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.

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation.


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.

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation.


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


What to expect tomorrow at the hearings in the Zimmerman case

June 5, 2013

Wednesday, June 5, 2013

Good morning:

Except for RZ, Jr.’s unsupported claim that Dr. Alan Reich’s opinions are based on voodoo science, nothing new has been reported in the press today about the case.

Speaking of new, the purpose of a Frye hearing is to determine whether a new or novel scientific theory or methodology is generally accepted in the scientific community. If the answer to the question is “No,” evidence obtained using that theory or methodology will be excluded and the jury will never hear about it.

If the theory or methodology used is not novel or new, the evidence will be admitted and objections to the accuracy of the results will go to weight and not admissibility. In other words, the jury will determine how much weight to assign to the evidence.

I think the defendant’s objections go to weight rather than admissibility, since the technology used is not novel or new.

Therefore, I am predicting that Judge Nelson will deny the defense motion to exclude testimony by the defense audiologists, including Dr. Reich.

The other motion scheduled for tomorrow is the defense motion for sanctions and a judicial review of alleged prosecution discovery violations. This will involve a continuation of the hearing that began last Tuesday with Wesley West on the stand. West, the former Nassau County prosecutor who resigned due to differences of opinion with State Attorney Angela Corey last December, represents whistleblower Ben Kruidbos, the Fourth Circuit Director of Information Technology who is going to testify that Bernie de la Rionda had photographs and video from Trayvon Martin’s cell phone that he did not disclose to the defense.

As I have said before, “Who cares?”

BDLR turned over the BIN file to the defense back in January, but the defense did not hire anyone to extract it or purchase the software to do it themselves.

In addition, the information on the phone is not relevant, admissible or exculpatory and, in light of Mark O’Mara’s lie about a video supposedly depicting Travon laughing as his buddies beat up a homeless person, O’Mara should have the decency to withdraw the motion and apologize for filing it.

He will not do that, of course.

I would deny his frivolous motion and fine him, if not jail him for contempt, but Judge Nelson is nicer than I am, so she will just deny it or hold off on issuing a ruling until after the trial, which is what she did with the last defense motion for sanctions.

The testimony from the audiologists should be interesting and worth listening to. After they are finished testifying, I think O’Mara will deeply regret having asked for a Frye hearing.

This is a golden opportunity for BDLR to inform the jury panel, the nation and the world on the eve of trial that Trayvon uttered the death shriek.

The hearing is scheduled to begin at 9 am EDT.

We will live blog on the road via livestream from a motorcycle somewhere deep in Tennessee.

Ciao, baby.

______________________________________________________________

Please keep those donations coming.

We’ll need the gas money to get home.

Many blessings to all of you from

Fred and Crane


HLN reenactment falsely portrays shooting

June 4, 2013

June 4, 2013

Good afternnoon:

Vinnie Politano and his “expert” death investigator, Joseph Scott Morgan, stumbled badly out of the HLN starting gate with a false reenactment of the shooting that is inexcusable hall-of-shame material. Here’s the video of the reenactment:

Come on, son.

Reenactments are supposed to exactly reproduce the event being reenacted. They are misleading and worthless, if they do not.

This reenactment did not come close to reproducing the defendant’s description of the shooting because he told the police that, after Trayvon sucker-punched him in the nose to prevent him from calling the police and he fell down on his back, Trayvon mounted him in a seated position straddling his body and began raining down blows to his nose and face MMA style before switching to grab the sides of the defendant’s head and repeatedly slam the back of the defendant’s head against the concrete sidewalk. Then, as the defendant began crying out for help, Trayvon attempted to silence and smother the defendant by placing one hand over the defendant’s mouth and the other over the nose. That is when the defendant claims that he felt Trayvon’s hand on his chest sliding toward the gun that the defendant had concealed from view in a holster inside his pants against the back of his right hip. The defendant said he pinned Trayvon’s hand against his chest with the upper part of his right arm and then grabbed the gun with his right hand and fired the fatal shot taking care not to shoot his left hand.

According to the defendant, Trayvon was never standing over him leaning forward in the position taken by Politano. Indeed none of the hitting, slamming and smothering events described by the defendant would have been possible, if Trayvon were in a standing position.

