I was about to write that the prosecution is probably thanking its lucky stars that it has a judge like Nelson on this case. But I suspect they knew that the minute she picked up the case when the original judge was removed for obvious anti-Zimmerman bias. With a few exceptions, primarily decisions so clear in the law that she had no other choice than to grant defense motions, Nelson has demonstrated remarkable and blatant pro-prosecution bias. Many of those egregiously foolish decisions may very well constitute reversible error should George Zimmerman be convicted, but taken as a whole they stagger the mind.
For example: Wednesday morning after her decidedly unjudicial behavior of the previous evening, Nelson excluded text messages and tweets from Trayvon Martin’s phone that are unquestionably related to this case and are, under case law, clearly allowable. Tweets such as this:
In her frantic and nearly hysterical commentary on admissibility late Tuesday evening, Nelson expressed concern that because it was possible for someone else to have sent the text messages and social media posts made by Martin, she wasn’t going to allow anything. She also ruled that the animated video commissioned by the defense would not be allowed into evidence (the defense can use it in their closing argument, but they jury can’t have it for deliberations). As is her usual practice, she gave no substantive explanation for her rulings, other than to suggest that she read the Lumarque case (PDF available here). Here a section of the decision most applicable to the Zimmerman case:
On the appeal, we conclude the trial court abused its discretion by concluding that exhibits 5-9 and 11-15 are not admissible in the trial of this case. The State sought to admit into evidence two sexually suggestive images and eleven text messages between the ex-wife and a boyfriend, found on the defendant’s cellular telephone. The ex-wife testified that prior to the assault by the defendant, he showed her the two images and one of the text messages. There also is evidence in the record from which one might infer the defendant examined the ex-wife’s cellular telephone on the morning or afternoon before the alleged incident when he was alone in the house for a brief period after returning their children back to his ex-wife’s home.
At an in limine hearing, the trial court found the two images and one text message the ex-wife testified to admissible, but concluded the remaining exhibits inadmissible as the ex-wife could not authenticate them. The court erred. The images and text messages were found on the defendant’s cellular telephone, seized pursuant to a search of the defendant’s home through a warrant shortly after the alleged incident. This fact, testified by the State’s forensics expert, is sufficient to authenticate these exhibits. U.S. v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir.1985) (holding that authentication of evidence merely requires a finding that the evidence is what it purports to be). It also is immaterial that the ex-wife could not identify each of the messages being shown to her on the night of the incident. Regardless how these images and text messages might have found their way onto the defendant’s cellular telephone, the State has presented sufficient evidence at this stage that these exhibits constitute evidence of motive. Craig v. State, 510 So.2d 857, 863 (Fla.1987) (stating that evidence of motive is admissible when it would help the jury understand other evidence). Accordingly, they are admissible into evidence at the trial of this case upon the State laying the proper predicates…
Under Judge Nelson’s standard, it would be impossible for any electronic communication to ever be admitted because it would always be the burden of the defense (in the Zimmerman case) to absolutely prove them authentic rather than the burden of the prosecution to present evidence to prove they are not. In other words, anyone seeking to introduce such evidence must prove a negative: that unknown, unnamed persons did not surreptitiously access a twitter account or a cell phone, etc. This is an unassailable, and absurd, standard. By this standard, nothing handwritten or electronically produced could ever be introduced into evidence. Who could prove conclusively that a deceased person’s writings were not produced by someone else?
In the Zimmerman case, there are thousands of messages and photos, all on Trayvon Martin’s phone and all done in his name or handle. The prosecution had those messages since January, 2013, but did not turn them over to the defense until June 4, just before the trial started, denying the defense the opportunity to analyze them and to locate and depose witnesses (Update 29.2) Don West brought this up, as well as the prosecution’s serial lying to the court. As West told the judge, that phone was double encrypted. It is surpassingly unlikely anyone else forged anything, yet Judge Nelson hysterically exclaimed that someone could have gotten Martin’s password. Yes, and aliens might have eaten Judge Nelson and replaced her with an exact replica, but where’s the proof?
