-37 F 50s White
7. B-51 F 60s-70s White
8. B-55 F 20s E. Indian
9. B-86 F 50s White
10.E-6 F 20s-30s White
11.E-40 F 50s-60s White
12.E-54 M 60s-70s White
13.E-73 F 60s White
14.M-75 F 30s Black
15.B-61 F 20s White
16.B-72 M 20s White/Bi-racial
17.E-22 F 50-60 Black
18.E-13 F 20s White
19.E-28 F 50s-60s White
20.K-80 F 40s-50s White
21.K-95 F 40s-50s White
22.P-67 M 40s-50 Hispanic
23.G-14 F 40s-50s White
24.G-29 F 30s Black
25.G-47 M 20s White
26.G-63 M 20s Mixed
27.G-66 F 50s White
28.G-81 M 30s-40s Black
29.H-6 M 30s-40s White
30.H-7 M
31.H18 M
32.H29 M
33.H35 F

Judge Nelson wants to get a pool of 40 PJs passed for cause on hardship and pretrial publicity before she switches to group voir dire.

She will gather that group together seating the PJs in the jury box, and subsequently the benches, in the order in which they were called and likely instruct them to raise their hands indicating an affirmative answer as she asks a series of questions, pausing to record each PJ’s affirmative answer to each question.

For example, she might ask for a show of hands by each PJ who has been a victim of a crime and write down each PJs number who raises their hand.

After she completes her list of questions, the lawyers, starting with Bernie de la Rionda, will question the first PJ on the list (B12) regarding each question she answered affirmatively. After both lawyers have finished with B12, they will pass or challenge her for cause. If she is excused, she will be replaced in the box by PJ B51 (she is 7th in the order).

This process will be repeated with B51 until she is passed or excused for cause. If she is excused, her seat will be taken by B55. If she is passed, the lawyers will question B29, the PJ in the second seat in the box.

This procedure likely will be followed until 30 PJs have been passed for cause.

Then the lawyers will exercise their peremptory challenges, which is usually done secretly with the lawyers passing back and forth a sheet of paper alternately listing a PJ number until one or both sides exhaust their allotment of peremptory challenges.

If one side accepts the jury of 6 before exhausting their peremptories, they retain the right to use a peremptory challenge to excuse the PJ who replaces a member of the jury struck by their opponent after they accepted the jury.

In other news today, the defense rested its case in the Frye hearing after calling Dr. James L. Wayman.

Dr. Wayman testified that science does not have the capacity yet to identify who screamed in the background of the 911 call or identify anything said.

In a surprising development, Don West may have provided him with a document that does not describe the test that Tom Owen conducted thereby rendering Dr. Wayman’s criticism of Owen’s results irrelevant.

The State is going to call Owen to the stand in rebuttal on Wednesday at 4 pm after the court concludes jury selection for the day.

Jury selection resumes tomorrow morning at 9 am EDT.

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Expert opinions about the death shriek are admissible at trial

June 9, 2013

Saturday, June 9, 2013

Good afternoon:

The defense presented the testimony of two expert witnesses yesterday, Dr. Peter French from the UK and George Doddington from the United States, who agreed with Dr. Nakasone of the FBI Crime Lab that there is insufficient information in the background of the recorded 911 calls with which to form an opinion regarding whether Trayvon Martin or George Zimmerman uttered the terrified death shriek.

The three experts also agreed that there is insufficient information to support an opinion regarding whether there are any identifiable words or phrases in the background of those calls.

Note that the three experts have described the prosecution and defense effort to rely on expert witnesses to identify the source of the terrified death shriek, as well as any words or phrases that either of them might have used, as an absence-of-evidence problem. That is, they agreed that the methodologies used by the prosecution experts are generally accepted by audiologists and neither novel nor new.

This conclusion is all that is required to satisfy the Frye rule, since the rule is a counting-heads test that establishes a threshold requirement or legal foundation to introduce an expert opinion that is based on a novel scientific theory or new methodology. The expert’s conclusion is irrelevant.

In other words, there was no need for a Frye hearing since the prosecution experts based their opinions on long accepted methodologies. Therefore, their opinions are admissible.

How much weight should be accorded to those opinions is a separate issue that only the jury can decide.

Defense counsel have focused their effort during the Frye hearing on attacking the validity of the opinions expressed by the prosecution experts. They are going to have to repeat that effort during the trial.

I predicted long ago that expert opinion regarding who uttered the terrified death shriek would not play a significant role in the outcome of the trial.

If I were arguing the State’s case to the jury, I would emphasize the strength of the circumstantial evidence that proves Trayvon Martin uttered the shriek. I would briefly add that the conclusions reached by the prosecution experts independently confirm the circumstantial evidence.

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Prosecution experts exclude the defendant as the source of the death shriek

June 7, 2013

Friday, June 7, 2013

Good evening:

The Frye hearing is developing much as I expected it would, although I am surprised by how far afield the testimony has wandered.

The scope of the hearing should be confined to determining whether the methodologies used by the experts are generally accepted by forensic audiologists. Dr. Nakasone, Tom Owen and Dr. Reich agreed that they are and that resolves the Frye inquiry.

The defense presented evidence questioning the accuracy of the results due to the very short (3-second recording) length of time in which the death shriek is not competing with other sounds. However, that argument and the rest of the defense arguments affect the weight that should be given to the results rather than the admissibility of the evidence.

Therefore, we basically watched a full dress rehearsal of the defense case challenging the accuracy of the opinions expressed by Tom Owen and Dr. Reich.

They agreed that the defendant did not utter the death shriek and indeed the circumstantial evidence independently confirms their opinions.

I confess that I had a difficult time hearing what the experts were saying because the audio was fuzzy and cutting in and out.

West’s monotone and stubborn nitpicking instead of focusing on the general acceptance issue, which is the purpose of the Frye hearing was quite annoying.

I think the defense committed a potentially serious tactical error by asking for a Frye hearing this close to trial because they have little or no chance to win and the hearing creates an opportunity for the State to remind everyone that their experts have excluded the defendant as the source of the death shriek.


If I were the judge l would admit expert opinion evidence regarding who uttered the death shriek

June 6, 2013

It’s important to remember that every scientific principle, law, or methodology that is generally accepted in the scientific community today was once a novel theory or new methodology.

The process by which these novel theories and new methodologies become generally accepted in the scientific community can take many years.

It can be extremely frustrating to have to wait for general acceptance to develop in the scientific community when a pressing need exists to use a novel theory or methodology to solve crimes as was the case with applying DNA testing to solve otherwise unsolvable crimes or to hold a pharmaceutical company liable for birth defects that mighth ave been caused by anti-nausea medication prescribed by doctors for pregnant women.

The so-called DNA Wars of which I was a part in the late 80s and 90s resisting the admissibility of DNA test results that implicated my clients in death peenalty cases and the pressure on the courts to provide a legal remedy for parents of children born with birth defects possibly because the mothers ingested prescription Bendectin at the recommendation of their physicians to overcome morning sickness placed a mighty stress on our legal system.

The National Association of Prosecuting Attorneys pressured the courts to admit DNA testing and they were eventually successful in overcoming criminal defense lawyers like me who fought hammer and tong to prevent the evidence from bein admitted.

Plaintiff’s personal injury lawyers fought hard to persuade the courts to permit them to show a link between not only Bendectin and birth defects, but also between certain lung cancers and exposure to radioactiviy, coal dust, asbestos or smoking.

The SCOTUS decided the Daubert case in the midst of this war being fought in the courts to reject or at least loosen the strictures of the Frye Rule to allow litigants a shot at convincing juries to rule their way.

For those who cling to the Frye Rule believing the scientific tradition should be respected and followed before a litigant should be permitted to introduce into evidence the results of a scientific test based on a novel scientific principle or new methodology, I think they need to reexamine their view in a manner that recognizes that most trials consist of a lot of evidence from different sources that often independently confirm a result obtained using an experimental theory or methodology.

In addition, one party or the other has to satisfy a burden of proof and each side can call its own experts to challenge or support the results obtained with the new theory or methodology.

I have confidence in the ability of jurors to evaluate evidence obtained as the result of new scientific theories and methodologies in light of other evidence in the case and to fairly and impartially determine guilt or innocence according to which party has the burden of proof in any case, whether civil or criminal.

Of course this requires skilled lawyerswho understand science and can explain it to lay people. Unfortunately, we have a shortage of those lawyers, but the times are changing.

Daubert recognizes that, although a courtroom is not a laboratory, it is an excellent crucible for determining the truth and judges, lawyers and jurors are capable of making correct decisions and delivering justice in a way that no laboratory can accomplish.

The death shriek in the Zimmerman case is an excellent example of a situation where other evidence in the case confirms the hypothesis that Trayvon Martin uttered the death shriek.

Briefly, the evidence will show that Trayvon was an unarmed 5’11,” 158-pound 17-year-old male walking home in the rain minding his own business after purchasing Skittles and an iced tea at a 7/11. He spent most of his time during his walk home talking to his girlfriend on his cellphone informing her about a creepy man who followed him slowly at a distance in his vehicle in a menacing manner without identifying himself or attempting to engage him in a conversation. Trayvon attempted to elude the creepy man by running away from the street and ducking into a grassy area corresponding to the backyards of two rows of town houses,That area was not visible from the street and once there he told his girlfriend that he thought he had successfully eluded him.

The evidence will also show that the defendant was a 5’8,” 207 pound 28-year-old Neighborhood Watch Captain, professionally trained fighter and former bouncer, who was armed with a fully loaded 9 mm semiautomatic handgun that he carried in a holster concealed from view inside the right rear waistband of his pants.

The evidence will show that he got out of his vehicle after Trayvon ran away, ran after him in hot pursuit, and continued running after him despite being warned not to do so and agreeing not to do so by the NEN dispatcher. Then, instead of agreeing to meet the officer dispatched to the scene at a set location such a his parked vehicle, the RTL front gate, Clubhouse, or the rear entrance to RTL though which “these assholes always get away,” he instructed the dispatcher to tell the officer to ring him up on his cell phone when he arrived at the RTL so that he could tell him where he was.

Finally, the evidence will show that Trayvon’s girlfriend heard Trayvon say to someone, “Why are you following me for?” and then she heard an older male voice challenge Trayvon stating, “What are you doing here?”

Then she heard a sound like two bodies coming together and Trayvon yelling, “Get off me. Get off me.”

Then the phone went dead.

Less than one minute later, the defendant shot Trayvon in the heart, killing him.

I contend that nothwithstanding Dr. Nakasone’s legitimate concerns about the capability of audio technology today to positively identify the source of the death shriek from an isolated 3 second recording of a 911 call, a jury can reach the right conclusion by considering Dr. Nakasone’s opinion together with the opinions of other experts, and most importantly, the other evidence in the case, and the possibility that only Trayvon Martin or the man with the gun could have made those screams.

This, by the way will be the State’s argument, given the questions that Mr. Mantei asked Dr. Nakasone.

I hope this clarifies your understanding of the issues that relate to the admissibility of expert opinion evidence regarding the identity of the person who uttered the death shriek.

In my experience, judges have almost always allowed the expert witness to testify and express an opinion in a situation like this. They rule that objections by counsel go to the weight that the jury should give to any expert’s opinion rather than to the admissibility of the evidence itself.

I believe Judge Nelson will reach the same conclusion.

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Watch and Comment: Zimmerman Frye Hearing Livestream

June 6, 2013

Thursday, June 6, 2013

Good morning:

Judge Nelson set aside today and tomorrow for a Frye hearing regarding the admissibility of expert testimony about the death shriek and a hearing on the defense motion for sanctions and a judicial inquiry into alleged discovery violations by the State.

Not sure which order she plans to hear these motions, but I am sure we will find that out when the hearing starts in about 25 minutes @ 9 am EDT.

Here is a link to the livestream:

http://wildabouttrial.com/george-zimmerman-live-stream.html

Comment below.

Due to inclement weather, Crane and I have decided not to take our computers with us on our trip to TN for a doctor’s appointment. We will be with you for the first 1.5 hours and catch up with you later after we return.

Peace


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