So much for the defendant’s claim that he reasonably believed he was in imminent danger of death or serious injury such that he had to use deadly force to survive the encounter. Call me psychic, but somehow I do not think that is what Politano intended to demonstrate.

According to the defendant, they were in this position with Trayvon on top.

Here’s LLMPapa’s video:

Of course, it would not have been possible for Trayvon to have seen much less reached the gun from this position.

Therefore, we know the defendant was lying.

Since he and his expert ignored the defendant’s statement, what were they attempting to demonstrate?

I believe they were attempting to account for a straight-on shot front to back where the muzzle of the gun was in contact with the hoodie and shirt underneath it, but the fabric was 2 to 12 inches from the entry wound.

May I have a drum roll, please. Time to pull out ye olde trusty sledgehammer and pound a square peg into a round hole.

Yup, Trayvon must have been leaning forward and the fabric was hanging straight down.

Nice try, but no cigar.

The crime lab analyst who examined the sweatshirt and shirt beneath it found that the cloth was stretched at the time the fatal shot was fired and we have independently verified that the holes in the fabric do not align with the entry wound. They are displaced from the vertical in a diagonal direction toward Trayvon’s right hip.

Mere gravity does not account for this displacement.

I will tell you what does, however. The defendant had a grip on the sweatshirt and shirt with his left hand restraining Trayvon from getting away as he took careful aim and fired.

Not coincidentally, this also explains why the defendant said he “aimed” before he squeezed off the fatal shot in order to avoid shooting his left hand.

Politano’s clueless expert reenacted the shooting by holding his fake red gun with both hands, which is contrary to the defendant’s narrative.

Finally, we know the defendant was on top because W18 witnessed the shooting and said he was on top.

Clean heels with wet grass and mud on the toes of the defendant’s boots are not consistent with the defendant’s claim that he shimmied in an atttempt to get out from under Trayvon.

The back of the defendant’s jacket was wet because it was raining, not because he was lying on his back in the grass. A photograph of the back of his jacket taken at the police station did not show any mud or grass present.

Two conclusions can be reached from the evidence. The defendant lied and he was not in imminent danger of death or serious injury when he fired the fatal shot. In fact, he was in control of Trayvon when he killed him.

That is not self-defense.

It is second degree murder.

(H/T to LLMPapa for the video and Ay2Z for the inspiration to write this post)


Zimmerman case is simple: Trayvon Martin acted in self-defense

May 31, 2013

Friday, May 31, 2013

Good morning:

I hope to forever put to rest the following argument: Since the defendant had a right to get out of his vehicle and a right to follow Trayvon, those actions cannot be considered as evidence of guilt.

As I will soon show, that argument makes about as much sense as arguing that the purchase of a gun with intent to kill someone cannot be considered as evidence of premeditation because the person had a right to purchase the gun.

Both arguments fail because a lawful act can be committed to achieve an unlawful result. Yes, indeed. A would-be bank robber can purchase a clunker to use as a getaway vehicle after robbing a bank.

As any lawyer familiar with the law of conspiracy well knows, conspiracy indictments typically allege the commission of lawful acts by co-conspirators in furtherance of objectives of a conspiracy. Thus, simple events like using a cell phone to confirm a scheduled meeting with a co-conspirator are often charged as overt acts in furtherance of a conspiracy.

Therefore, the issue is not whether the act itself was lawful. The issue is what was the actor’s intent when he committed the act.

Nobody would seriously argue that the defendant could not get out of his vehicle and follow Trayvon Martin. He certainly could.

The relevant questions in this case are why did the defendant get out of his vehicle to follow Trayvon Martin and why did he lie about it afterward?

I do not believe the jury is going to have any difficulty figuring out the answers to those questions: The defendant intended to prevent this “asshole” from getting away and he shot him to death when Trayvon resisted. The defendant lied about it afterward because he did not want to go to prison.

Trayvon Martin is the only person who acted in self-defense.

That is basically all there is to this case.

_________________________________________________

I hate to hassle people for money, but contributions have been lagging this month.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


%d bloggers like this: