Zimmerman: The Initial Decision Not to Charge Zimmerman Should Be The Subject Of A Separate Investigation

November 25, 2012

Hello, everyone.

Happy belated Thanksgiving to all of you. You nave not seen my fonts for a few days because we had family from out of town join us for Thanksgiving.

Question posed by Roderick2012.

Professor, could you write a post as to how you would question Serino if you were the State and O’Mara?

Serino seems like a big liability for the State and a gift for the defense given his contradictory statements and bad acts of leading witnesses and having leaked footage of Zimmerman to the media.

If you were BDLR how would you avoid the minefields and use him to get the evidence of Zimmerman’s re-enactment and Zimmerman’s police interviews into evidence?

I have been following the excellent comments and discussion about Serino, the deficient SPD investigation that he conducted and the apparent race and influence-driven decision by State’s Attorney Norm Wolfinger, SPD Chief Bill Lee and others not to charge Zimmerman with a crime. Regardless of the outcome in the Zimmerman case, that failed process must be thoroughly and transparently reviewed to identify what went wrong, why it went wrong, and recommend what should be done to make sure it never happens again.

No, I am not talking about appointing yet another committee to study a problem, minimize it, and assign blame to the proverbial rotten apple who is identified as the exception to an otherwise thoroughly competent and professional police department. I am disgusted by the use of strategies to identify and blame yet another fall guy and issue a false explanation of what happened that contains enough truth to plausibly deny the existence of widespread corruption and incompetence at the management and policy making level of an organization. Concealing the truth to protect and continue conducting business as usual will not solve any problems or restore citizen confidence in the ability of the police department to do its job. Instead, concealing the truth will promote cynicism and destroy faith in the ability of the police department to carry out its duty to enforce the laws without regard to race and privilege for the benefit of all of the people, rather than some of them. Citizen faith and confidence in the Sanford Police Department to ignore race and economic class while enforcing the laws is breaking down. Papering over the institutional and systemic problems that have been revealed in the discovery released to the public in the Zimmerman case, in effect, let the cat get out of the bag. Therefore, a denial of what we know to be true will further delegitimize the department.

I think that one of the most important lessons of the Zimmerman case is the realization that racism is alive and well in this country. An extraordinary number of people express racist opinions about Trayvon Martin and his family, for example, while vehemently denying that race played any role in accepting Zimmrman’s ghetto Black-gangsta defense. they are racist. Yes, indeed. We still have a long way to go before we eliminate racism in this country.

Now, to answer Roderick’s question, I do not believe that mentioning police misconduct will benefit either side. The defense needs to resist the urge to mention it because the misconduct benefited the defense at the expense of the truth and Trayvon Martin’s reputation. Asking the jury to acquit Zimmerman, despite overwhelming evidence of guilt, because some racist cops wanted to award Zimmerman a medal for killing a Black gangsta is not a winning argument. The prosecution has no reason to raise the subject because it has the evidence to convict Zimmerman.

Therefore, the Zimmerman trial will not be the appropriate forum to investigate and expose racism in the Sanford Police Department.

Zimmerman: Why I am so Critical of SPD Investigator Chris Serino

November 21, 2012

Some of you have expressed support for SPD Investigator Chris Serino. I respectfully disagree.

I believe he should have been fired for tampering with witnesses during the first night of the investigation by “correcting” witnesses who had identified Trayvon Martin as the person who uttered the terrified shriek. He informed them that the investigation had established that George Zimmerman uttered it. This is absolutely unacceptable.

No competent professional investigator should ever under any circumstances correct a witness’s testimony to support the police theory of the case. This is police misconduct and it is one of the major causes of wrongful convictions of innocent people.

We see it most often when the police have a particular suspect in mind and attempt to build a case against him, despite a lack of evidence, by “correcting” eyewitnesses who identified someone else and suggesting that their investigation has identified a different suspect as the perpetrator of the crime. Eager to assist the police to arrest and convict the “right” suspect, the eyewitnesses will often change their minds and identify the person whom the police have selected as the correct choice. The person is convicted and occasionally sentenced to death, assuming it’s a death penalty case. Years later, however, the defendant is exonerated by post-conviction DNA testing.

In such a case, “correcting” the witness or suggesting whom the witness should select causes multiple harms. The first, of course, is the wrongful conviction of an innocent person and the resulting destruction of their life. The second harm is even worse because it allows the perpetrator to remain free to commit more crimes. Therefore, the practice of “correcting” witness identifications or testimony to support the police theory of a case against a particular suspect has been universally condemned and every police officer in the country has been warned not to do it.

Nevertheless, some police officers with the occasional approval of a prosecutor have persisted in this discredited practice to make sure they get the “right” bad guy. So the wrongful convictions keep on happening and the innocent person languishes in prison or is executed, if it’s a death penalty case. The possibility of a post conviction exoneration by a DNA test is only available in cases where there is biological evidence to test. Most cases do not have biological evidence to test. Wrongfully convicted innocent people in those cases have no remedy except by filing a direct appeal or a habeas corpus petition. Their efforts are rarely successful because they have no way to prove their innocence.

I believe Serino may have saved his job by unexpectedly filing the capias recommending that State’s Attorney, Norm Wolfinger charge George Zimmerman with manslaughter. His request was rejected because Wolfinger had already decided not to charge Zimmermman. Nevertheless, Serino looked good for recommending Zimmerman be charged.

I give Serino a lot of credit for determining which way the wind was blowing and adjusting quickly to the shift in direction.

That talent enabled him to shift from aggressively steering the investigation in Zimmerman’s favor by tampering with witnesses that first night regarding who was screaming to interrogating Zimmerman during the next few days in a manner that allowed him to plausibly tell his supervisors that he was assisting Zimmerman to get his self-defense claim together, but nevertheless leaving him room to claim that he was just leading him on to build trust and get him to make damaging admissions, if the wind changed and people demanded to know why he was being so supportive and agreeable while he was interrogating Zimmerman.

Seems to me that Serino is a master politician in the department capable of convincing everyone he is their loyal friend even as he holds his cards close to his chest and quickly adjusts to align himself with whomever holds the power at any particular time.

I do not trust people like that and one of the primary reasons why my opinion is so harsh is due to the way he questioned Tracy Martin about the terrified shriek.

In the same interview when he showed him a photograph of Trayvon’s dead body and asked him if he could identify it, which is standard procedure, he played a recording of the 911 call with the terrified shriek in the background and asked him if he was 100% certain that was Trayvon screaming.

This was not the right time or the proper way to question him about the shriek. Wanting to help the investigation but obviously shocked and dismayed by the completely unexpected news that his son had been shot to death in Brandy Green’s supposedly safe gated community, Tracy Martin answered “No.”

Instead of waiting for another time after Tracy Martin had adjusted to the shock of Trayvon’s death and was prepared to focus on providing complete information about Trayvon, Serino ambushed him with a question demanding certainty in the form of a specific “yes” or “no” answer. In my opinion, the form and timing of that question strongly suggests that Serino was fishing for a no answer instead of just asking him to listen carefully and indicate whether he thought Trayvon uttered the scream.

Serino must have known that Trayvon very likely uttered the shriek because it sounds like a young person screaming in terror and it ended abruptly with the fatal gunshot. Because Zimmerman had the gun and fired the fatal shot, he had no reason to shriek in terror and stop shrieking at the same instant that he pulled the trigger.

If Tracy Martin had been provided with a reasonable opportunity to collect his wits and think about it, he would have realized the same thing. In fact he has changed his mind and stated that he is now certain that Trayvon uttered that awful shriek.

But the damage has been done and now he can reasonably expect to be confronted at trial with his initial denial and accused of changing his mind to get back at Zimmerman for killing his son. Is it not awful enough to have to reopen wounds and testify about losing your beloved son? Why should he also have to endure being called a liar because, given the nature of the question he was asked, he at first he denied that Trayvon was screaming. He will fear that the jury will not believe him and he will suffer terrible anxiety and guilt that he failed his son when his son needed him. If Zimmerman is acquitted, he will likely believe to the end of his days that Zimmerman would have been convicted, if only he had not failed his son.

This situation never should have happened. Serino did an awful thing to a father in terrible pain by taking advantage of his vulnerability to obtain a “no” answer that would support Zimmerman’s claim of self-defense at a time in the investigation when it should have been apparent to him that Zimmerman’s claim of self-defense was falling apart. I am shocked by his lack of empathy and willingness to take advantage of a grieving father to get what he wanted.

An investigator is never supposed to be an advocate defending a suspect in a homicide investigation, particularly in the early stages of the investigation before much is known. That is inexcusable and he is fortunate that I will not be cross examining him about how he conducted that investigation.

He certainly made the right decision when he decided to retain counsel and the other police officials including Chief Bill Lee would be well advised to do the same.

They had better not count on Serino refusing to turn on them if push comes to shove and he is accused of a state or federal crime based on how he conducted the investigation.

I do not believe he will go down without taking others down with him and, in fairness to Serino, he was probably ordered to do what he did.

Stay tuned for continuing developments because this fascinating aspect of the case is heating up.

Zimmerman: The Police Were Inexcusably Incompetent for Failing to Ask Zimmerman to Voluntarily Provide a Blood Sample

November 13, 2012

Many of you have commented that Zimmerman sounded like he was high during his non-emergency call to SPD prior to the shooting. Many of you also have commented as Rachael did just approximately 30 minutes ago:

“Everyone I have played that call for, and I mean people who do not follow this case, have said that he sounded impaired, even though all I did was play the call without saying anything. They all spotted it. Now it may well be that due to everything that happened, by the time the police got there, he did not seem impaired to them (adrenaline rush?), I will still never forgive them for not having tested him. Yeah, I know, he wasn’t charged so I guess they couldn’t but still.”