Clearly under Lumarque, the evidence is admissible, yet Nelson excluded it. Is she merely incompetent, malicious, some combination? Is she an entirely political animal? Does she sense the prosecution is in trouble so she’s trying to level the playing field? Normally, judges can express bias, but under the radar, or at least so subtly one can’t quite prove it. Not Judge Nelson.
Wednesday’s Trial Events:
Dennis Root, Use Of Force Expert: Root, a former career police officer, lacked the easy, attractive manner of Dr. DiMaio, but was reasonably effective in supporting Zimmerman’s account. He was arguably most effective in providing a solid, impenetrable barrier for the prosecution to repeatedly run into headlong. Among the most important things he affirmed was that there was no evidence of injury from Zimmerman’s small plastic flashlight on Martin’s body. This is a line of questing pursued by the prosecution in the last few days suggesting they intend to claim during closing that Zimmerman hit Martin with that “weapon,” despite not the slightest bit of evidence to that effect. Root also portrayed Martin as the aggressor, raining blows down on Zimmerman who was unable to respond. Root explained that Zimmerman’s statements and actions indicated that he was non-confrontational and lacked “the warrior mindset.”
NOTE: Reader saliorcurt reasonably suggests that the prosecution brought up the flashlight to claim that Zimmerman was armed with two weapons, and somehow should have resorted to a plastic flashlight rather than his handgun. I’ve little doubt there is some element of this in the prosecution argument, but that too is ridiculous. Dr. DiMaio testified that the flashlight could possibly cause a bruise at best, and the prosecution did nothing to elicit specific testimony regarding the flashlight’s use as a weapon. As with most of its case, there was implication, at best. And of course, with Zimmerman stunned, unable to protect himself, let alone land a blow with a plastic flashlight unlikely to cause any injury, the argument descends to farce.
Root also testified that Zimmerman’s few obscenities directed at the criminals that had been preying on his neighbors were not signs of ill will or hatred, but simple frustration “about criminals in general.” In response to O’Mara’s specific questions, he also testified that there was nothing dangerous or reckless in Zimmerman’s use of his handgun. Root also testified that he normally testifies for the prosecution, saying:
yes, this is the complete opposite from where I usually sit.
The effect of a law and order kind of guy willingly testifying for the defense won’t be lost on the jury.
O’Mara was also able to elicit a comment about the law enforcement profession, as he so often has in this trial. Root said:
It’s a very noble career and I would recommend it to anybody.
Once again, the state foolishly blew itself up. One of the primary rules for any lawyer is never to ask a question of a witness to which one doesn’t know the answer. Prosecutor John Guy did just that and it bit him. He may well have been the unwitting originator of another legal maxim: “don’t play with life-sized dolls in court.”
Obviously thinking himself quite the Perry Mason, Guy produced a life-sized, flexible, dark gray human doll and dropping it to the floor, kneeled astride it in an attempt to demonstrate that Zimmerman could not have drawn his gun, and could not have shot Martin as he claimed–or something–this despite the testimony of multiple witnesses, not the least of which was DiMaio, to that effect. Guy also continued with the Trayvon as screamer meme, trying to get Root to say that it was possible that Martin was screaming (for 40 seconds?!) because Zimmerman was pointing a gun at him. Root blew up the first legal rule by replying that if he were in Martin’s position, astride Zimmerman and beating him, and Zimmerman suddenly produced a gun, he wouldn’t scream, but would go for that gun, just as Zimmerman has consistently maintained.
On re-cross, O’Mara blew up the second legal rule on Guy. He asked Guy, with a wry smile, “can I have your doll,” and promptly knelt astride the doll in front of Root just as Guy had done. Only O’Mara began to whack the doll’s head against the floor, getting Root to say that kind of beating could have produced Zimmerman’s injuries. It was a dramatic and effective tactic, but not the overblown and hysterical dramatics of Bernie di la Rionda or Rich Mantei. It was direct and to the point, and a sight no jury could forget.
Having his flashlight theory taken from him, Guy–on re-re-direct–couldn’t resist another run at the first legal rule. He asked if Zimmerman had other options other than using his gun. Root replied:
No. Given the totality of the circumstances, I don’t believe Zimmerman had any other option.
This is, in a single sentence, the absolute explanation of and justification for self-defense. Guy had no come back, but he wasn’t done. After a brief last series of questions by O’Mara, Guy took a final, foolish run at the first legal rule and demanded that Root tell him the exact moment when Zimmerman was struck in the nose. Notice that his question presupposes his acceptance that Zimmerman was struck in the nose. Root replied in his consistently deadpan manner:
It’s hard to say; he was hit a bunch of times.
One could almost hear a rimshot. After repeatedly sticking his head in that particular lit oven, Guy finally gave up and retreated to the prosecution table, his face blackened and his hair smoldering.
Andrew Branca at Legal Insurrection, as usual, has video for those with the time and inclination. His commentary is also worthy of your time.
Olivia Bertalan, Former Retreat At Twin Lakes Resident: Under O’Mara’s sympathetic gaze, she provided a nightmarish story to which any woman can relate, which is likely why O’Mara wanted her as one of his two final witnesses. An attractive young woman with glasses, on August 3, 2011, Bertalan was home–during the day–with her infant child when someone began knocking repeatedly on her front door. Alarmed she retreated upstairs where she could look out and saw two young black males who were obviously casing her home. She called the police and the burglars broke into her home. She locked herself in her child’s bedroom and scared to death, stood, holding her child on one hip and a pair of “rusty scissors” in her other shaking hand.
Understanding female psychology tolerably well, I would have loved to be in the courtroom just then. I have no doubt every woman on that jury was empathizing with Bertalan and putting herself in Bertalan’s place. Even more so when a still-traumatized Bertalan described one of the burglars rattling the doorknob of the room in which she was hiding.
Fortunately, the burglar did not break into the room. The police arrived only after the burglars made off with her camera and laptop and other items. There was a semi-happy ending when one of the burglars, one Emanuel Burgess who lived nearby, then a juvenile, was identified and caught. However, Bertalan moved out shortly thereafter, and Burgess was released, only to be arrested again shortly after Bertalan moved.
During her retelling of this story, her voice quavered and she shook. She is obviously still very much affected by the ordeal. She also testified that at the suggestion of the police, she bought a dog. Media talking heads often characterize testimony as “powerful.” Bertalan’s was because it was real, raw and draped in honest emotion. I have no doubt she had the effect on the jury O’Mara sought: she convinced them the criminal threat against her neighborhood was real and deadly dangerous. She would convince them of Zimmerman’s useful and noble role in suppressing that threat shortly.
On Cross, Guy tried to question her about Zimmerman on topics clearly outside the scope of her testimony and was shut down. The jury was removed and he continued that line of questioning. It was a clever trap by O’Mara, and Guy smugly walked right into it. He got Bertalan to say that shortly after the home invasion burglary, Zimmerman came to her home and gave her his phone number. Zimmeman also spoke with her about the incident some 20 times. Guy was foolishly trying to suggest that Zimmerman was some cop-wannabe busybody.
After the jury returned, Guy repeated the questions and got the same answers from Bertalan. Then O’Mara sprung the trap.
In short order, Bertalan testified that she really appreciated Zimmerman’s attention and concern, and explained that his subsequent contacts were for the sole purpose of checking in to see that she was OK. Zimmerman even told her that if she was afraid, she could go to his home and be with Shellie whenever she wanted, something else that meant a great deal to Bertalan. Zimmerman also brought her a lock to secure her sliding glass patio door, the door the burglars used to enter her home, a common problem in the neighborhood.
O’Mara finally asked: “Was George Zimmerman’s behavior helpful to you?” “Very,” she replied. Guy did not run headlong into that particular wall again.
Robert Zimmerman Sr., George’s Father: A soft-spoken man, he was the final defense witness and testified only to identifying George’s voice on the Lauer 911 recording. He heard it in the prosecutor’s office in the same building, and upon hearing it, told them “absolutely, it’s my son George.”
Di la Rionda handled cross, but went nowhere, and the defense case was done.
Earlier in the day, Judge Nelson relentlessly badgered Zimmerman over the strong objections of Don West, demanding to know if he intended to testify. There is clearly no love lost between West and Nelson. It initially appeared that he might testify, but ultimately decided not to do so.
I suspect that this too may have been a defense ploy. When it appeared that he might testify, the camera rested on Angela Corey, whose head was down in a laptop. Unlike her usual, continual scowl, her face was wreathed in a smug grin. No doubt, she was anticipating her junkyard dogs having the chance to tear into Zimmerman, but alas, it was not to be. This was a wise move indeed by the defense.
O’Mara made another argument for acquittal, and though very brief, he hit exactly at the heart of the issue by suggesting that she compel the prosecution to “identify their factual scenario, their theory of the case, anything, articulating in some way Zimmerman’s guilt.” Of course, she did not do that, nor did Prosecutor Rich Mantei in response to O’Mara. How could he? There is no credible theory and no evidence of Zimmerman’s guilt. As expected, Nelson ruled there was sufficient direct and circumstantial evidence to keep going.
The prosecution’s rebuttal fizzled dramatically. They initially called Adam Pollock, the owner of the gym where Zimmerman trained. As I noted in Update 33, Pollock testified that Zimmerman had virtually no martial skills. Mantei began by asking questions that were not in any way a rebuttal, a move that could be nothing other than a bad faith attempt to smear Zimmerman in any way possible. O’Mara objected and Pollock was eventually excused without testifying at all.
They intended to call a second witness, but thought better of it.
Mantei tried another tack that had nothing to do with rebuttal in asking to have a state alcohol agent involved in a 2005 incident with Zimmerman testify. Mantei told an incomplete story, seeking to portray Zimmerman as an out-of-control cop assaulter, and O’Mara set the record straight. Actually, Nelson shouldn’t have bothered to listen, as Mantei’s witness–he didn’t even know if the man could be produced to testify–was not a rebuttal witness at all, but as always, she allowed the prosecution substantial leeway.
For those unfamiliar with the case, Zimmerman was with a friend in a bar when several plainclothes alcohol agents, without identifying themselves, drug Zimmerman’s friend out of the bar. Thinking his friend under assault, Zimmerman followed and placed his hand on one officer’s shoulder. He was arrested for assault on a police officer, a felony. The charge was quickly changed to a misdemeanor, and Zimmerman was allowed to participate in a pre-trial diversion program. He completed it, and the charge was dropped entirely. Zimmerman has no criminal record. The actions of the system in this case clearly indicate they had no case against Zimmerman, and O’Mara reminded the judge of that.
She should have immediately denied that witness as well–it was nothing more than potential evidence of a prior bad act which is clearly not admissible–but Nelson was reluctant to make a decision and left the matter hanging.
Another Run At Donnelly: John Donnelly, the retired physician’s assistant and Vietnam combat medic whose testimony was so effective in identifying Zimmerman’s voice was the subject of an attempt by the prosecution to exclude his testimony. It seems that Donnelly sat in on the trial for several hours over two days in violation of the sequestration rules.
So there was a lengthy hearing on that matter, with the prosecution accusing the defense of all manner of mischief. It was quickly discovered that not only did the defense have no idea Donnelly was there, when West saw him on the second day, he told Donnelly he would have to leave and Donnelly, apologizing profusely, did. West explained that in a trial with some 200 witnesses–and they had no idea if they would use Donnelly or not–he must have slipped through the cracks and was not notified of the sequestration rule. West honorably took responsibility for that omission, though he clearly had nothing to do with it. It was also clear that Donnelly’s testimony was unaffected by the witnesses he heard and Nelson dropped that matter, leaving Donnelly’s devastating testimony on the record.
This is another example of the bad faith of the prosecution. In normal trials, this sort of thing is simply dealt with informally by both sides. They bring in the judge only if there is some compelling evidence of intentional malfeasance. This is particularly true in trials with large numbers of witnesses where it is very easy for witnesses not to get the message of sequestration, or to misunderstand it.
The day ended with the prosecution’s first round of closing tentatively scheduled for 1000 on Thursday, with the defense closing after lunch and the prosecution’s final summation thereafter. Yet, there are still a number of issues Nelson has continually kicked down the road to be resolved.
I’ll report on the closing arguments in the next article. I expect the prosecution to stick to The Narrative, and the defense to argue logic, law and evidence. If their trial strategy is any indication, expect the prosecution to engage in junior high-level dramatics, mischaracterization of evidence, even outright lies.
It’s a backward world in the Sanford courthouse, from start to finish.