The final day of the prosecution’s case remained true to form in every respect, and also provided another glimpse—actually, a substantial look—into the prosecution’s closing arguments.
Sybrina Fulton, Trayvon Martin’s Mother: The first witness of the day was Sybrina Fulton, who testified that the screaming voice in the Lauer 911 recording is Trayvon Martin. The prosecution, not wanting to open the field to anything she might know about Trayvon, kept their questions limited to only that.
On cross O’Mara tried to make it clear that Sybrina might have reasons other than absolute truth to identify the voice as Trayvon. He may have had some success in that Sybrina seemed not only coached, but potentially rehearsed. She often tried to avoid directly answering O’Mara’s questions and parsed her answers so as not to concede even the most obvious points, even those not harmful to the prosecution. Her overall appearance was stoic, and the potential waterworks did not materialize.
It was clear that she was a prosecution witness through and through–a strangely rare occurance. It’s unfortunate that the jury will never hear that she has already won a seven-figure settlement, and has a continuing financial interest in the outcome of the case.
Jaharvis Fulton, Trayvon’s Brother: A soft-spoken and well-spoken young man, Jaharvis confirmed his mother’s testimony, and like his mother, testified to nothing else. On cross, however, his credibility suffered badly. O’Mara caused him to admit that when he first heard the recording in the office of the Sanford Mayor with a substantial number of other people, he told others he was not sure the voice was Trayvon’s, but later changed his mind. He said he didn’t want to believe it was Trayvon due to “shock,” “sadness” and “denial.”
As with his mother, I detected coaching, and his answer regarding why he didn’t identify the voice as Trayvon’s at his first exposure to the recording seemed rehearsed, however, his demeanor was substantially more effective than his mother’s, and I suspect many viewers not familiar with these matters might not have picked up on that. He did not, for example, give the appearance of trying to avoid cooperating with the defense.
Dr. Shipping Bao, Medical Examiner: Dr. Bao, unlike Dr. Rao, actually conducted the autopsy on Trayvon Martin, which gave the prosecution the opportunity to display a wide variety of graphic autopsy photographs so that Bao could, in a perfunctory manner, identify them. The primary purpose, of course, was to elicit revulsion and sympathy in the jury.
NOTE: I’ve seen many autopsies and hundreds of dead bodies. One factor they virtually all have in common is that in death, people appear smaller and far less vital than they do in life. This is in part due to the unnatural coloration of the skin death imparts, and to their lifeless muscle tone and posture. Another significant factor is that when people are lying flat on their back, exposed to the harsh, unnatural lighting of medical lighting, they also appear to be smaller than in life when we can see them standing and moving, and thereby make more accurate judgments about their height, size and general vitality. In addition, few upon seeing the dead, particularly when the dead are naked, can help but to feel not only a profound sense of sadness, but some sense of embarrassment, even indecency. The prosecution is surely using these factors in an attempt to influence the jury to think with its emotions.
At first, Dr. Bao, who speaks with a pronounced Asian accent that caused some difficulties for the court reporter, appeared to be professional, even endearing. His testimony was primarily unremarkable and essentially established nothing more than that Trayvon Martin was dead, had a single gunshot wound to the heart, some abrasions on his left hand, and spoke to the general distance of the muzzle of the gun from Martin’s clothing when it discharged, which he characterized as being of “intermediate” distance, no closer than one inch away and as far as four feet, which is an enormous range where gunpowder dispersion evidence is concerned.
Under cross by Don West, the trial became much more interesting. Like the ancient Chinese curse, the prosecution was suddenly and unexpectedly living in interesting times. Bao began to avoid answering questions directly, seeking, over and over, to qualify them, particularly trying to repeatedly lecture the court on the difference between opinion and fact. West displayed remarkable patience, and even Judge Nelson had to repeatedly, and with substantial frustration, tell Bao to listen to questions, answer them directly and then wait for the next question. It didn’t take long—and his testimony was long indeed—to get the impression he might be trying to help the prosecution rather than exclusively being an odd and unprofessional witness.
Bao had a number of surprises, including the admission that he remembered nothing at all about the autopsy (?!) or anything or anyone connected with it. It is not unusual for professional witnesses such as police officers and medical examiners not to remember every detail of a case—that’s why they write detailed reports—but to remember nothing at all? Bao also testified that he knew next to nothing about the protocols of autopsy, about what his assistants did, how they did it, why they did it, when they did it, often saying that a given bit of knowledge wasn’t his job, or he didn’t worry about that. Despite being the man responsible for the autopsy and all evidence related to it, he appeared to be disavowing all knowledge about it and responsibility for it. I nearly expected him to exclaim: “I don’ no nuthin’ ‘bout birthin’ no autopsies!”
