Unfinished forensics in Trayvon Martin case

August 2, 2013

Friday, August 2, 2013

Good morning to all of our friends:

I write this morning regarding unfinished forensics with Trayvon’s case and to urge Benjamin Crump to consult with someone who is knowledgeable about forensics before he decides whether to sue George Zimmerman for wrongful death.

Piranha Mom’s comment at 12:09 am inspired me to write this post.

If a civil claim is filed against Zimmerman by Trayvon’s family, Professor Fred and all of us must put together the DEFINITIVE narrative, citing each movement with justification and evidence, and supply it to Trayvon’s family and attorneys.

We know what happened.

We have had the forensic evidence at our fingertips — and we know it all by heart. We were open in our analysis.

We DIDN’T expect we had to provide this to the prosecution.

But they were so full of hubris and the big award Bernie was to receive, and paid little attention to evidence. Bernie even thinks Trayvon took part in the battle, not that he was struggling to get away. If the prosecutor has no faith in the victim, or in the chief witness for the prosecution, what could we expect to get?

The verdict we got.

Won’t make THAT mistake again!

Yes, Piranha Mom is right and here are three glaring examples.

Amy Siewart, the crime lab firearms analyst who examined Trayvon’s sweatshirts, apparently never read the autopsy report or conferred with Dr. Bao regarding whether the bullet holes in the sweatshirts aligned with the entry wound in Trayvon’s chest. Evidently, no one at FDLE or any member of the prosecution team thought about that possibility either.

Yet, that was the first thought that occurred to me when I read that first document dump and LLMPapa was all over that issue too. I wrote about it and he made several videos about it. Both of us discussed the implications.

We even argued with the self-described crime scene expert from Jacksonville, Michael Knox, about the proper conclusions to draw from that evidence.

Massive and inexcusable failure of LE and the prosecutor’s office not to see and comprehend the significance of that evidence.

Massive and inexcusable failure by BDLR not to use the State’s DNA expert, Anthony Gorgone, to clear-up the confusion created by the defense regarding whether rain can wash away DNA and whether packaging Trayvon’s sweatshirt in a plastic biohazard bag would degrade all DNA present, such that it could not be detected with STR/PCR.

Siewart also should have been questioned regarding (1) the unusually strong kickback of a KelTec 9 semiautomatic handgun when fired with one hand, and (2) whether the distance between the two spires on the rear gunsight match the distance between the two pinholes on the tip of Zimmerman’s nose that bled so copiously.

I believe those distances match and Siewart could testify that the gun could have caused the injuries to Zimmerman’s nose, if he fired the fatal shot within a few feet of his face while holding the gun with one hand as Zimmerman described.

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Featuring Malisha identifying who the good guys are

July 29, 2013

Monday, July 29, 2013

Good morning to all of our friends:

Crane has a post up about a pregnancy disaster in jail and I have a post about the Supremacy Clause trumping the Nullification Doctrine, which is quite popular with state’s-rights and 10th Amendment enthusiasts. This is the same crowd racist crowd that has supported and continues to support George Zimmerman. They want to re-fight the civil war to reestablish white supremacy and segregation and legitimize slavery through imprisonment and debt.

I think this group is far more dangerous to our collective peace and security than Muslim terrorists.

I am featuring Malisha’s comment this morning because I think she nailed why so many powerful and influential people decided to demonize a child and rig the outcome for George Zimmerman

I think we actually DO know the truth, but up until this very morning I had not put it into a sentence. The sentence it came to me through was Serino’s sentence when he began to gently — ever so minutely and shyly, like a little girl wondering, with her thumb in her mouth, if she could ask the regal old woman for a cookie — question Fogen’s story. Serino said, mid-sentence, after saying that Trayvon Martin was not doing anything wrong, “You’re still the good guy here.”

Those (and now, the individuals included in “those” is legion) who worked hard to exonerate Fogen after he murdered Trayvon Martin were essentially saying:

Fogen has to still be the good guy here.
No matter WHAT he did,
No matter WHAT WHOPPERS he told,
No matter how innocent and undeserving Trayvon was;
No matter what the facts show,
No matter what the forensics reveal,
No matter what the law says,
No matter what his intentions were,
No matter how many wrongs he committed,
No matter what the morality issues are,
No matter what (including but not limited to ANYTHING)

George Zimmerman has got to stay THE GOOD GUY here.

… why? …

Because if he is NOT,
THEN:

A white guy went out hunting and chased down an anonymous Black kid he picked and targeted like game in a forest,
and he chased him
and he scared him
and he killed him
and there is no excuse.
And he did it because he knew he could get away with it.
And he DID get away with it.

If a theorem is true, the contrapositive is true.

If a white guy is a good guy,
then he is right to target and kill a Black and blame the Black.

If he is NOT right
(to target and kill a Black and blame the Black)
then he is not a good guy.

Since this case started with everyone in power saying:

HE IS STILL THE GOOD GUY,

Then he had to be NOT GUILTY of any crime
because it HAD to be that what he did was right.

OtherWISE, all the wrongs the white South has committed
would make them NOT the good guys any more.

And Rick Scott would not put up with that.
State’s Rights.

Serino gave us the verdict in the very beginning:

“YOU’RE STILL THE GOOD GUY HERE.”

Let us know your thoughts on this matter and if you believe Michael Dunn’s prosecution and trial will be rigged in his favor for the same reason.


George Zimmerman is a menace to society

July 28, 2013

Sunday, July 28, 2013

HAPPY BIRTHDAY TO CRANE-STATION!

Good morning my friends:

I do not believe George Zimmerman rescued anyone from that overturned SUV, but let us indulge ourselves and suspend disbelief for a few minutes.

Due to the possibility of a spinal fracture or spinal cord injury, that is an excellent way to kill or seriously injure someone (See #3 below).

WikiHow provides a step-by-step process to follow:

1. Evaluate the situation. Are there things that might put you at risk of harm? Are you or the victim threatened by fire, toxic smoke or gasses, an unstable building, live electrical wires or other dangerous scenario? Do not rush into a situation where you could end up as a victim yourself.

2. Remember your A,B,Cs. The A,B,Cs of first aid refer to the three critical things you need to look for.

Airway – Does the person have an unobstructed airway?
Breathing – Is the person breathing?
Circulation – Does the person show a pulse at major pulse points (wrist, carotid artery, groin)?

3. Avoid moving the victim. Avoid moving the victim unless they are in immediate danger. Moving a victim will often make injuries worse, especially in the case of spinal cord injuries.

4. Call Emergency Services. Call for help or tell someone else (a specific person, if possible) to call for help as soon as possible. If you are the only person on the scene, try to establish breathing before calling for help, and do not leave the victim alone for an extensive amount of time.

5. Determine responsiveness. If a person is unconscious, try to rouse them by gently shaking and speaking to them.

6.If the person remains unresponsive, carefully roll them onto their back and open his airway.

Keep head and neck aligned.
Carefully roll them onto their back while holding his head.
Open the airway by lifting the chin.

7. Look, listen and feel for signs of breathing. Look for the victim’s chest to rise and fall, listen for sounds of breathing (place your ear near the nose and mouth, and feel for breath on your cheek.

If the victim is not breathing, see the section below.

If the victim is breathing, but unconscious, roll them onto their side, keeping the head and neck aligned with the body. This will help drain the mouth and prevent the tongue or vomit from blocking the airway.

8.Check the victim’s circulation. Look at the victim’s color and check their pulse (the carotid artery is a good option; it is located on either side of the neck, below the jawbone). If the victim does not have a pulse, start CPR.

9. Treat bleeding, shock, and other problems as needed. After you have established that the victim is breathing and has a pulse, your next priority should be to control any bleeding. Particularly in the case of trauma, you should take steps to control or prevent shock. Click on any of the linked articles for detailed instructions on how to manage a particular problem.

How to Stop Bleeding – Control of bleeding is one of the most important things you can do to save a trauma victim. Use direct pressure on a wound before trying any other method of managing bleeding. Read the linked article for more detailed steps you can take.

