Since my first two articles on the Trayvon Martin case (available in the SMM Trayvon Martin Case archive), the most momentous development has been the bond hearing. I will not go into detail on every aspect of that hearing as it has received blanket coverage elsewhere. Among the most competent voices covering this hearing (and the rest of the Martin case) are Just One Minute and my former Confederate Yankee (now closed to all but archival access) co-blogger, Bob Owens. By all means, take a moment to take the links and review their work on the hearing. I’ll focus instead on the testimony of the hearing and what it reveals, particularly about the prosecution’s case and the competence of its team.
On April 20, 2012, A bond hearing was held for George Zimmerman. Bond was set at $150,000 dollars. In our criminal justice system, it is presumed that bond will be granted for most defendants. It is denied, or set so high as to make release unlikely, only in the most serious cases—like murder—and only where the defendant (the accused) is a substantial flight risk. That Zimmerman was granted bail is unusual. That it was so relatively low is doubly unusual. Murder suspects rarely get bond. That Zimmerman was granted bond unmistakably indicates that the judge did not consider him to be a flight risk and that he was unimpressed by the evidence presented at the hearing. He had good reason to be unimpressed.
Bond hearings are usually quick and unremarkable. The prosecution presents evidence—which is almost always convincing—that it has a solid case. In this case, the transcript of the hearing reinforces my concerns from my last update: The Trayvon Martin Case, Update 2: The Prosecutor and the Affidavit. Those interested in the transcript should take the link to the CNN “rush” transcript of the case which is interrupted from time to time by commercial breaks. I’ll mention only the most telling points, and those most damaging to the prosecution:
The hearing, which was much longer and more revealing of the prosecution’s case than the overwhelming majority of such hearings, was remarkable in many ways. Among the most interesting was the performance of Zimmerman’s attorney, Mark O’Mara. O’Mara revealed himself to be a highly confident and competent lawyer, a man who knew the case forward and backward. On the other hand, the prosecution, represented by Bernardo De La Rionda, appeared to be unprepared neophytes.
* O’Mara established that Dale Gilbreath, one of the two special prosecutor’s investigators on the case, brought no materials—other than a copy of the affidavit—to the hearing. He was utterly unprepared to testify.
* Gilbreath continually dodged and weaved rather than directly answering O’Mara’s questions. He was utterly unable—or unwilling—to tell the court who put certain phrases in quotations in the affidavit or why. This is never a good sign when done by a police officer/prosecution witness.
* Gilbreath testified that he had no idea who put the word “profiled” in the affidavit, despite also testifying that only he and his fellow investigator T.C. Osteen wrote the affidavit, which he called a “collaborative document,” which was reviewed by “…our supervisor. There were several mistakes in it. They were corrected.” He also avoided defining the term.
* 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.
* De La Rionda’s examination of Gilbreath amounted to nothing more than having Gilbreath reaffirm the assertions in the affidavit.
* 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.
O’MARA: Have you ever had your nose fractured or broken.
O’MARA: You know that that was an injury that Mr. Zimmerman sustained, correct?
GILBREATH: I know that that is an injury that is reported to have sustained. I haven’t seen any medical records to indicate that.
O’MARA: Have you asked him for them?
GILBREATH: Have I asked him for them? No.
O’MARA: Do you want a copy of them?
O’MARA: I’ll give them to the state. It’s a more appropriate way to do it. If you haven’t had them yet, I don’t want to cross you [ask questions about] on them. Nothing further, thank you, your honor.
It is obvious that the prosecution was completely unprepared for the hearing, apparently believing that their affidavit would be prima facie evidence of Zimmerman’s guilt and that no bond would be granted. If this was their belief, it indicates not only a lack of experience, but a jaw-dropping lack of preparation and competence. In any case, and particularly in a murder case, no prosecutor should set foot in a courtroom without being absolutely prepared for every eventuality. Mr. O’Mara badly embarrassed them merely by being well prepared and competent.
Gilbreath’s performance was inexplicable. Any competent police officer must be careful about how he answers the questions of defense lawyers. They will inevitably try to twist things to favor their clients. However, in this case, Gilbreath was trying to avoid admitting facts, facts that do not support his case. This makes any police officer look like a partisan rather than an impartial professional whose only concern is for the truth and justice.
Gilbreath’s admission that he has no evidence to contradict the most essential elements of Zimmerman’s defense—that Zimmerman was walking back to his truck before Martin assaulted him; that Martin assaulted Zimmerman; and that Martin injured Zimmerman, beating his head against concrete—is actually shocking. Even more disturbing is his admission that he had never seen—or requested(!?)—Zimmerman’s medical records.
Why is all of this so disturbing? Consider who Gilbreath is. He is one of two supposedly experienced homicide investigators appointed by the State of Florida to examine the evidence gathered by the Sanford Police Department—and to gather additional evidence on his own—and to assist in making a charging decision. He is supposed to be one of two experts, one of two unimpeachable professionals capable of discovering what the Sanford Police might have missed, what they lacked experience to understand. Yet, he is on the record in this hearing—a hearing prior to the preliminary hearing—admitting to rookie mistakes, to being unprepared, even incompetent. Unquenchable curiosity is one of the most important traits of any competent investigator. Wasn’t Gailbreath the least curious about Zimmerman’s medical reports, a vital element of the case? Wasn’t he aware of Zimmerman’s willingness to fully cooperate with the police? About which other elements of the case does he have a similar lack of curiosity?
That an investigator in his position, handling a case so politically charged, had no more evidence than the Sanford Police, and in fact had less for he didn’t bother to inform himself about the medical evidence relating to Zimmerman’s injuries before writing–or collaborating on–an incredibly inadequate affidavit, is virtually a death knell for the prosecution’s case. One of the prosecution’s primary witnesses has revealed himself to be incurious, perhaps even incompetent before ever testifying before a jury.
Gilbreath tried to excuse his lack of knowledge by claiming that he and Osteen handled different tasks, but this is nonsense. Two investigators working what is not a difficult case—working any case–should absolutely be aware of each and every scrap of evidence. They must read each other’s reports and speak with each other about everything they have learned, about every remaining unanswered question. They should discuss every possibility. They should know every aspect of the case intimately. While Gilbreath would testify to interviews he did by himself, or to evidence he gathered alone, there is no excuse—absolutely none—for him to be unaware of any aspect of the case. This would be necessary if for no other reason than to keep from being surprised and made to appear a fool by the defense.
O’Mara made a fool of him, and of the prosecution and its case, by kindly offering to provide a copy of Zimmerman’s medical report to them. A report they should have, should know inside and out, and should be providing to the defense through discovery. Gilbreath was so utterly out-maneuvered that he had no choice but to lamely admit that he would like to have the report provided by O’Mara, the report he admitted he never sought. This, and his overall demeanor and performance on the witness stand in this hearing reveals him to be a poor witness for the prosecution. If the special prosecutor, Ms. Corey, has any professional competence, she should be very, very worried after this hearing.
Mr. O’Mara has certainly earned his pay. He has, professionally and with calm, polite ethical demeanor, asked the questions necessary to establish that the prosecution team made a charging decision without knowing even the most basic facts of the case necessary to consider any charges, to say nothing of second degree murder. He has also locked the prosecution’s case. Any future attempt to try to assert evidence that contradicts Zimmerman’s account—and Gilbreath’s testimony–is now easily impeached by the testimony of one of the prosecution’s most important witnesses. Amazing.
NEXT LEGAL STEPS:
The next steps in the legal process will be pre-trial motions and the preliminary hearing. In such cases, the defense will always make a motion for dismissal of the case on the allegation that the prosecution has failed to meet its burden of proof. They do this not only to cover all of their bases, but to build a record for appeal, if necessary. The defense usually doesn’t expect the judge to grant their motion, but they make it anyway. In this case, the defense has an unusual and extraordinarily strong case to make for dismissal, however, it will almost certainly be denied.
Those who have read my first two articles, particularly Update 2, which deconstructed the charging affidavit, know that the case of the defense for dismissal is strong indeed. The affidavit does not prove the three essential elements of the Florida second degree murder statute. This alone should be sufficient grounds for dismissal of the charge, but amazingly, that’s not all. The bond hearing has provided incontrovertible evidence that Zimmerman’s self-defense claim is not only strong, but that the prosecution has no evidence to refute it! For those experienced in such matters, this is mind boggling. In this case, it would be entirely reasonable for the defense to ask for dismissal with prejudice.
