One of the most venerable lawyer’s aphorisms goes something like this:

If the facts and the law are against you, attack the police.

This is almost exclusively the province of defense lawyers as it is assumed—and virtually always the case—that the prosecution has the very great advantage of having the facts and the law on its side.  There should be no arrests and prosecutions otherwise.  But this is not at all the case in the George Zimmerman prosecution.  Not only are the law and the facts aligned against the prosecution, so are the police.

It is always the defense seeking to establish reasonable doubt about the prosecution’s case.  In the Trayvon Martin case, it is the prosecution seeking to establish reasonable doubt about the case of the investigating police!  It is difficult to explain precisely how unusual and downright strange this is.  The prosecution is  in the position of arguing against the police and much, if not all, of the evidence they’ve amassed, which is the universe-mandated role of the defense in any criminal case.  Consider these facts presented in Update 3 on April 23 of 2012 (“Gilbreath” is Dale Gilbreath, one of the two investigators for the Special Prosecutor):

* Gilbreath admitted that he did not interview Zimmerman.  [This means that everything he and his fellow investigator knew about Zimmerman's statements came from the materials collected by the Sanford Police. He has no new evidence in that part of the case.]

* Gilbreath could not justify the use of the word “confrontation” in the affidavit and looked very evasive in avoiding it.

* Gilbreath admitted he had no idea whose voice was calling for help, and admitted that he did not speak with Martin’s mother and that he could not confirm whether anyone spoke with Martin’s father about that or whether he could identify Martin’s voice on the various tapes…

* Gilbreath admitted he had no idea who started the fight.

* Gilbreath admitted that he had no evidence that conflicted with—no evidence to prove otherwise–Zimmerman’s statement that he was walking back to his truck before being assaulted by Martin.

* Gilbreath admitted that he had no evidence that conflicted with—no evidence to prove otherwise–Zimmerman’s statement that Martin assaulted him first.

* Gilbreath admitted that Zimmerman’s injuries were consistent with his account of the attack.  Amazingly, he also admitted he hadn’t read Zimmerman’s medical records from that night and that he had never requested a copy of those records.

From the moment a special prosecutor was appointed, it was pre-ordained that they and the Sanford Police would be at odds.  And when, apparently from the very beginning, Angela Corey aligned herself with and collaborated with the Scheme Team, a group of race-baiting lawyers with a financial interest in the case, it was a certainty that she and the local prosecutor–Norm Wolfinger–who did not find cause to charge George Zimmerman, would be at odds.

What is remarkable is that Corey made her charging decision based on the same record and facts available to the Sanford Police and Wolfinger.  We know this because at the initial bond hearing, their investigator, Gilbreath, testified that he (and this means the special prosecutor’s office) did not interview Zimmerman and clearly had no evidence beyond what was then known.   In other words, he had done no real additional investigation beyond that already completed by the Sanford Police, and likely, he—and the special prosecutor–had not yet had time to read all of their investigation.

Certainly, Corey relied, probably heavily, on the unsupported and hyperbolic statements of Benjamin Crump, most specifically, his representation of the testimony of Dee Dee.  Unfortunately for Corey and Crump, Dee Dee is a perjurer, and the “evidence” she provided Bernie de La Rionda (hereinafter “BDLR”), outlined in Update 11.  Not only did not implicate Zimmerman in any crime, she actually supported his account.  To make matters worse for the prosecution, Dee Dee, even ignoring her perjury, will be an absolutely terrible witness and will actually harm rather than help the prosecution’s case.

Consider too that The Narrative, the Scheme Team and all those supporting both have savaged the Sanford Police, calling them everything from incompetent to racist, and suggesting all manner of evil conspiracies against Trayvon Martin on their part.  Few, if any, Sanford officers will be kindly disposed to the prosecution in this case.  Indeed, one or two officers, perhaps former Detective, now late-shift patrol officer Christopher Serino (I explained the circumstances of his “reassignment” in Update 13) might, to one degree or another, be at least somewhat supportive of the narrative (though his own reports will contradict him), but the prosecution will still have to deal with Wolfinger who will have to testify why he did not find probable cause to charge Zimmerman with any crime.

I would not be in the least surprised if BDLR actually asks the court for permission to treat Wolfinger and the Sanford Police as hostile witnesses, which would be yet another astonishing plot twist in this second-rate Twilight Zone episode of a case.

So with Mark O’Mara requesting an evidentiary hearing on the evidence to be presented by audio experts, what are the issues about which he’ll be concerned?  

There are two primary “bodies” of audio “evidence” in this case.  George Zimmerman’s muttered comments during his call with the police dispatcher as he was watching Trayvon Martin, and the reports of two separate groups of “experts” in their analysis of someone screaming for help, recorded as background by the Sanford Police in at least one phone call of a potential witness.  Zimmerman has testified that the voice is his, calling repeatedly for help, help that never came.  Remember that the prosecution has no evidence to contradict this account.

One avenue BDLR may take is arguing that Zimmerman called Martin a “fucking coon.”  Unfortunately for BDLR, as I pointed out in Update 5, this issue has been completely debunked:

The allegation was that Zimmerman—during the 911 call–called Martin a “fucking coon.”  It was presented as prima facie evidence of Zimmerman’s racism.  CNN used the supposedly superior technology available only to a well-funded major television network and aired a segment by reporter Gary Tuchman that confirmed that Zimmerman called Martin a “fucking coon.”  As one might imagine, this did little to calm racial tensions.

In the meantime, J. Neil Schulman, using Roxio, an off-the-shelf, inexpensive program, produced an audio clip of the comment that clearly reveals the comment to be “fucking cold.”  The final “d” consonant is unmistakable.  To experience the difference for yourself, speak the words “cold,” and “coon.”  Notice the “d,” to be audible, must be clearly voiced and percussive, while the “n” of “coon” is stopped and quiet.  Take this link to hear Schulman’s audio clip. 

Tuchman was, some nine days later, forced to admit—though exceedingly grudgingly—that Schulman was right.  The word was “cold,” not “coon.”  Zimmerman was taking the weather to task, not Martin or anyone else.  Not that this might stop BDLR from trying to misrepresent the evidence.  Remember, please, that any attempt to paint Zimmerman as a racist will be contradicted by the FBI’s investigation that reportedly found no evidence of such racism, quite the opposite.

The other issue is: who was screaming for help?  Remember that the audio was taped over a phone and from a distance.  Remember too that under the effects of adrenaline, even burly men with basso profundo voices can easily see their voices rise several octaves in pitch, making them sound like excitable little girls. I’ve seen, and heard, this on innumerable occasions.  In this case, every “expert” dealing with the source material has admitted that it is of very poor quality.  In addition, they had no examples of Trayvon Martin’s voice with which to compare the source material, making it practically impossible to know if the voice belonged to either man.

As I noted in Update 5:

The Orlando Sentinel and CNN engaged Tom Owen and Ed Primeau, independent audio “experts” to try to determine who was screaming for help.  I recommend you review Update 5 in its entirety, but to summarize, Primeau said:

“There’s a huge chance this is not Zimmeman’s voice.  After 28 years of doing this, I would put my reputation on the line and say this is not George Zimmerman screaming.”  Owen came to the same unsupported conclusion.

CNN soft-pedaled the facts, which are that Owen and Primeau did not have adequate voice samples from Zimmerman—and none at all from Martin—from which to make comparisons.   In fact, Owen used proprietary software—his own which he is marketing for around $5000 a copy—and which is not accepted in court in the United States.  Consider:

Using it, he found a 48% likelihood the voice is Zimmerman’s. At least 60% is necessary to feel confident that two samples are from the same source, he told CNN on Monday — meaning it’s unlikely it was Zimmerman who can be heard yelling.

So it’s 48% likely to be Zimmerman, but 60% is required to “feel confident.”  Notice how CNN handled the fact that because they have no samples for Martin, they can’t do any comparison.  They ignored it and said it’s “unlikely” it was Zimmerman.  CNN saved the most important quote for last:

The experts, both of whom said they have testified in cases involving audio analysis, stressed that they cannot say who was screaming [emphasis mine].

They ‘cannot say who was screaming,’ yet CNN wrote the article in such a way as to give the impression that it was not Zimmerman.  Notice that they did not say it was Martin.  Perhaps Roxio would have been helpful here as well.  The fact remains that without many substantial and highly specific samples, no audio examiner can deliver a reliable opinion on such things.  This article by an ABC affiliate illustrates that point.  And this post on Macsmind makes the same point.