How to Treat Shock – Shock, a loss of blood flow to the body, frequently follows physical and occasionally psychological trauma. A person in shock will frequently have cool, clammy skin, be agitated or have an altered mental status, and have pale color to the skin around the face and lips. Untreated, shock can be fatal. Anyone who has suffered a severe injury or life-threatening situation is at risk for shock. Click on the linked article for information on how to treat shock.
How to Help a Choking Victim – Choking can cause death or permanent brain damage within minutes. Read this article for ways to help a choking victim. The article addresses helping both children and adult choking victims.

How to Treat a Burn – Treat first and second degree burns by immersing or flushing with cool water (no ice). Don’t use creams, butter or other ointments, and do not pop blisters. Third degree burns should be covered with a damp cloth. Remove clothing and jewelry from the burn, but do not try to remove charred clothing that is stuck to burns.
Treat a Concussion – If the victim has suffered a blow to the head, look for signs of concussion. Common symptoms are: loss of consciousness following the injury, disorientation or memory impairment, vertigo, nausea, and lethargy. Read the linked article for the best ways to treat a concussion.

How to Treat a Spinal Injury Victim – If you suspect a spinal injury, it is especially critical that you not move the victim’s head, neck or back UNLESS THEY ARE IN IMMEDIATE DANGER. You also need to take special care when performing rescue breathing or CPR. Read this article to learn what to do.

How to Treat a Bullet Wound – Bullet wounds are serious and unpredictable. Read on for special considerations when treating someone who has suffered a gunshot wound.

10. Stay with the victim until help arrives. Try to be a calming presence for the victim until assistance can arrive.

For additional information on what to do, please go ref=”http://www.wikihow.com/Do-Basic-First-Aid”>here.

So let me get this straight. This fool calls 911 when someone is walking in the rain but he does not call 911 when he happens on the scene of a rollover accident.

What a guy!

If George Zimmerman truly is not guilty of murder and he did pull people out of this wreck, he has not learned anything from his experience with Trayvon Martin and continues to be a menace to society.

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Will the defendant testify or not testify?

July 6, 2013

Saturday, July 6, 2013

Good afternoon:

I write regarding whether the defendant should testify.

I advised my clients not to testify, unless there was some specific reason why I believed they had to testify. That reason typically would involve testifying about something that the jury would not otherwise know unless the client testifies. This is a common occurrence is self-defense cases and why most lawyers will say that a client must testify in such a case.

As Assistant State Attorney Richard Mantei said yesterday, the use of deadly force in self-defense is unlawful unless the defendant reasonably believed that he was in imminent danger of being killed or suffering serious injury when he used deadly force. The reasonableness requirement means that the defendant’s conduct must be evaluated objectively by comparing his conduct to the conduct of a reasonable person in the same situation.

The jury of 6 women, 5 of whom are mothers, will decide whether the defendant acted reasonably.

The defendant is the only person who can tell them whether he believed he was in such danger when he shot Trayvon Martin. According to various witnesses who have testified, he described a situation to them that, if true, probably would objectively constitute such a danger. For the past year, his lawyer, Mark O’Mara has been aggressively selling the defendant’s story on national television and waiving the two bloody cell phone photographs of the back of the defendant’s head and his face as proof that the defendant acted reasonably. I think the national media has uncritically accepted O’Mara’s sales job and shamelessly promoted it.

The critical question, however, is whether the 6 women, 5 of whom are mothers, believe what the defendant told others. They are not required to believe anything he said. I doubt they will believe him, given his many contradictory statements, implausible claims, and the forensic evidence, particularly the DNA evidence, which proves that Trayvon Martin did not hit him 20-30 times in the face, grab his head and repeatedly slam it into a concrete sidewalk, or attempt to smother him by placing his hands over the defendant’s nose and mouth.

I believe the prosecution has proved beyond a reasonable doubt that the defendant provoked the encounter with Trayvon Martin by following him in a vehicle and then on foot after Trayvon attempted to elude him. He hunted him down and attempted to restrain him contrary to a request by the police dispatcher not to follow him and he never identified himself or explained why he was restraining him. Under these circumstances, Trayvon Martin was entitled to use reasonable force to defend himself, escalating to deadly force when the defendant pulled out his gun. Therefore, Trayvon Martin used lawful force to defend himself and the defendant’s use of force was unlawful.