A case dismissed with prejudice is over. It may not be refiled; the prosecutor took her shot and missed, game over. Cases are usually dismissed with prejudice only when a judge believes that the behavior of the prosecution was so outrageous–its case so weak–as to amount to an unethical attempt to harass or harm innocents. Arguably, the judge could reasonably come to that opinion in this case. However, because of the media circus surrounding the case, because of the political firestorm whipped up, because of the racial and racist tensions awakened by various race hustlers, race bigots, and fueled by the Attorney General of the United States and the President of the United States, it is unlikely that any judge would dismiss the case, and highly unlikely that it would be done with prejudice.
Considering the virtual certainty of violence, rioting and societal and racial upheaval inherent in this case, no judge will dismiss the case. Most would feel that they have no choice but to let it go to trial.
If this comes to pass it will be a perversion of our system of justice and of the independence of the judiciary. Judges must be able, without social or political pressure, to make decisions that will displease people. However, judges are human, and the stakes in this unremarkable case are themselves remarkable. Any judge ruling on motions will understand that any outcome other than a life sentence for Zimmerman will be met with severe social consequences, probably even deadly violence. Yet they will know that absent a trial, those consequences will likely occur anyway. Better to let the system take its course in the hope that over time, passions will cool to at least some degree. So the case will likely go, at least, to the preliminary hearing, and probably beyond to trial.
Other common pre-trial motions involve the defense trying to exclude evidence that would be harmful to their client. In this case, it’s hard to imagine what that might be. We now know that Zimmerman voluntarily cooperated with the police, not only giving them statements–without the presence of counsel–within 90 minutes of the shooting, but returning with them to the scene the next day where they videotaped his reenactment of the incident. As is well established, after examining all evidence, the Sanford Police found no basis for charges. It was only after the political firestorm whipped up by the media and the gasoline poured on that storm by Mr. Obama that the state of Florida and the Federal DOJ became involved.
In short, Mr. O’Mara would have little about which to object, for his client’s self-defense claim depends upon the evidence given by Zimmerman and compiled by the Sanford Police who are more and more looking like the only competent people involved in this case.
That said, there will almost certainly be a change of venue motion. Passions have been so inflamed by the initially false statements of the media, and their continuing falsehoods despite knowing their statements to be false, that a change of venue is almost certain to be granted. On the other hand, O’Mara might try a bit of legal ju-jitsu by saying that he trusts the people of Sanford to be fair. In so doing, he might convince a jury to be just that. However, this would be a potentially risky maneuver, and would probably eliminate that issue on appeal if Zimmerman were convicted.
The problem with change of venue is: where? The President of the United States, Barack Obama, said: “If I had a son, he’d look like Trayvon.” The First Lady of the United States, Michelle Obama, said: “…there’s been a tremendous loss. And we all have to rally around that piece of it” [Rally how, exactly, Mrs. Obama?]. The outcry raised by these comments caused White House Press Secretary Jay Carney, on April 11, 2012, to try to walk things back and to say that the White House would shut up: “I certainly don’t think you’ll hear from him,” and “He and I and others will refrain from commenting on it.”
While one can easily ignore the blathering of race hustlers like Al Sharpton and Jesse Jackson, it is not so easy to ignore the unwise, intemperate and racially charged pronouncements of the President and the First Lady. However, this at once lends gravity to a change of venue motion and simultaneously complicates it. When the POTUS and FLOTUS poison the national jury pool, where might a change of venue take the trial? What’s left? At the very least, Mr. Obama has—apart from further dividing Americans and damaging racial relations–handed the defense an extraordinary and extraordinarily powerful appeal issue in case of conviction.
The preliminary hearing will be interesting indeed. For those unfamiliar with the criminal justice system, preliminary hearings are held for all serious charges—commonly felonies—and for good reason. They allow an extra layer of review. The focus of a prelim is whether there is probable cause to support a full-blown trial. If the judge finds insufficient probable cause, he may dismiss the case, potentially with prejudice. Preliminary hearings are not complete trials, and judges work to ensure this, but at least a Reader’s Digest version of the prosecutor’s case must be presented–sufficient to prove the elements of the offense to the standard of probable cause–giving the defense a first crack at it. Defense witnesses rarely testify in preliminary hearings, and the defendant, virtually never.
Preliminary hearings in most felonies are not a foregone conclusion. Plea bargains settle most run-of-the-mill, non-violent crimes, though some defense attorneys like to have preliminary hearings because it gives them a chance to see if there is any evidence that didn’t make it into police reports and to assess the strength of prosecution witnesses. For many defense attorneys, there is no downside to having a preliminary. They might pick up at least some useful information, and they might even get lucky and watch a prosecutor’s case fall apart before his eyes. However, in most cases, the defense will waive the preliminary hearing and a plea bargain will ultimately dispose of the case.
In more serious cases, like the Zimmerman case, there will certainly be a preliminary hearing. The defense will not only be looking for evidence not present in police documents and prosecution filings, but will have a chance to question prosecution witnesses and assess their strengths and weaknesses. Good defense attorneys also know that if prosecution witnesses look weak, this can have a real effect on prosecutors and the judge. It is also a chance for the defense to cement prosecution testimony in stone, to lock them into the testimony given during the preliminary hearing. If the prosecution has a solid case, this is not a problem, for facts and legitimate evidence don’t change from hearing to hearing, but as has been amply demonstrated, the prosecution’s case is appearing to be anything but solid.
The preliminary hearing is also another chance for the defense to move for dismissal. And unless the prosecution does a far, far better job than it did in the bond hearing, unless it can present heretofore unknown and convincing evidence that fulfills the elements of the statute, dismissal would be a real possibility—in any normal case. As I’ve noted, the political realities of this case would tend to make dismissal unlikely, not impossible, but certainly unlikely. The case will probably go to trial.
Polygraphs and Voice Stress Analyzers:
One bit of evidence that will not be presented in any hearing or trial is the voice stress examination Zimmerman underwent, and passed, during the initial investigation phase conducted by the Sanford Police. However, the results of that test, even the fact that it was given, will not be allowed at trial. Why not? Zimmerman’s attorney would surely like that to be introduced as evidence.
Polygraphs and VSA’s, commonly known as “lie detectors,” are not allowed as evidence in criminal proceedings. Polygraphs are devices that monitor and record changes in blood pressure, respiration and pulse rate in response to questions posed by an examiner. The public has been badly misinformed by TV and the movies in their depictions of polygraph examinations. Questions must be simple, direct and confined to yes or no answers. Examiners must first establish a response baseline for each individual by asking them questions that the person being examined agrees—in advance–are true and false. By observing the machine’s readout in response to those questions, an examiner can claim to know what the truth and a lie look like for each individual. The examiner will also inform the person beforehand of the significant questions that will be asked. There are no dramatic, unexpected questions and anguished, tearful confessions. When the examination has been completed, the examiner interprets the readings and renders an opinion. They will carefully parse their statements, saying things like “the answers to questions 1-5 are consistent with deception,” or “the answer to question 23 is consistent with truthfulness.”
VSA devices measure microtremors or changes in voice patterns and frequency that are thought to indicate stresses, which are thought to reveal deception. The same preliminary and testing procedures observed by polygraph examiners are applied with this technology too. In fact, there is even an iPhone VSA app, though it is listed in the entertainment category. Following an examination, the VSA examiner, as with the polygraph, interprets the readings and renders an opinion in the same careful language.
No one may be forced to take a polygraph or VSA against their will (this would violate the Fifth Amendment’s protection against self-incrimination), but such devices may be used outside the courts for virtually any other purpose. Police officers, for example, are always polygraphed as part of their pre-employment application process. Those applying for many government jobs, and always those having to do with security clearances, are polygraphed, usually repeatedly throughout their careers. Due to my work in the military and civilian law enforcement, I have been polygraphed many times and taken several VSA examinations as well (yes, I passed them all).
Polygraph and VSA examiners will attest to their absolute accuracy, but the courts are right in not allowing them. How can any machine detect and reveal truth or falsehood, abstractions of the human imagination, flickering nerve transmissions in the brain? We all know that there are degrees to lies, and that some lies are not only wise but kind. Such things are not absolute, yet “lie detector” supporters would try to convince us that they are.
Because both technologies merely monitor and record what might be stress responses, their results, to be valid, must be utterly isolated. In other words, the stresses they record must be the result only of truthfulness or deception and nothing else. Of course, this is impossible. People are infinitely complex and might feel stress unexpectedly brought up by memory, associations provoked by questions, temperature, humidity, barometric pressure, the situation in which they find themselves, and a wide variety of other factors. The readout that for one person might indicate a lie, for another indicates nothing more than discomfort. It’s important to remember that the readouts are not themselves black and white. One examiner might interpret a “grey” response as a lie and another, the truth. Polygraph and VSA examiners love to claim that their technology is unbeatable, and of course, they–and the police–have a vested interest in maintaining that belief in the public.
