I’ll address some of the issues revolving around the first three days of trial, including the initial contribution of Witness 8, Rachel Jeantel, AKA Dee Dee, shortly, but first, a visit to a pre-trial motion that has the potential–by itself–to constitute reversible error should George Zimmerman be convicted. I speak of the Defendant’s Third Motion to Continue of 06-8-13.
As noted in the motion, there were four days before jury selection began, and the defense was in dire straits.
The motion begins with the many issues revolving around Dr. Reich, and Tom Owen is also later mentioned. As those issues have been resolved to the proper advantage of the defense (the case law was well settled and unremarkable), I’ll not spend additional time on them, but should appeal be necessary, they’ll have some bearing on the arguments.
The motion reads:
8. In addition, undersigned counsel has recently received information, as more specifically addressed in the Motion for Sanctions and Request for Judicial Inquiry, that the state has been in possession of certain exculpatory information, including but not limited to extraction reports from Trayvon Martin’s cell phone, which they have had for several months have failed to turn over to defense counsel until June 4, 2013.
As I noted in Update 31, Bernie de la Rionda, the primary assistant prosecutor, had this information as early as December, 2012/January, 2013 and withheld it approximately six months. The motion continues:
9. That undersigned counsel received, on June 4, 2013 a 3.5 gigabyte report from the state attorney’s officer which was produced by Steve Brenton, purportedly on May 24, 2013. This report is approximately 1000 pages and while some of the information has been previously produced, there are significant differences in this information and previous information such that significant additional time will be required to analyze the information, to absorb it, to get an expert to review it and to be able to competently respond to it. This report further documents that the state had failed to give information, which was readily available to the state as early as approximately January, 2013. This issue is being addressed by a contemporaneous motion for sanctions but is a significant portion of the need for a delay in this trial…
11. That defense counsel have been attempting to set the deposition of another state witness, a recently disclosed medical examiner (though not the medical examiner who performed the autopsy) and have tried to do so with five written attempts. To date the state has not coordinated setting the deposition of that witness, or the depositions of investigator witnesses from the state attorney’s office who are significant witnesses, not only to the issues addressed in the motion for sanctions, but also as substantive fact witnesses…
14. In addition, the Fifth District Court of Appeals has allowed for the deposition of Benjamin Crump to be taken by the undersigned and additional time is necessary to prepare for and attend the deposition, and to have time to address whatever discovery is distilled from that deposition. It is anticipated that additional discovery will be needed based on the information gleaned from that deposition. Further, counsel for Mr. Crump has requested that the deposition be taken when the Court is available to rule on objections that arise during the examination.
15. It is impossible to properly attend to jury selection in this case while discovery is still ongoing, as there may well be issues raised or uncovered in the yet to be completed discovery.
As many readers may know, Judge Debra Nelson denied this motion for a continuance.
The issues raised in the motion will likewise be familiar to many readers, particularly the repeated and egregious refusal of the prosecution to meet its obligations to provide exculpatory evidence to the defense, as well as its tendency to do so only at the last moment, when it had no other choice. By failing to hand over evidence in its possession, for as much as six months until four days before jury selection, particularly 3.5 gigabytes of text and photographic data, the prosecution has made its intentions clear: they wish to deny Zimmerman a fair trial by making it impossible for the defense to assess and use all of the available evidence.
It is not unusual for lawyers, particularly defense lawyers, to make frivolous motions for continuance. In such cases, judges are surely justified in denying the continuances. The differences in those cases and this, however, are vast. In the Zimmerman case, not only has the prosecution slow rolled and refused to hand over exculpatory evidence, they have done it repeatedly, while repeatedly lying to the court about that evidence.
Despite filing multiple requests for sanctions against the prosecution, a prosecution that has actually admitted the substance of those accusations, as in Update 27 where de la Rionda lamely claimed that he simply forgot to tell the defense about a very important matter:
He then admitted–on the record–that he did not, in fact, tell the defense about Dee Dee’s lies, but he helpfully explained:
‘I forgot about it.’
He forgot about it. He forgot about his most important witness committing perjury, perjury that he, through his utterly incompetent placement of the victim’s mother right next to Dee Dee (to say nothing about the pack of lawyers, family members, and who knows who else present) may have had a hand in producing. He forgot about a matter that very well may torpedo his case. Telling the defense about that matter, despite being specifically asked about it by the defense in person, by e-mail and phone on multiple occasions over many months, just slipped his mind. It eluded him until mere hours before he would be forced to admit it in court. Only then did he “remember” the matter.
He finished with again implying that because he had actually lived up to his obligation to provide some discovery, he couldn’t be culpable for knowingly or negligently refusing to provide other discovery.
Judge Nelson has compounded the damage to the defense by refusing to so much as rule on sanctions until after the trial is over. True, she has told de la Rionda, on several occasions, to play nicely and turn over all discovery, which he has falsely claimed to have already done. After those milquetoast admonitions, BDLR continued to withhold discovery, such as his last minute notification of an additional medical examiner, another transparent ploy to disadvantage the defense.
It was also Judge Nelson who, in denying the defense a previously promised and scheduled deposition of Benjamin Crump for many months, ran out the clock. It was only the intervention of the Court of Appeals overruling Nelson and ordering a deposition of Crump that made a deposition that should have been granted as a matter of routine business possible. Even as the trial is three days in progress, there is no indication that a deposition of Crump has been done. As the defense notes, that deposition will surely required additional investigation, and likely, additional depositions.
The information contained in Martin’s phone data is particularly relevant and vital to understanding the facts and ultimate truth in this case. One would think that any judge would not only be very upset with the prosecution for sitting on this information for six months, but for dumping it on the defense at the last minute. One would also think that any judge would therefore be willing to grant a reasonable continuance, particularly because the circumstances demanding it were not the fault of the defense, but of the prosecution, and the judge. One would think incorrectly.
For her stubborn refusal to order discovery and follow through on those orders, for his denial of a deposition the law allowed, for her refusal to sanction the prosecution, for her refusal to punish the prosecution for lying to the court, for her refusal to grant a reasonable continuance, the necessity for which was caused in large part by her malfeasance, Judge Nelson has all but written reversible error into stone on that denied motion alone. And there is more, much, much more.
The Trial Thus Far:
As I have been laboring with summer school during the trial, helping to prepare kids for the upcoming summer high stakes tests, I have not been able to watch most of the proceedings live. For that, I urge you to visit William A. Jacobson’s Legal Insurrection blog, surely one of the finest law blogs on the Internet. Professor Jacobson has also been kind enough to give a bit of attention to this scruffy little blog.
Aiding Professor Jacobson is attorney Andrew Branca, the author of an important book on the law of self-defense. I recommend that you visit his fine posts on the trial as he has been following what I could not. You might wish to begin with his analysis of the opening statements.
I was able to catch some of these statements, and my impressions match Branca’s. Interestingly the State’s opening was delivered by John Guy, though de la Rionda and Corey were in the courtroom. I’m not sure if they’re smart enough to realize it was a good idea to have someone somewhat less obviously rabid deliver the opening, or whether they were merely trying to manipulate the all female jury by using a tall, good-looking lawyer from central casting. I don’t mean to disparage the appearance of anyone else, I merely make an obvious observation. Such things, believe it or not, are considered in trials.
What the State chose to tell the jury closely followed my previous predictions. Having no real evidence to support their case, they stuck very much with the narrative. The media pretended to be shocked when Guy spoke the few obscenities delivered by Zimmerman during his call to the Sanford Police. Of course, those obscenities were expressions of annoyance directed at the criminal vermin that had been plaguing the neighborhood for many months, not that Guy could be bothered with context. Guy also tried to make entirely reasonable and unremarkable matters seem to be somehow significant and evil, repeatedly stating that Zimmerman’s handgun was fully loaded, as every modern handgun is designed to be, and should be if employed as an instrument of self-defense.
The opening was 30 minutes of innuendo, emotion, and deception, with virtually no fact or evidence bearing on proving the essential elements of the offense. I suspect this emotional approach was an intentional attempt at manipulating the jury, which being all female, the State is obviously thinking will be swayed by emotional appeals. Branca ended thus:
“In summary, the State’s opening remarks seem to me to be a very weak effort, indeed.”
Branca noted that Donald West began with an odd knock knock joke that fell flat. Many commentators have latched onto this as evidence of the inevitable conviction of Zimmerman. Harvard Law Professor Alan Dershowitz went so far as to opine that it is grounds for a mistrial. On first glance, this might seem like a rare and out of character misstep for the steady, controlled and professional West. It may not be.
Sundance at The Conservative Treehouse suggests that the joke is a “cognitive reset” tool meant to so shock–or perhaps “redirect the thinking of” might be a better term–as to wipe out what they heard a short time before so that they could better accept what they were about to hear. This is indeed a venerable–though rather old–debating tool that goes by a variety of names. Like this old debate and speech teacher, West is old and experienced enough to know of it, perhaps to have used it to good effect in the past.
As to the idea of a mistrial, who would ask for one? Zimmerman? He’s actually the only person to really have standing to do so. I suspect that what happened is that the defense expected the prosecution to do something flashy and outrageous–thus the recitation of Zimmerman’s few, harmless, expressions of emotion–and West was prepared for it with the knock knock distractor. He’s surely a good enough lawyer to allow him self to take some flack if his tactic well serves his client. And will Zimmerman demand a mistrial? For what? Nullifying the prosecution’s cynical opening gambit?
As Branca notes in his excellent summary–and I do recommend you read it–West was masterful, not only presenting a comprehensive preview of the evidence, but countering the misleading contentions of the prosecution. There is no question that for each bit of innuendo provided by the prosecution, the defense is prepared to present fact and evidence.
Branca also summarized the testimony of the state’s first four witnesses: Chad Joseph, who is the son of Trayvon’s father’s girlfriend; Andrew Gaugh, the 7-11 employee that sold items to Martin, Police Dispatcher Sean Noffke, and Ramona Rumph, Custodian of Records of 911 and other types of calls.
These witnesses were, for the most part, unremarkable. Regarding Noffke’s testimony, Branca wrote:
The State first stepped Noffke through the logistics of taking and characterizing a non-emergency or 911 call. They also sought to suggest that Zimmerman’s leaving the car was not in response to the dispatcher’s question, “Which way is he running,” but rather that both happened simultaneously. This is a difficult point to make, however, when one is simultaneously playing the audio tape in which the events are clearly sequential.
The State also asked Noffke why he didn’t simply order Zimmerman not to follow Martin–giving the lie, by the way, to the enduring myth that Zimmerman followed Martin contrary to police orders–and Noffke answered that it was against policy because it could make them liable for the consequences.
The State soon got to their primary point of discussion, however–Zimmerman’s cursing on the audio about how “those assholes always get away,” and “fucking punks.”. The State very much needs Zimmerman’s cursing to be seen as an indicia of hatred or evil intent if they have any hope of getting even in the vicinity of second degree murder…
Finally, the State sought to suggest that the fact that Zimmerman mentioned Martin’s race twice might indicate some racial motivation for his conduct towards Martin.
Branca also illustrated O’Mara’s very capable cross-examination:
O’Mara once again excelled on cross examination. He stepped Noffke through the audio recording bit by bit, just as the State had done. He asked Noffke if he had been trained to assess a person’s demeanor and state of mind over the phone–were they angry, intoxicated?–and he answered that he was. Periodically, including at the points where Zimmerman curses, O’Mara stops the audio and asks Noffke for his professional assessment.
O’Mara: ‘Do you hear any anger in that voice?’
Noffke: ‘No, sir.’
More audio . . . stopped.
O’Mara: ‘Has the caller evidenced any anger or animosity yet?’
Noffke: ‘No, sir.’
More audio . . . Zimmerman saying, ‘These assholes, they always get away.’ Stops the tape.
O’Mara: ‘Any anger in that comment?’
Noffke: ‘It sounded calm to me.’
Finally at the end of the tape, O’Mara asks: ‘Do you have any concern in how Zimmerman presented to you?’
Noffke: ‘No, sir.’
‘In any of the words he said?’
Remember that any Sanford Police personnel know that the prosecution is using them and trying to get them to essentially say that the decisions of the Sanford Police and local prosecutor in refusing to charge Zimmerman were wrong. So on one hand, the prosecutors must pretend to be the friends and allies of the Sanford Police and try to use their evidence to suggest what it clearly does not suggest, while actually lying about the meaning and implications of that evidence. Sanford personnel will act professionally, but none of them–with the possible exception of demoted detective Serino–will be likely to willingly fudge matters to assist the prosecutor.
On the issue of race:
On the issue of Zimmerman having mentioned Martin’s race twice (the first time in direct response to Noffke’s query on the issue), O’Mara asked,
‘When you asked him race, and he said ‘He looks black,’ did that seem definitive to you?”
Noffke: ‘No, sir.’
O’Mara: ‘And when he got a better look, when Martin was approaching his car with his hands tucked in his waistband, did it seem to you that he was just confirming the race?’
Noffke: ‘Yes, sir.’ O’Mara:
‘Did it seem he was saying black twice because there was some racial overtones?’
Noffke: ‘No, sir.’
And this was a prosecution witness.
Regarding Ms. Rumph, it appears that the prosecution wants to play some number of non-emergency tapes of Zimmerman calling the Sanford Police about suspicious people, open garage doors and similar neighborhood matters. Judge Nelson has ruled that these tapes will be allowed, and they are reportedly completely innocuous. There is nothing on them that would directly suggest guilt on the part of Zimmerman. However, they are apparently going to argue that by making a “large” number of calls, Zimmeman somehow had a depraved mind that finally snapped when he met Trayvon Martin, and caused him to immediately desire to murder him.
I’ve seen several numbers bandied about. Some suggest Zimmerman made 80 calls in an 8-month period, and I’ve also seen 80 calls in a 6-month period. No doubt the prosecution will try to suggest this is an outrageous number of calls making Zimmerman look like some kind of evil police wannabe. In reality, 80 calls in 6 months amounts to just over 3 a week, and 80 calls in 8 months is 2.5 calls a week. Considering Zimmerman was the captain of the neighborhood watch, and residents likely often called him, causing him to relay their concerns to the police, and considering the plague of burglaries and thefts in the neighborhood during that time, those numbers are hardly outrageous or indicative of unusual, obsessive zeal.
UPDATE, 06-26-13, 2138 CST: I’ve now found a source–Branca–suggesting five calls in six months, which of course is less than one call a month. Not good for the Prosecution.
Branca’s summary of the second day of testimony is very enlightening. He writes:
Today can only be characterized as an utter debacle for the prosecution in Florida v. Zimmerman. Besides the testimony of a couple of highly professional law enforcement witnesses, the testimony of the the other State witnesses ranged from signing George Zimmerman’s praises, to acknowledging the utility of following a suspicious person from a distance, to being utterly discredited by razor sharp cross-examination of the defense.
Branca’s analysis of the backward nature of the State’s case is insightful and closely follows the analysis I’ve been propounding for some time:
State: Zimmerman Is So Good, He Must Be Bad
Following on a disagreement between the parties yesterday, before the jury was seated the Court held a hearing on whether to admit into evidence a half-dozen or so calls made by Zimmerman to the police in the six months leading up to the shooting. In each of the calls Zimmerman was playing the diligent Neighborhood Watch role, calling the non-emergency number (as trained) to report a suspicious person in the neighborhood. There is not the slightest suggestion of misconduct, ill will, hatred, etc. in any of the recordings.
The defense objected to the admission of these recordings on the basis that they were either not relevant–having occurred so long prior to the event in questions–or were “prior acts” evidence of the defendant which is normally inadmissible.
The whole thing looked odd, however, because the rules of evidence prohibiting most prior acts is intended to keep out prior bad acts of a defendant, not prior good acts. Why would the State be looking to submit prior good acts?
The reason became clear in the State’s argument this morning for why they are demanding that the recordings be admitted. The recordings, they claim, will show that Zimmerman had a well-established pattern of properly following all the Neighborhood Watch Program guidelines on prior calls–but this time, with Trayvon Martin, he broke.
The State analogized to a situation in which a spouse is repeatedly cheated upon, and finally experiences the ‘straw that broke the camel’s back’ (that’s the State’s phrase) and strikes out at their cheating partner.
Zimmerman, the State seeks to argue, was frustrated by the fact that so many of the suspicious persons observed and reported to the police by the Neighborhood Watch participants repeatedly managed to ‘get away.’ Finally, he couldn’t take it an more, their theory runs, so he decided to ‘take the law into his own hands’ with Trayvon Martin. Zimmerman, the State seeks to argue, wasn’t truly calm on those prior calls, he only appeared to be calm. Inside he was a seething cauldron of hate just looking for the innocent young black boy against which he could release his righteous anger.
Consider the total lack of ethics and shame anyone would have to have to seriously argue this from the known facts of the case. Branca suggests that the fact that the State is making this argument indicates “an almost total lack of direct evidence of second degree murder in this case,” which is precisely what I’ve been arguing for many months.
Wendy Dorival, Sanford PD Neighborhood Watch Coordinator:
By all means, read all of Branca’s work, but this portion is extraordinary. The state tried to use Dorival to suggest that NW volunteers should be entirely passive and essentially do nothing but watch, even if criminals run out of their sight. But under cross examination by West, Dorival ended up saying the opposite and willingly praising Zimmerman in the most respectful terms. Using Dorival, West obliterated every aspect of the State’s argument against Zimmerman to which she might possibly contribute. Branca summed up:
There was more, but I think the above communicates the point. It was almost as if the court clerk had accidentally placed a defense witness on the State’s witness roster.
Donald O’Brien, President of the Twin Lakes Home Owner’s Association:
O’Brien was obviously not a friend of Zimmerman, but under O’Mara’s cross-examination, O’Brien, like Dorival, was transformed into a witness for the Defense.
Selene Bahadoor, Resident and Witness:
This was the most interesting and revealing witness of the second day. Branca wrote:
The next, shall we say, interesting witness called by the State, and the last witness of the day, was Selene Bahadoor. She was one of the residents of Twin Lakes whose townhouse bordered on the scene of the altercation between Zimmerman and Martin, and who took note of the event as it happened. As such, she was really the first substantive witness to date who would, purportedly, be able to share some direct knowledge of the events as they unfolded.
Bernie de la Rionda led the direct on Bahadoor. As they talked she described how she had been in her kitchen on the first floor, cooking, when she heard a noise that sounded like ‘no’ or ‘uhhh’ from outside. She also heard some movement, like people running. Importantly, it sounded as if the running was some kind of pursuit, rather than say children playing a game of tag, because the sound progressed “from left to right”.
This was really the first testimony that could begin to solidify the State’s case. Recall that it is the State’s theory of the case that Zimmerman first ‘profiled’ and then ‘chased’ Martin before murdering him. There had been until now no direct evidence of any ‘chase’, and it seemed that Bahadoor was about to provide that essential link.
There was much discussion then about how much, if anything she was able to see of the events, but the key piece of her testimony was this matter of her hearing the sound of motion moving ‘from left to right,’ as if in pursuit.
O’Mara handled the cross-examination of Bahadoor, and it was very quickly apparent that this person who had promised to be the State’s star witness of the day–and perhaps of the entire trial–was about to be have her testimony and credibility utterly, indeed humiliatingly, crushed before the jury.
I was able to watch much of her testimony live, and crush it O’Mara did. Bahadoor was very reluctant–and this was glaringly obvious–to answer any of O’Mara’s questions, and was consistently evasive, making it clear that she did not want to say anything that did not cleave to the narrative. O’Mara was calm and respectful throughout, but that’s not hard to do when you have all of the evidence on your side.
O’Mara got her to admit that she could not actually see anyone, due to darkness, but just saw “figures” after she initially heard something, but not any intelligible speech. She described them as sort of “standing,” described “flailing arms (she could not describe that more precisely) which she demonstrated by moving her arms in a bicycle pedaling-like motion–and later said she saw a “body,” which is rather odd as that would require her to see someone flat on the ground in the same darkness that prevented her from clearly seeing anyone standing up, and know, at the time, that they were dead, thus, a “body.”
O’Mara, through impeachment, proved that she had never before said that she heard anyone moving “left to right,” not in two police interviews or her deposition. He asked her how she knew the statement about left to right motion should be spoken in court that day. She replied: “I was just saying what I remembered.” What she remembered for the first time ever that day.
She claimed to have feelings of sympathy for the Zimmermans and Martin’s family, implying that she was not at all biased, but O’Mara got her to admit that she “liked” Martin’s facebook page. He asked why she didn’t like Zimmerman’s, and she replied that she never had the opportunity. He also confronted her with the fact that she signed a Change.Org petition to “prosecute the killer of our son, Trayvon Martin.”
On redirect, BDLR tried to establish that the people she saw were running, but failed. He got her to say that she didn’t tell the Sanford Police, the Florida Department of Law Enforcement investigators and the attorneys at the deposition about the “left to right” movement because “no one asked me.” This is akin to leaving out any substantial and relevant fact in a criminal case and claiming no duty to tell anyone unless directly asked about it. This is, of course, utter nonsense. How would anyone know to directly ask about something they had no idea occurred or she would know?
On re-cross, O’Mara destroyed the State’s assertion that she did not want to testify at all when he made her admit that she did a half hour video with Matt Guttman of ABC News, which may not have been broadcast.
Her evasive manner, and her obvious bias toward Martin and the narrative destroyed her credibility. In addition, it was more than obvious that she had been coached by the prosecution, just as I suspected Witness 8/Dee Dee was in Update 11. This is a trend that would not be limited to Bahadoor.
Jeralyn Merritt of Talk Left also posted on Bahadoor. From her article (by all means, take the link):
Shorter version: The state today presented a biased witness who told a brand new version of events. She adopted a version told by her sister, who readily admits she can’t see anything without her contacts in, and she had already taken them out. On top of which, Selena Bahadoor couldn’t correctly describe Travyon Martin’s clothing or its colors just days after the shooting, which she had observed while the cops were shining flashlights on the body. But now she is sure in the pitch dark and rain, in addition to the garbled words she heard that she couldn’t make out, she heard running movement from left to right, from the direction of Brandy Green’s house up to the T.
This won’t be lost on the jury is because Don West did such a thorough job in opening statement. Between his detailed explanation and use of graphic maps, photos and charts, the jury is likely quite familiar with the layout of the backyard area and how dark it was that night. It knows what Witness 6 said, even though he hasn’t testified yet.
Shortest version: The state was left standing in the shadows with Selena Bahadoor today.
Within the next day or two, I’ll post an update on the testimony of additional witnesses, particularly “Dee Dee.” I have seen some of her testimony from today–she’ll also testify tomorrow–and it was just as I forecast in Update 11. She’s an absolutely terrible witness. I’ve never seen any witness so rude, plainly stupid and blatantly disrespectful of the dignity of the courtroom and the judicial process. And Judge Nelson did nothing at all. In fact, she protected her. More soon.