I have changed my mind and now support Judge Nelson’s decision

June 22, 2013

Saturday, June 22, 2013

Good afternoon:

I was in the waiting room at my doctor’s office down in Tennessee browsing through a dictionary looking for new words with which to torture y’all when CNN announced that Judge Nelson had issued an order excluding the State’s audio experts (Tom Owen and Dr. Alan Reich) from testifying at the trial. For those of you who may not be as familiar with the case as we are, both experts would have testified that George Zimmerman did not utter that haunting shriek. Dr. Reich also would have testified that Trayvon Martin likely uttered the shriek.

The anchor person said Judge Nelson determined that there is an absence of agreement in the scientific community that the methodologies used by Mr. Owen and Dr. Reich were capable of identifying the source of the terrified death shriek due to the current inability in the scientific community to match a voice exemplar with a shout, the poor quality of the 911 recording, and the short length of time in which there are no competing sounds on the recording and only the shriek can be heard (approximately 3 seconds).

Although I predicted Judge Nelson would deny the defense motion, I cannot say that I am surprised or dismayed by her decision. In fact, and I may surprise some of you with this statement, I am going to compliment Judge Nelson for her decision because it is the right decision at the right time in our nation’s courts and I believe it took a lot of courage for her to make it, especially in a high visibility case like this one in which the whole world is watching.

I have previously written about the deplorable state of forensic science in our nation and the need for standards, regulatory oversight, and mandatory blind proficiency testing of lab personnel modeled after the Clinical Laboratory Improvement Act (CLIA). There is no question in my mind that Dr. Nakasone and Dr. Weyman are on the right track attempting to establish a national set of standards and accepted methodologies for use in forensic voice identification. Judge Nelson did the right thing by endorsing their efforts and her decision was courageous because a lot of forensic scientists and the prosecutors and defense lawyers who employ them will criticize her.

My support for the admissibility of the results obtained by Mr. Owen and Dr. Reich is based on the unique set of circumstances of this case in which the shriek could only have been uttered by one of two known individuals. This situation only requires eliminating one of the two individuals. Since all of the experts who testified agreed that the methodologies used by the State’s experts have been used for many years and continue to be used today; it was easier to exclude than to declare a match; the defense was unable to find an expert willing to testify that George Zimmerman uttered the shriek; and the circumstantial evidence proves that Trayvon Martin uttered the shriek; I concluded that the State’s experts should have been permitted to testify. I still believe that would have been an appropriate conclusion to reach applying the Frye rule.

I am very pleased and proud of your reaction to the news. I anticipated dismay, some panic, and cynical complaints that Judge Nelson is corrupt and the outcome is rigged. I anticipated this reaction because I confess that it was my first reaction. A 2-hour motorcycle ride home on a beautiful afternoon driving on a lesser-traveled 2-lane highway curving through forests and corn fields with the Crane-Station sitting behind me was the perfect antidote. I fully engaged in driving my motorcycle, forgot my disappointment, and realized the prosecution is in a much better position because of her ruling.

When I arrived home and checked the blog I saw that y’all were taking it in stride without any help from me. Y’all know that the prosecution does not need the expert testimony to convince the jury that Trayvon Martin uttered the shriek and I think y’all also realize that not presenting the expert testimony avoids the inevitable distraction and confusion that a battle of the experts might cause. Indeed, in a case like this with only two possible individuals who could have uttered the shriek, there is virtually no chance that any jury would conclude that the shooter uttered that shriek when the evidence will show that he was the person who was armed, he was the person who got out of his vehicle and ran after an unarmed Trayvon when Trayvvon attempted to get away from him, he was the person who admitted to establishing control over Trayvon with a wristlock before pulling his gun and shooting Trayvon, and the shriek ends with the gunshot. Just as we do not need a weatherman to tell us which way the wind blows, we also do not need experts to tell us who uttered that shriek. Neither will the jury.

Therefore, Judge Nelson did the prosecution a huge favor by excluding the experts. In essence, she applied the KISS rule and is forcing the prosecution to do the same thing. She deserves to be thanked for that, not criticized. Y’all realized that without any assistance from me and that is why I am so proud of you and so delighted to see how much you know about the case and how sophisticated you have become in understanding the evidence and the rules governing the use of expert witnesses.

Anyone lacking your knowledge of the evidence in this case would have thought the prosecution had lost any chance to convict George Zimmerman, given the near unanimity of so-called legal experts characterizing this ruling and the selection of an all woman jury as devastating disasters for the prosecution.

Before I got involved in this case, I did not believe my low opinion of the national media and their so-called legal experts could possibly get any lower. However, the nonsense they are spewing as informed opinion has significantly lowered the bar. Despite its availability, they are ignoring the evidence that we have so carefully analyzed and discussed. They have accepted Mark O’Mara’s false narrative and joined in demonizing an innocent 17-year-old kid with loving parents and a bright future. I would have considered myself extraordinarily fortunate if Trayvon were my son and I would have been extremely proud of him. Anyone lawyer who has joined in the demonization of Trayvon and his parents by appearing on national television and voicing an expert opinion regarding the case that endorses the false narrative as though it were true, is a fundamentally dishonest human being without empathy or moral compass.

In many ways, Travon’s case functions as a mirror reflecting the prejudices people have about race, black male teenagers, and black people as parents and citizens. With the selection off an all female jury, the case is reflecting the prejudices people have about women as decision-makers.

Before this case, I knew we had a long long way to go before we reach a place where we no longer disrespect people by the color of their skin and their gender.

Trayvon’s case has taught me that our society is far more racist and sexist than I imagined. His case is an opportunity to set the record right and recommit to seeking equality and justice for all of our people as opposed to a privileged few.

Congratulations to all of you from your humble professor.

Fred

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

June 6, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then the phone went dead.

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

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

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

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

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

I believe Judge Nelson will reach the same conclusion.

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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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