Then the bombs dropped. Bao testified that he changed his mind about key conclusions in his report, specifically, the amount of time Martin might have remained alive after being shot, and the physical and mental effects of the THC (active ingredient in marijuana) in his bloodstream. The latter admission took place with the jury removed from the courtroom as Judge Nelson, pre-trial, ruled that no evidence of marijuana in Martin’s blood would be admissible. West pursued it nonetheless. I expect the defense to argue for its admission. After all, it is directly relevant to Martin’s motivation and behaviors. Keeping it out would arguably be yet another addition to a very long and continually growing list of reversible errors by Nelson.
Another amazing admission was that Bao had done independent research on these issues and written his own set of notes, notes not in any official records, which he brought to court and began to testify from, an extraordinary and dumbfounding thing by itself. West, of course, asked to see them, and Bao was very reluctant to allow that, or to allow the court, at Nelson’s order, to copy and disseminate them to the prosecution and defense. Nelson bizarrely ruled that after they were used in court, the copies would be destroyed. It’s hard to imagine what she was thinking. Any such notes brought into court and used in testimony are automatically fair game and must be provided to both sides. In addition, they must be entered into the trial record, particularly in case of appeal. She did eventually relent and they were entered into evidence.
Bao testified that he originally thought that Martin might have been alive from 1-3 minutes after being shot, and would have been entirely unable to move. Now he thought the time frame to be from 1-10 minutes and wasn’t sure if Martin could have moved or not.
NOTE: It’s generally accepted in police circles—and experience bears this out—that someone shot in the heart, so long as the injury is not so catastrophic as to immediately stop all heart function—that apparently wasn’t the case with Martin—can be expected to have up to three minutes of useful consciousness. I’ve actually seen this in action, and have knowledge of other cases where people suffering injuries to the heart, including gunshot wounds, have walked, talked, run, continued assaults, and done similarly surprising things until plummeting blood pressure brought about collapse. In this case, Zimmerman has testified that immediately after being shot, Martin sat up, spoke a few words, and fell to the ground, where Zimmerman, thinking he missed, got on top of Martin and briefly pinned his arms to prevent further assault. The police found Martin on his face with his hands under his body. It is not at all improbable that Martin could have done as Zimmerman said, and that he could have moved his hands to that position before being unable to move further.
Bao’s earlier conclusion was that the amount of THC in Martin’s blood would have had no physical or mental effects. His new conclusion was that there might have been mental effects, but he phrased it very oddly, something like: “there might be no mental effects, or there could be some mental effects.” West was amazed to learn that Bao did not tell the prosecution of these changes, and this led to a Richardson hearing to determine if the prosecution had withheld this information from the defense, as they have done with a great deal of evidence already. Nelson ruled that there was no Richardson violation, and was careful to remind West several times that there would be no mention of the marijuana in Martin’s system or of its possible effects. In this, it does appear that the prosecution was not aware of Bao’s changes of opinion.
It’s odd that the prosecution didn’t schedule Bao first and the testimony of the Fultons last. One would think they’d want their last witnesses to identify the screaming voice as Trayon and help to solidify that idea—regardless of all of the evidence supporting Zimmerman’s account—in the minds of potentially sympathetic female jurors. The Bao debacle—and it can’t be reasonably described otherwise—might very well wipe out any memory of the Fulton testimony.
On that note, the prosecution rested its case, leading to a motion by the defense, as expected, for a directed verdict. The arguments that followed stuck to well-established patterns. The defense argued the law, the evidence and precedents, correctly citing relevant higher court decisions. The prosecution, in a loud and hysterically emotional manner, argued The Narrative.
I’ve never seen such misrepresentation of evidence, testimonial and otherwise, and outright falsehoods. For example, prosecutor Rich Mantei claimed that four separate witnesses testified that Zimmerman pursued Martin. In fact, only one witness (Selene Bahadoor in Update 32) testified that she saw light or shadows moving from “left to right,” and that testimony appeared for the first time in court. Mantei also repeated, at every possible opportunity and like an endlessly looped recording, that Martin was shot in the heart, and every possible variation of that, including mentioning “hollowpoints” several times. He implied that Zimmerman took careful aim, intending to shoot Martin directly in the heart (there is, of course, no evidence of that whatever).
The prosecution’s case ended with nothing but conjecture and supposition to offer to disprove Zimmerman’s self-defense claim. As to Zimmerman’s depraved mind, Mantei had nothing more to suggest than the idea that merely shooting someone else—in the heart, mind you—was prima facie evidence of ill will, hatred and a depraved mind. This is an outrageous misstatement of the law. If this were true, there could be no such thing as self-defense, for any shooting, regardless of the circumstances, must of necessity be murder. And this was offered up as proof of the elements of the crime.
Attorneys have a duty never to misstate facts or the law. One expects defense attorneys to take the occasional liberty with the truth and to spin facts to fit their theories, but I’ve never before seen a prosecutor engage in such blatant falsehoods, and so many in such a short time. It was a disgusting and demeaning performance.
Unlike in most criminal cases, a responsible jurist could have legitimately delivered a directed verdict. It will surprise no one to learn that Judge Nelson denied the motion. I’m sure O’Mara knew this outcome before he opened his mouth to make the motion.
Despite the fact that it was already 5PM on a Friday, Judge Nelson demanded that the defense begin its case immediately, and so they did.
UPDATE: I intended to note that Judge Nelson asked the jury if they wanted to continue–she’s done that before in this trial at a late hour–and also make the point that the two witnesses presented were on the stand very briefly. It would have made much more sense simply to adjourn for the weekend, but she seems determined to finish this case as quickly as possible for some reason. So she did essentially demand that the defense continue; she just used the jury for cover.
Gladys Zimmerman, George Zimmerman’s Mother: As expected, she identified the screaming voice as belonging to George. BDLR asked her a few obligatory questions, but didn’t aggressively pursue her.
I saw a number of TV attorney talking heads suggesting that the voice ID witnesses of the state would essentially cancel out the voice ID witnesses of the defense. Apparently they have been watching some other trial, a trial where there is not substantial direct and other evidence (such as the testimony of Lauer and Good—Update 32.2). to support Zimmerman’s contention that he was the only person screaming.
George Meza, George Zimmerman’s Uncle: Meza was an impressive and compelling witness. He retired from the Army as a Command Sergeant Major, a rank few ever reach, and became a deputy sheriff—a job he still holds—to continue to serve. His command presence hasn’t diminished in the least.
An extraordinary aspect of Meza’s testimony is how he first heard the Lauer 911 recording. He was aware of Zimmerman’s involvement in a shooting, but knew little else and to serve honorably as a deputy sheriff, was determined to stay completely out of it. One night he was working at his computer, his TV behind him. His wife was watching the news, and the Lauer recording was played. Upon hearing the screams for help, Meza immediately said “that’s George,” and asked his wife what was on TV. He learned that it was the Lauer recording. “I felt the screams in my heart,” he said, and I have no doubt the jury believed him.
With that, the trial ended for the week.
Two weeks of prosecution witnesses have ended without the prosecution proving, beyond any standard of doubt, the three elements of the offense. As they offered no probable cause to prove those elements in the affidavit for the charge (Update 2) this is hardly surprising. In the many months from Zimmerman’s arrest to the trial, the prosecution could find no new evidence to demonstrate that the decision of the Sanford Police and the local prosecutor was wrong. The prosecution was also unable to prove beyond any imaginable standard of doubt that Zimmerman’s self-defense account was unsupportable. In fact, most of their witnesses supported it, either fully or in part.
For readers unfamiliar with the workings of the law and the criminal justice system, it’s difficult to explain how utterly amazing and bizarre this is. As I’ve written, it’s as though the entire system suddenly turned backwards. For a prosecutor to complete his case and to be unable to disprove self-defense, offering nothing but theories unsupported by any credible evidence, and for a prosecutor to be unable to offer evidence to fulfill the elements of the offense is simply astonishing. It demonstrates what I, and others, have been saying for a very long time: this case should never have been filed; there is no evidence of a crime.
I expect a very aggressive, effective and devastating defense case. Consider how badly the prosecution did on offense, when they had every advantage in presenting and proving their case. Will they do better when they’re playing catch up?
I’ll let Andrew Branca at Legal Insurrection sum up:
One aside before I fully wrap this up. To me, the biggest take home message of the day was not the scream identification of either the Martin or Zimmerman family, but rather the mid-trial motions and response by the State. Mantei’s web of half-truths and claims utterly unsupported by any evidence whatever showed the State was as hungry for George Zimmerman’s hide as they must have been when first handed the political prosecution of their careers. They would see George Zimmerman do life in prison, whether warranted by the evidence or not, or they would die in the effort. Given the almost complete lack of direct evidence, and the need to wildly interpret the available circumstantial evidence–and particularly following the utter debacle that was the Dr. Bao testimony–one could only imagine that their fervor would have diminished. Not so.
O’Mara’s response was that of a sheepdog to a wolf. If the State wanted Zimmerman’s hide, they’d have to fight for it, hard, and at high cost. Any thought that there might be a relatively brief defense was cast aside. I expect that not only will there be a vigorous defense, it will be a 10 gauge double-barreled coach-gun defense, to the head.
One cannot but draw the natural parallel–just as Trayvon Martin sought to punish George Zimmerman and discovered at the cost of his life that Zimmerman was not the easy target he’d perceived him to be, now it is the turn of Zimmerman’s defense team to similarly disabuse the State prosecutors. Their lives, of course, are secure. I would not, however, want my professional reputation to be at the wrong end of the defense’s considerable talent and righteous attention.
Quite so, Mr. Branca, quite so.
UPDATE: Just a quick note that might provide some insight into not only the prosecution, but Judge Nelson. When Mark O’Mara cross-examined Sybrina Fulton, he told her, sincerely, that he was sorry for her loss. BDLR immediately objected and Nelson sustained the objection. Technically, BDLR and Nelson were correct: attorneys should only ask questions of witnesses, however this sort of thing is done all of the time, and I’ve never seen–or heard of–anyone objecting. Of course, it was already said when BDLR objected and it can’t be taken back. What a classless, petty thing to do.