The FBI’s examination of the same evidence produced the same results, with the exception that the FBI honestly reported them, as I reported in Update 7

To put it as simply as possible, the FBI struck out.  They cannot say whose voice is crying out for help.  The sample provided them is of poor quality and while they don’t specifically say this, I suspect that they, just like the civilian examiners, don’t have the proper number and kind of voice samples of Zimmerman and Martin with which to make a competent comparison even if the 911 call were of sufficient quality.  The FBI will be able to testify only that they don’t know who is screaming for help. 

BDLR will surely want to use these expert witnesses to deliver unsupportable opinions not based on science but on “gut feelings.”  Ignore the fact that Owen’s software is not accepted as reliable in US courts, these guys are experts!  In other words, BDLR wants to throw up as much of a smoke screen as possible.  It is he that seeks to create reasonable doubt about his own evidence, the evidence gathered and prepared by the primary investigating agency!

O’Mara will argue that the witnesses be allowed to testify only to the results obtained through reliable and accepted means: none of them can say who was screaming.  He will argue that they not be allowed to testify to unsupportable opinions, which can have no other effect than to unfairly prejudice a jury against Zimmerman.  He will particularly argue against allowing Owen to testify at all because his testimony is based on unproven technology not recognized as sufficiently reliable to be used in court.  This is an inherently reasonable and legally well-grounded argument, which may mean little or nothing in Judge Nelson’s court.

But aren’t these men experts?  Aren’t they allowed to deliver expert opinions?  They are, but only when those opinions are the result of the application of scientifically accepted and recognized methods.  To do otherwise in this case would be like a fingerprint examiner saying: “well, it’s true that I don’t have any actual fingerprints from the accused to compare to the latent prints found at the crime scene, but because I’ve been doing this a long time, and because I glanced at the accused’s hands when I walked past him just now–and by the way, I’m selling software about my method of how to do that–I’d stake my reputation that those are his fingerprints.”  It doesn’t matter how many degrees a witness has or how long they’ve been pursuing their discipline.  If they are not professionally applying the methods and technologies recognized by the courts as the standard in their discipline, they are guessing as much as the layman.

The only rational, lawful course would be to allow only one bit of testimony from these witnesses:  the fact that they can’t say who was screaming.  Of course, if that’s all they can say, what’s the point?  This leaves Zimmerman’s account as the only, and the definitive, account of the attack.  I somehow suspect Judge Nelson will be neither rational nor lawful.

Readers may also want to visit Legal Insurrection where Cornell Law Professor William A. Jacobson points out that the accepted standard is multiple similar voice exemplars.

Just One Minute also has a solid discussion of the related issues, as does Jeralyn Merritt at Talk Left.

ONE ADDITIONAL ISSUE:

As the trial draws near, an issue I did my best to clarify in Update 4 continues to be raised.  For some, it’s merely another smoke screen, a way to obscure the facts.  Others probably don’t understand reality.  I refer to another essential part of the narrative that goes something like:  “Trayvon Martin never touched Zimmerman, and if he did Zimmerman deserved it because he “profiled” Martin, and besides, Zimmerman didn’t get hurt at all, and even if he did, Zimmerman wasn’t justified in using the force he did.”  I wrote:

People are severely and permanently injured or beaten to death by people employing only their hands and feet each and every day…

One viciously assaulted without provocation may well be justified in drawing a knife or firearm and brandishing it to stop the assault.  They need not wait until they are so seriously injured they are milliseconds from passing out to do so.  If they have time, and if the assailant will not stop, they may surely use it to stop the assault.  This is particularly true of female victims attacked by men.

The point is there is a great difference between someone who shoves you to the ground or strikes you a single blow and does little or nothing more and someone–or a gang–who continues to brutally attack you.  The former might require nothing more than a later call to the police.  The latter might require immediate action necessary to preserve life.  It is always a good idea to be aware of the specific laws of your state on this and other matters.

Hollywood has done us a great disservice in this and a great many other ways.  Watching movies, entire generations of Americans have romanticized violent confrontations.  After watching countless battles where characters punched and kicked each other relentlessly for many minutes, they have developed the idea that they too may engage in such behavior.  They fail to realize that what they are seeing is not fighting, but fight choreography, a carefully timed and filmed dance between experienced actors and stunt men and women, meticulously designed to give the impression of powerful blows given and endured.  Stage blood is not real blood, the result of lacerated skin and ruptured organs and blood vessels.  Reality is very different. Most fights quickly end up on the ground, in the dirt and blood.  Human beings simply can’t take the kinds of repeated blows action heroes absorb and dish out without serious, immediate and long-lasting consequences.

