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.


Zimmerman Case: Who Uttered the Terrified Scream for Help Punctuated by a Gunshot?

July 13, 2012

UPDATE: The defense has filed a Motion to Disqualify Judge Lester. Read it here. H/t to commenter Sharona Baby.

Both sides will be attempting to prove that their person is screaming for help because that is the central issue in the case, Zimmerman and his dad will say it’s him. TM’s parents and his cousin will say it’s TM. I would not be surprised if his girlfriend also identifies him as the person screaming.

Unclear at this point if audio experts can conclusively identify the source.

Two audiologists using different methodologies while working independently of each other claim they have excluded GZ as the source of the scream to a reasonable scientific certainty. They compared a recording of his speaking voice during his conversation with the dispatcher to the background scream on the recording of a neighbor’s 911 call.

An expert at the FBI Crime Lab has issued a report concluding that no opinion can be reached given the poor quality of the 911 recording.

Common sense indicates that the man with the gun would not have been screaming for help up until the precise moment that he pulled the trigger ending TM’s life. The terrified scream also is high pitched indicating a young person in fear for his life, rather than an adult male armed with a gun and, of course, GZ’s injuries were relatively minor and unlikely to have provoked him to scream in terror.

Given GZ’s track record for uttering inconsistent and provably false statements, I doubt that a jury will believe his claim.

Will the jury believe the father, or will it assign little weight to his testimony on the ground that he is trying to save his son from a long penitentiary sentence.

If I were a betting man, I would bet the jury will be more likely to believe the grieving mother and father who seek justice for the tragic loss of their unarmed son.

For these reasons, if I were GZ’s lawyer, I would be extremely concerned about the probable likelihood that the jury would conclude TM was screaming for help and begging for his life when, according to GZ, he “aimed” and shot him in the heart at point blank range.

Does that sound like self-defense or does it sound like an “act imminently dangerous to another and evincing a depraved mind regardless of human life?”

Recall the statutory definitions of “imminently dangerous conduct” and “evinces a depraved mind”:

Imminently dangerous conduct means conduct that creates what a reasonable person would realize as an immediate and extremely high degree of risk of death to another person.

A person evinces a depraved mind when he engages in imminently dangerous conduct with no regard for the life of another person.

Recall

The Florida jury instruction for second degree murder (Fla. Std. Jury Instr. (Crim.) 7.4) provides that an act is imminently dangerous to another and demonstrating a depraved mind if it is one that

1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another

and

2. Is done from ill will, hatred, spite, or an evil intent

and

3. Is of such a nature that the act itself indicates an indifference to human life.

Would you be willing to bet 25 years in prison, which is the minimum mandatory sentence for second degree murder, that a jury would not find that shooting a terrified kid screaming for help constituted “ill will, hatred, spite, or an evil intent?

I did not think so.

So, what can you do, if you are GZ’s lawyer?

How, if at all, can you climb or get around this Everest that appears to block any meaningful chance to win the case?

If I were GZ’s lawyer, I would have him secretly tested in a sound lab to see if his screams “match” the scream in the background of the 911 call to a reasonable scientific certainty.

If it were a match, I would take it to the prosecutors and say “Checkmate, Got Yah!”

If GZ were excluded as the source, which is what I am expecting, I would never mention the test or the results.

The test and the results would not have to be disclosed since they would be protected from disclosure by the attorney-client work product privilege.

I know that might sound crazy to you but it’s true. I have arranged for private testing in many cases, usually involving DNA testing, and that is the way it works.

The only time the defense has to disclose the unfavorable results of expert witness testing is when the tests involve mental health as might be the case when the defense is insanity or diminished capacity. Even then the results do not have to be disclosed unless the defense asserts the defense.

Meanwhile, I would have thought that GZ’s lawyers would have arranged for this test while he was out before his bond was revoked. Maybe they didn’t have the time or the money to do the test. In any event, you can be certain that they would have introduced the result at the recently concluded bail hearing, if they had it and it helped their case.

They clearly did not, but given the relatively short opportunity to do the test between bond hearings, I don’t believe we can reasonably conclude they did the test yet.

The more time that passes without the defense saying anything about a test, the more likely the test was completed with unfavorable or inconclusive results.

Should that have already happened, or if it happens, we can be reasonably certain that the defense will never mention it, ever.

There is another possibility to consider. The prosecution could move for an order requiring GZ to submit to a voice analysis test, or scream analysis test, if you prefer.

There is no Fifth Amendment right to refuse to participate in such a test because the evidence is not considered testimonial. That is, the suspect or defendant is not being forced to testify against himself. For example, it’s permissible in a bank robbery case to have each person in a lineup step forward and utter some phrase the robber said, so that witnesses can compare the sound of their voices to the robber’s voice. It’s also permissible in a forgery case to require a suspect to provide a handwriting exemplar.

The prosecution has not expressed an inclination or desire to go there, perhaps due to the expert at the FBI Crime Lab who opined that the scream is unsuitable for comparison purposes.

That would not stop me or any good defense lawyer from pursuing the matter, especially since we know there are two experts who have relied on the 911 recording.

Where there are two, there will be more, and where there are some, there will be one.

Pick the most respected legitimate expert and if the results are favorable, use them.

The prosecution might object, but if it does, request a pretrial Frye/Daubert hearing with expert testimony on the admissibility of test results obtained using a novel scientific theory or methodology.

Under the present circumstances of this case, if defense counsel fail to go down this road, I think they would have failed to provide effective assistance of counsel, which they are required to do under the Sixth Amendment.


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