If he were my client, I would tell him that this is my assessment.

If he responded with, “What about my mother identifying me as the person who screamed?” I would say she did not do so unequivocally. Sybrina Fulton did and she was credible.

I would tell him that he gets to make the call regarding whether to testify. Given my assessment that the jury is going to convict him, I would also tell him that his only chance to avoid conviction would be to testify and persuade those 6 women, 5 of them mothers, that they should not convict him.

I would explain the following information.

The burden of proof in all criminal cases in this country is on the prosecution to prove beyond a reasonable doubt that the defendant committed the crime charged. The defendant is presumed innocent throughout the trial and the jury must find him “not guilty” unless the prosecution overcomes the presumption of innocence by proof beyond a reasonable doubt.

The term “beyond a reasonable doubt” is generally defined as such a doubt as would exist in the mind of a reasonable person after fully and fairly considering all of the evidence or lack of evidence. The prosecution is not required to prove guilt beyond all doubt, just beyond a reasonable doubt. Generally, a reasonable doubt is a doubt for which a reason exists, as opposed to a speculative doubt or a mere suspicion. The Florida instruction states that a person is convinced beyond a reasonable doubt if they have an abiding belief in the truth of the charge. An abiding belief is a long lasting belief. The idea is that a juror is convinced beyond a reasonable doubt if they are sure that they will not change their mind sometime in the future due to some doubt they have about the strength of the evidence.

The definition of reasonable doubt is circular, which frustrates jurors who expect and want reasonable doubt quantified. For example, preponderance of the evidence, which is the burden of proof in a civil case, is defined as proving that a proposition is more likely so than not so or supported by more than 50% of the evidence. There is no equivalent percentage of certainty used to define reasonable doubt. I believe most trial lawyers and judges would agree that it’s possible that different juries hearing the same case could reach different conclusions. This is why attorney voir dire during jury selection and the use of cause and peremptory challenges to select a jury are so critically important.

Our legal system guards and protects the sanctity of the jury room and juror deliberations. A jury is never required to explain or justify its verdict. As a result, a jury actually gets to decide what constitutes reasonable doubt, even though they are never told that they have this power. The jury is a reflection of the community and it acts as the conscience of the community when it decides whether the prosecution has proved the defendant’s guilt beyond a reasonable doubt.

I would tell him that if he can express his humanity and touch their hearts, he has a chance at manslaughter.

I would also tell him that he must tell the truth without any bullshit like he uttered on the Hannity Show.

He must admit when he lied, to whom he lied, and why he lied.

He must convince them that he acted out of fright, not anger.

I think he’s going to testify for all the wrong reasons because he has always been able to lie his way out of trouble.

Ain’t going to work this time.

I have one final reason for believing he will testify. His lawyers did not voir dire the prospective jurors on his right to remain silent and not testify. I always did that in my cases to make sure the jurors understood that they could not use his silence against him by presuming he had something to hide.


Judge Debra Nelson denies defense motion for judgment of acquittal

July 5, 2013

Friday, July 5, 2013

Good evening:

Judge Debra Nelson summarily denied a defense motion for a judgment of acquittal this afternoon after the State rested its case.

The first witness called by the defense was the defendant’s mother, Gladys Zimmerman, who identified him as the person who uttered the terrified death shriek that is audible in the background of a 911 call. However, she admitted on cross examination that she had never heard him scream for help or cry out like that.

Her testimony contrasted sharply with testimony this morning by Sybrina Fulton, Trayvon Martin’s mother, who identified him quietly and sorrowfully without equivocation.

The State rested its case after presenting the testimony of Dr. Bao, the Assistant Medical Examiner who performed the autopsy on Travon Martin. He described the gunshot wound as direct from front to back with the hollow point bullet passing through the front and rear wall of the right the ventricle before coming apart and scattering in different directions finally coming to rest in the pericardial sac.