Yes, they probably did not have probable cause to get a search warrant to seize blood, but that did not prevent them from asking him to voluntarily provide a blood sample. They could have asked him for a blood sample and, as cooperative as he was attempting to portray himself, I have little doubt that he would have agreed to provide it.

For example, they asked him to voluntarily provide a DNA sample collected with a buccal swab scraped along the inside of his cheek and he readily agreed to it.

This is yet another example of inexcusable police incompetence.

Serino was in charge of the investigation and he, therefore, must bear the responsibility for this failure, even though he remained at the crime scene and ordered Doris Singleton to interview Zimmerman.

She was only a phone call away.

Alternatively, an officer at the scene could have asked for and obtained consent and then transported him to the hospital for the blood draw.

Therefore, to claim they did not have the authority to take the sample is misleading and dishonest.

Worse, it is yet more evidence — in addition to “correcting” witnesses that Zimmerman was the person screaming for help rather than Martin — to support a belief that a decision had been made not to charge Zimmerman with a crime before an investigation had been conducted.

* * * *

Must give credit to Dave for beating me to the punch:

“It’s been pointed out before that the cops couldn’t test him wiithout either a search warrant or Zimmerman’s permission, but it wouldn’t have cost them anything to ask for his consent. He sure wasn’t shy about talking after being Mirandized.”

Dave the student snatched the pea from the palm of my hand.

Good work, son!

Zimmerman: How Should the Court Deal with Serino Telling Witnesses that Zimmerman Screamed for Help

November 4, 2012

How should the Court deal with Serino telling witnesses that Zimmerman was the person they heard screaming for help?

Should that evidence be admitted or excluded, and why?

To assist the discussion, I am going to provide context with an example that may come up during the trial.

Let us assume that Serino is the witness and O’Mara is cross examining him.

Q: When you interviewed the witness Mary Cutcher, you told her that the person whom she heard screaming for help was the person who survived, didn’t you?

A: Yes.

Q: And that person was George Zimmerman, correct?

A: Yes.

The prosecution is going to want to clean up this mess on redirect and here is an example of how that might be accomplished.

Q: Do you recall testifying on cross examination that you told the witness Mary Cutcher that George Zimmerman was the person who screamed for help?

A: Yes.

Q: Were you right or wrong about that?

A: I made a mistake. I was wrong.

Q: Please tell the members of the jury when and how you realized that you made a mistake?

A: I listened to a recording of a 911-call that I had not previously listened to and when I did, I could actually hear two different voices. Based on what I heard them say, I realized that I was mistaken.

Q: Showing you what has already been identified and admitted into evidence as State’s Exhibit 125, a recording of a 911-call that night, can you identify this recording?

A: Yes, State’s Exhibit 125 is the recording that I listened to when I realized my mistake.

Your Honor, may I play the recording for the members of the Jury.

The Court: You may.

Note that this potential scenario explains Serino’s error as an innocent mistake. For whatever reason, and he will supply the reason, he believed George Zimmerman was the person screaming for help.

What happens if he independently decided, or he was ordered to decide that George Zimmerman was the person screaming when he knew that was not true, or unlikely to be true?

Even if this scenario is what actually happened, I do not expect Serino will admit it and when you think about it, I do not believe the actual truth matters to the outcome of the Zimmerman trial.

In other words, even if Serino independently decided to attempt to convince witnesses that George Zimmerman was screaming for help, or he was ordered to do that, the identity of the person screaming does not change.

There are only two possibilities. Either Trayvon Martin or George Zimmerman uttered that terrified shriek and the jury can decide who it was by listening to the recording.

There really is no doubt and there never was any doubt because only two voices can be heard, one threatening and one pleading, and the shriek is punctuated with a solitary gunshot to the heart.

Therefore, police opinions and the expression of those opinions are not relevant. That is, they are not probative of Zimmerman’s guilt or innocence.

Therefore, you might reasonably expect the State to file a motion in limine (i.e., at the beginning of the trial) to prohibit the defense from mentioning or questioning witnesses about Serino’s efforts to persuade witnesses that Zimmerman was the person screaming for help.

If I were the judge, I would grant the State’s motion absent evidence from the defense that Serino’s error is relevant.

Note: I am not saying the issue of why Serino did what he did is not important. I believe it is very important and worthy of investigation to determine if it were an innocent mistake or evidence of a decision not to charge Zimmerman before the investigation was completed. There is more than a hint of corruption here and an investigation is warranted.

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