Competent, professional investigators know that the primary value of this technology is in maneuvering criminals into confessions. Still, they also know that in any case, there are some things they can never know with absolute certainty—and they hate uncertainty. Good investigators like to know; they like certainty. They like to be able to wrap up each investigation in a complete, neat and unassailable package with every detail properly categorized and every duck in its proper row. They dislike any doubt, any unknown. If they are truly professionals, they don’t want to charge innocent people with crimes they didn’t commit. Or at the very least, having a polygraph or VSA confirm what they already believe can help them sleep a little more easily. No doubt the Sanford police slept well after the VSA confirmed what their investigation revealed. However, all police officers know that the technology is nothing more than an investigative tool. The danger is that they, and their supervisors, can come to rely upon it rather than spending the time and effort necessary to properly do their jobs, time and effort that can be rather tedious and that will almost always leave some things uncertain.
The prosecution in this case has continued the pattern established by the affidavit, a document Mr. Gailbreath was exceedingly reluctant to claim as his own as he dodged and weaved his way through what must have been—for him—a very uncomfortable hearing. The information currently available to the public leads to one inescapable conclusion: the prosecution does not have sufficient evidence to sustain a charge of second degree murder. They may not have sufficient evidence to sustain any charge under Florida law.
Their reasons for making a charge Ms. Corey can’t possibly hope to sustain are the subject of reasonable speculation. They include (but may not be limited to):
(1) Ms. Corey truly believes the evidence supports the charge. However, we now know that even one of her investigators knows that there is no evidence to contradict Zimmerman’s account. If his account stands, charges cannot.
(2) Ms. Corey is making decisions based not on what the law and justice allow but on what she believes the law and justice should allow.
(3) Ms. Corey’s decision is cynically and foolishly political. If so, it is inherently unethical and potentially illegal.
(4) Ms. Corey is trying to right what she believes to be a societal wrong by offering up an appropriate sacrifice. If so, it is absolutely unethical and potentially illegal.
(5) Ms. Corey has made an honest error, but cannot back away from it without losing too much personal, professional and political face.
Some have begun to compare the Martin case to the Duke Lacrosse case, and it is a tempting comparison. For those interested, I can suggest no better source than the Durham In Wonderland blog by history professor KC Johnson whose blogging and book are surely the definitive work on that case. The link is an informative overall case narrative.
The true comparison is in the prosecutors, Mike Nifong in the Duke case and Angela Corey in the Martin case. Nifong used the Duke case to win—through shameless racial pandering–an election he might otherwise have lost, and Corey is also facing the voters in November. It appears that she may be running unopposed, but there is little doubt the Martin case could very well determine her electability, and that must surely be among her decision-making concerns. Nifong pursued a case any reasonable prosecutor would have known was wrong. He had definitive alibi and DNA evidence proving that the defendants were innocent, yet conspired to hide evidence, deny it to the defense, and persecuted young men he knew were innocent. He lied to the courts and committed perjury, and was disbarred, lost his pension, and was eventually convicted of criminal contempt for lying to the court.
While the Martin case has not progressed nearly as far as the Duke case, there are indeed parallels, parallels potentially very dangerous for Corey, for in the Martin case too there are very angry, loud, threatening and politically influential forces demanding the blood of the defendant. The Martin case—just as in the Duke case–has taken on racial and societal significance far beyond its significance in the criminal justice system. A large part of Nifong’s downfall was hubris, excessive pride. From the drama of the ancient Greeks to our time, excessive pride always precedes a fall. If Nifong simply admitted error, perhaps even overzealousness, and dismissed the charges, he would probably still be the prosecutor in Durham today, but his ego would not allow it. Will the same be true of Corey? We shall see.
I suspect that at least one team is enjoying some small degree of satisfaction at the moment: The Sanford Police Department. As I earlier mentioned, they appear–for the time being–to be the only competent investigators having anything to do with this case.
COMING IN THE NEXT UPDATE, THURSDAY, 04-26-12:
* The doctrine of self-defense.
* How TV and the Movies have given Americans very bizarre ideas about physical confrontations and how that will figure in this case.
* A map and analysis of the area.
* Analysis of the relative merits of the cases of the prosecution and the defense.