He testified that Trayvon would have been conscious and in pain from 1 to 10 minutes but unable to move or speak during that time. His testimony contradicts the defendant’s claim that Trayvon sat up and said, “You got it,” or “You got me.”

It also makes it extremely unlikely that he did not know that Trayvon was dead before the police arrived, contradicting his claim on the Sean Hannity Show that he did not know that he’d hit Trayvon when he fired the shot and did not find out he was dead until someone told him at the police station later that evening.

The defendant’s claim on the Sean Hannity Show that he has no regrets, would not do anything differently, and everything happened according to “God’s plan,” is chilling in light of today’s testimony.

Judge Nelson recessed the trial for the weekend until Monday morning at 9 am EDT.

Between now and then, the defendant will have to decide whether to testify or remain silent.

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Welcome to liveblogging day 9 Zimmerman trial (morning session)

July 5, 2013

Friday, July 5, 2013

Good morning:

Court will resume this morning at 8:30 am EDT.

The prosecution probably will rest is case today.

I am expecting the Assistant Medical Examiner, Dr. Bao, who did the autopsy. Expect graphic and gruesome photos. If you aren’t into that, you may want to cover your screen and listen.

Also expecting the State to call a wind-up witness, possibly FDLE Detective Gilbreath to connect all the dots with charts, diagrams and timelines.

Sybrina Fulton may also testify to identify Trayvon’s voice. If she does, expect Don West to do his best to impeach her credibility by accusing her of being a bad parent and bringing up the lawsuit against the HOA.

Here’s the link to the livestream coverage.

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

See you in court.

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Defendant faces Hobson’s Choice

July 4, 2013

Thursday, July 4, 2013

Happy Independence Day to everyone!

I write today to allay concerns regarding the sufficiency of the State’s case.

First, we know they are going to call the Dr. Bao, the Assistant Medical Examiner who did the autopsy. I think we can reasonably expect that he will tie up any remaining loose ends regarding Trayvon’s death. Expect graphic and gruesome photographs that will firmly ground this case in the reality of a death that did not need to happen.

Second, the prosecution always ends its case-in-chief with what we call a wind-up or summary witness who ties everything together with the aid of charts, graphs and timelines that bring the evidence into focus. I am anticipating that FDLE Detective Gilbreath will be the witness and Bernie de la Rionda will ask the questions that steers him through the maze and haze.

Third, I am expecting the State will call Sybrina Fulton and she will identify her son as the person who uttered the terrified death shriek.

I believe the State will use most of tomorrow to finish up its case.

After the State rests, the defense will move to dismiss the murder charge and enter a judgment of acquittal on the ground that the State failed to present a prima facie case.

The test sJudge Nelson will apply in deciding that motion requires her to assume for the purpose of deciding the motion that all of the evidence introduced during the State’s case-in-chief and all reasonable assumptions that can be drawn from that evidence are true. Given those assumptions, she must decide if a rational trier of fact (i.e., a juror) could find the defendant guilty beyond a reasonable doubt of murder in the second degree.

Expect Judge Nelson to deny the defense motion.

After she denies that motion, the defense will have to decide whether to present any evidence. I believe sufficient evidence of self-defense has come in through the defendant’s statements to support instructing the jury on self-defense. Therefore, the defendant will not have to testify to get that instruction and the defense could rest without calling any witnesses.

Will the defendant testify?

As I commented last night,

The combination of the SPD photographs that show no significant injuries to the defendant’s face and head and the absence of any of the defendant’s blood and DNA on Trayvon Martin’s fingernails and his hoodie sweatshirt, particularly the sleeves and cuffs, put the lie to the defendant’s story.

Trayvon Martin did not hit the defendant repeatedly or slam his head against a cement sidewalk because, if he had done so, he would have been covered with the defendant’s blood and DNA.

Therefore, the defendant was never reasonably in fear of death or serious bodily injury.

Trayvon Martin’s fingernails and sleeves would have been drenched in blood, if the defendant’s story were true. The argument that the rain washed away the defendant’s DNA, and/or the packaging of the damp hoodie in a plastic biohazard bag degraded all of the defendant’s DNA is specious because Trayvon’s blood and DNA were detected.