The human body is at once amazingly resilient and terribly fragile.  I have seen people take unbelievable punishment in car accidents and assaults and suffer no long-term ill effects.  I have also seen people sustain single blows in assaults or minor car accidents that have crippled them, left them paralyzed, destroyed their intellects leaving them near-vegetables, or even killed them. When under brutal and continued assault, how do you tell what the likely outcome will be?  Will you merely suffer painful but rapidly healing injuries, or will you be disfigured, crippled or worse?

Being struck forcibly in the face or head is a stunning, intensely painful experience.  The eyes, soft tissues and bones of the face are particularly vulnerable to serious, disfiguring, even crippling damage.  A blow to the nose sufficient to break it is unbelievably painful and stunning.  In many cases, it directly interferes with vision and thinking, leaving a victim unable to understand what is happening to them (so much for running away) and unable to protect themself for some time.

In the same way, being struck forcefully anywhere in the head—even if the skull is not fractured–can cause short term brain damage—that’s what a concussion is—or permanent damage.  Saying: “Oh, it’s only a mild concussion,” indicates a lack of understanding of medicine.  Concussions can be deadly.  I’ve known victims of assaults—including fellow police officers—who suffered head injuries and literally couldn’t think straight—couldn’t function normally–for days, in some cases, weeks.  They were all fortunate to make full recoveries; many do not.

In the last year, one of my brightest students suffered a mild concussion in a basketball game.  For the next month, it was as though her IQ suddenly dropped 20 points.  She instantly went from an A+ student to a C- student, though her personality remained essentially intact.  Her athletic abilities were also noticeably affected.  She looked the same, but those who knew her realized her injury made her a very different, lesser, person.  Fortunately, she fully recovered.

One may certainly suffer serious, permanent, even fatal damage from being struck in a wide variety of places on the body.  I’ll not bother to mention them for obvious reasons.  While I am a large, strong man, and while I have experience and training in a variety of martial disciplines, as well as experience in physical confrontations, I have always gone out of my way to avoid such things.  Despite my abilities, I am no longer as young as I once was.  I get older every day while criminals tend to always be in their teens and early 20s.  And while my reflexes and abilities are still superior to a substantial portion of the population, they’re certainly not what they were in my 20s and 30′s, or even my 40′s, for that matter.  I’d be a fool to try to employ only empty-handed defense against a younger attacker or attackers.  I might prevail, but I would almost certainly sustain real damage in the battle.  I’m no longer willing to do that unless it’s absolutely necessary to protect my life or the life of another.  Violent physical confrontations are not a game, contest or a measure of testosterone.

Those interested in exploring this and similar issues in greater depth might want to review my seven part series on the rationale for gun ownership.  The first article in that [recently updated] series is available here.  The rest are available in the SMM firearms archive.

The facts, which the prosecution cannot dispute, are that Zimmerman suffered a broken nose and multiple injuries to his face and head, injuries seen and recorded by multiple witnesses immediately after the attack, entirely consistent with his account of the attack.  There is every reason–including eye witnesses–to believe his account, and no evidence to prove otherwise.  This means that Zimmerman was knocked, stunned, to the ground by an unexpected punch to his nose.  He was immediately pursued and mounted by Martin, who repeatedly slammed his head into a concrete sidewalk, and repeatedly punched him.

This attack could easily have resulted in Zimmerman’s death.  Being struck in the head even once can be deadly.  Consider the case of Ricardo Portillo, a 46 year old volunteer soccer referee punched once in the head by a 17 year old soccer player who took offense when Portillo issued him a yellow card.  Portillo collapsed shortly thereafter and died, in a coma, about a week later.

Consider that Zimmerman had his head repeatedly slammed into a sidewalk.  This is more than the equivalent of being repeatedly struck in the head with a large rock, except a sidewalk is more massive, therefore arguably capable of producing greater injury.  A 17 year old is more than strong enough to kill, particularly when his victim is not expecting an assault and is, as was the case with Zimmerman, roughly the same size.

Was Zimmerman in an encounter where the use of deadly force was justified?  Without question.  He is being prosecuted today because of the (hopefully) temporary political dynamics of Florida and the nation.  That does not, however, mean we need lose track of reality.

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