There is no question that the defendant followed Trayvon Martin first in his vehicle and then on foot with the intent of preventing this “asshole from getting away.”

There is no question that Trayvon Martin attempted to run away from the defendant.

There is no question that the defendant had two opportunities to identify himself but decided not to do so.

There is no question that the defendant ignored the dispatcher’s warning to cease from following Trayvon Martin when he told the dispatcher to have the officer en route call him for a location and he subsequently pursued Trayvon Martin into the grassy area behind the townhomes south of the T intersection.

Given his unambiguously expressed intent to prevent Trayvon Martin from getting away, there is no doubt that he confronted him when he found him.

The defendant’s hostile pursuit makes him the aggressor and he cannot legitimately claim that he acted in self-defense, unless Trayvon Martin resisted his effort to detain him with deadly force and he could not withdraw from the encounter.

The defense claim that Trayvon Martin was “armed” with a cement sidewalk is controverted by Dr. Rao’s testimony and the DNA evidence.

I think the jury will likely find the defendant guilty, if he does not testify.

Yet, I cannot imagine how he can talk himself out of the mess he has created.

He has the right to decide whether to testify.

We will have to wait and see what he decides to do.

I am not expecting the defense to present any other evidence, with the possible exception of calling a family member(s) to identify the defendant as the person who uttered the terrified death shriek.

I suspect the jury will not believe them since the defendant was never in any danger and the shriek abruptly ends with the gunshot that silenced Trayvon Martin forever.

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Prosecution delivers in seventh day of trial in Zimmerman case

July 2, 2013

Tuesday, July 2, 2013

Good afternoon:

This was a strong day for the prosecution.

Today’s session began with Judge Nelson instructing the jury to disregard Investigator Chris Serino’s testimony that he believed the defendant told the truth. Judge Nelson had ruled in limine before the trial began that police officers cannot express their personal opinions as to the defendant’s guilt or innocence or whether he told the truth. Defense attorney Mark O’Mara violated that order when he asked Serino if he believed the defendant. Therefore, Judge Nelson properly ordered the jury to disregard Serino’s answer.

If the shoe had been on the other foot and a prosecutor had asked the lead investigator if he believed the defendant when he denied guilt and the answer was “No,” a mistrial would have been declared and the jury would have been sent home. If the error were deemed deliberate (i.e., provoked) because the trial was not going well, the Double Jeopardy Clause would prevent a retrial

Although not much was said about what happened, it was a very serious error and an extremely sleazy move by O’Mara.

In any event, Serino was defending how he handled the case before it was taken away from him. He had formed his opinion based on eye and ear witness testimony, the defendant’s statements, and his recorded NEN call. He did not have the benefit of considering the forensic evidence that has not been introduced yet and the autopsy report.

In a strong redirect, Bernie de la Rionda reviewed several inconsistencies in the defendant’s statements, such as his claims that he forgot the name of one of only three streets in his neighborhood, his claim that he had to walk all the way to Retreat View Circle to look for an address when they were right in front of his face on Twin Trees Lane, and his claim that he did not follow Trayvon Martin even though he admitted that he went in the same direction.

The State played the Hannity interview in which the defendant denied knowing anything about the SYG law, expressed no regrets, and said it was all according to God’s plan. He said he did not believe Trayvon Martin was afraid of him and also said he was not afraid of Trayvon Martin whom he described as “skipping away” instead of running away.

Dr. Valerie Rao, a forensic pathologist and assistant medical examiner testified that the defendant’s injuries to his face were minor and insignificant and could have been caused by a single blow.

The State was going to follow that testimony with the testimony of a professor at the local community college introducing the defendant’s textbook and course work on the law of self-defense and Florida’s Stand Your Ground law. They also had his application for employment with a police force in a county in Virginia and an application to ride-a-long as a civilian with a Sanford police officer.

Defense objected and Judge Nelson gave the defense until tomorrow morning at 8:30 am to prepare a response.

This was a strong day for the prosecution.

(H/T to disappointed for reminding me to include the defendant’s description during the Hannity interview of Trayvon “skipping.”)

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What really happened moments after the gunshot in the Zimmerman case

June 22, 2013

Saturday, June 22, 2013

Good morning:

Don West impeached his client with the legal document he filed yesterday titled, Defendant’s Specific Response to State’s Motion in Limine Regarding Self-Serving Hearsay Statements of Defendant.

He said at pages 2-3.

Witness 13 and his wife heard a commotion in the back of their townhome. They heard yelling and then heard a shot. Witness 13 grabbed a flashlight and went outside to see what had happened. Within seconds of the shooting, W13 approached Mr. Zimmerman who was staggering, bleeding and breathing hard. The witness observed blood on Mr. Zimmerman’s face and the back of his head consistent with someone having been injured in a fight. Mr. Zimmerman asked W13 if he was bleeding? Witness 13 said “Yes” and W13 asked Mr. Zimmerman what had happened? Mr. Zimmerman told W13 that the other person was “beating me up” and he shot him.

Within a minute or so, Sanford Police Officer Tim Smith arrived on foot at the location where Mr. Zimmerman and W13 were standing. Officer Smith spoke with Mr. Zimmerman at the scene upo his arrival. Mr. Zimmerman acknowledged being the person who fired the shot and that he had a firearm on him. Mr. Zimmerman spontaneously stated that he had yelled for help and that no one helped him.

With that fresh in your mind, please watch what the defendant told the police about those moments during his walk-through for the Sanford Police Department a little less than 24 hours after he killed Trayvon Martin.

Thank you to LLMPapa for preparing these two clips from the walk-through.

Clip 1

Clip 2

Congratulations, Mr. West.

You have succeeded in proving that your client lied.

Can you pass the straight-face test when you argue to Judge Nelson that the defendant’s “spontaneous” statements to W13 are reliable and accurate?

What is she going to think about your credibility and professionalism when the State shows her the walk-through video?

By the way, was his statement to the person he called on his cell phone another “spontaneous” utterance?

As long as you are spillin’ the beans, why don’t you tell us who he called and what he said.

FYI: A few minutes after I posted this article, I reversed the order of the two clips because #2, which is now #1, is more directly relevant given the focus of the article. I apologize for any confusion that may have caused.


Zimmerman’s statements after the shooting are not admissible

June 21, 2013

Friday, June 21, 2013

Good evening:

Don West filed a written motion this afternoon identifying the defendant’s statements that he claims are admissible pursuant to the res gestae exception to the hearsay rule.

The statements are hearsay and not admissible pursuant to the res gestae or any other exception to the hearsay rule.

Mr. West describes the statements as follows:

Witness 13 and his wife heard a commotion in the back of their townhome. They heard yelling and then heard a shot. Witness 13 grabbed a flashlight and went outside to see what had happened. Within seconds of the shooting, W13 approached Mr. Zimmerman who was staggering, bleeding and breathing hard. The witness observed blood on Mr. Zimmerman’s face and the back of his head consistent with someone having been injured in a fight. Mr. Zimmerman asked W13 if he was bleeding? Witness 13 said “Yes” and W13 asked Mr. Zimmerman what had happened? Mr. Zimmerman told W13 that the other person was “beating me up” and he shot him.

Within a minute or so, Sanford Police Officer Tim Smith arrived on foot at the location where Mr. Zimmerman and W13 were standing. Officer Smith spoke with Mr. Zimmerman at the scene upo his arrival. Mr. Zimmerman acknowledged being the person who fired the shot and that he had a firearm on him. Mr. Zimmerman spontaneously stated that he had yelled for help and that no one helped him.

The defense bases its argument on Alexander v. State, 627 So.2d 35, 43-44 (1st DCA 1993), where the Court stated,

We conclude that the trial court erred in excluding the testimony of witnesses to the shooting that described appellant Alexander’s exclamations and actions immediately after firing the shot that killed the victim. This testimony was admissible under the res gestae rule now codified in sections 90.803(1), (2), and (3), Florida Statutes (1991), which define the conditions for admissibility of (1) spontaneous statements, (2) excited utterances, and (3) then existing mental and emotional conditions of the declarant. The statements about which these witnesses could testify were made almost simultaneously with the act of shooting, a period of time too short to support a finding of fabrication that would destroy the apparent trustworthiness of this evidence. The mere fact that statements are self-serving is not, in and of itself, a sufficient evidentiary basis for their exclusion from evidence. No legal principle excludes statements or conduct of a party solely on the ground that such statements or conduct is self-serving. State v. Johnson, 671 P.2d 215 (Utah 1983); State v. Wallace, 97 Ariz. 296, 399 P.2d 909 (1965); Commonwealth v. Fatalo, 345 Mass. 85, 185 N.E.2d 754 (1962). See also United States v. Dellinger, 472 F.2d 340, 381 (7th Cir.1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). While exculpatory statements of the accused generally are excluded from criminal cases because of their hearsay character, 29 Am.Jur.2d Evidence § 621 (1967), the courts of this state have long recognized an exception to this general rule where the statements form a part of the res gestae of the alleged offense. Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Lowery v. State, 402 So.2d 1287 (Fla. 5th DCA 1981); Watkins v. State, 342 So.2d 1057 (Fla. 1st DCA), cert. denied, 353 So.2d 680 (Fla. 1977).[2] Furthermore, Florida has followed a liberal rule concerning the admittance of res gestae statements. See Appell v. State, 250 So.2d 318 (Fla. 4th DCA), cert. denied, 257 So.2d 257 (Fla. 1971). Accordingly, we do not see any basis on this record for concluding that this testimony was lacking in apparent trustworthiness and probative value. Thus, we are impelled to conclude that the exclusion of the proffered testimony of res gestae statements in this case was an abuse of discretion and, under the circumstances of this case, cannot be treated as harmless error.

(Emphasis supplied)

Accord: Stiles v. State, 672 So.2d 850 (4th DCA 1996).

Therefore, the critical question for Judge Nelson to decide is whether the statements “form a part of the res gestae of the alleged offense” such that the Court can find that there is no basis to conclude that “the testimony [is] lacking in apparent trustworthiness and probative value.”

Contrary to the defense assertion that “within seconds of the shooting,” the witness saw the defendant “staggering, bleeding and breathing hard,” the evidence will show that the witness described the defendant as “calm and collected” and within a few minutes all of his vital signs were normal when an EMT checked him. Indeed, he was cool, calm and collected.

With the exception of a few minor injuries that did not require stitches, a trip to the ER or even a bandaid, the defendant did not even appear to have been in a fight. Moreover, the only witness who described seeing a fight subsequently retracted that statement.

The evidence also will establish that the terrified death shriek ended when the defendant fired the fatal shot and both of the state’s expert witnesses have excluded the defendant as the person who uttered that haunting scream.

The evidence will show that, at the time he uttered the statements, he knew that the police were on their way and due to arrive any second.

Finally, the evidence will show that, instead of using his cell phone to call 911 for an emergency vehicle and attempting CPR until medical assistance arrived, he mounted Trayvon, placed his hands around his throat and subsequently stood up and had a casual conversation with a neighbor about the type of gun and ammunition he used to shoot Trayvon.

Under these circumstances, unlike the two cases cited by Mr. West, there is no basis for Judge Nelson to conclude that the statements “form a part of the res gestae of the alleged offense” such that the Court can find that there is no basis to conclude that “the testimony [is] lacking in apparent trustworthiness and probative value.” In fact, quite the opposite is true.

Here is Wiki with a little more information on the res gestae exception, in case it remains unclear:

Under the Federal Rules of Evidence, res gestae is an exception to the rule against hearsay evidence based on the belief that, because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else (i.e., by the witness, who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility. Statements that can be admitted into evidence as res gestae fall into three headings:

Words or phrases that either form part of, or explain, a physical act,

Exclamations that are so spontaneous as to belie concoction, and

Statements that are evidence of someone’s state of mind.

The defendant’s statements establish that he was in a full cover-up mode knowing that the police were en route and due to arrive any second.

Therefore, the cases cited by Mr. West do not apply and the defendant’s statements are inadmissible hearsay.

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