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Ordered Liberty

Reversible Error in Zimmerman Before We Even Get a Verdict?

July 11th, 2013 - 9:28 am

The state claims that Zimmerman was an aggressive stalker who murdered Martin after instigating a deadly physical confrontation. The prosecution argues, moreover, that (a) the shooting was caused by Zimmerman’s purported hatred for Martin (whom he did not know), coupled with his supposed depraved indifference for human life; and (b) Zimmerman was not lawfully acting in self-defense. Zimmerman counters that he was attacked and brutally beaten by Martin, a patently capable brawler, before, in justifiable fear of his life, firing his (lawfully carried) gun. The cellphone evidence reportedly contains conversations in which Martin discussed his street-fighting exploits with various family members and associates – including a request by Martin’s half-brother that Trayvon teach him how to fight.

To grasp how palpably relevant this evidence is to issues the state has put in play, ask yourself what the prosecutors would be saying if this had been Zimmerman’s cellphone containing evidence of his pugilistic skills. Think for a moment of the absurdly extravagant inferences prosecutors are asking the jury to draw about Zimmerman’s state of mind from off the cuff remarks (e.g., “these f***ing a******s always get away” and “f***ing punks”) made to the police dispatcher while he was watching Martin (because, you know, depraved-mind murderers always call the police to give them a real-time, blow-by-blow account). Is there any way such prosecutors would abide a defense claim of irrelevance regarding direct admissions by Zimmerman of his fondness for and adeptness at street-fighting? This is not a situation where the defense is claiming that evidence of Martin’s involvement in criminal activity is admissible to show he was a bad guy and therefore probably at fault. We are talking about evidence of traits of Martin’s that are directly relevant to issues the prosecution itself has raised.

Perhaps that is why the prosecution is reduced to the silly contention that when the word “fight” is used in Martin’s conversations, it could have been “code” for something else. Again, given the case they have presented, these prosecutors are in no position to claim that evidence should be excluded because it might cause the jurors’ imaginations to run wild. As defense lawyers pointed out, they were not looking to interpret Martin’s conversations — just place his statements before the jurors and let them apply their common sense. The prosecutors could then roll out their fanciful “code” rebuttal and see how far that gets them.

In any event, even if relevance is clear, that hardly excuses Judge Nelson’s failure to address it. As a former prosecutor, I winced in embarrassment watching the prosecutor’s argument, but that doesn’t change the fact that relevance is a contested issue. Judges have an obligation to rule on those when they are excluding exculpatory evidence in a murder case. Nelson punted.

The judge appears instead to have relied solely on the evidence’s purported lack of authenticity — specifically, how can we be sure that the texts and other communications on Trayvon Martin’s phone (which include photographs of Trayvon Martin) are really Trayvon Martin’s? After all, Judge Nelson sputtered, there are plenty of tech-savvy seven-year-olds who know how to access computer programs and send texts, tweets, emails, etc. How do we know that someone else didn’t use Martin’s phone to send the messages about fighting (or, I suppose, whatever “fight” was “code” for)?

The short answer to this is that legal authenticity does not require that kind of certainty. The rules of evidence are designed to promote the admissibility of relevant evidence – they err on the side of letting the jury consider evidence unless it is patently ripe with unfair prejudice (i.e., would lead the jury to decide a case based on inflamed passions or utter confusion). Authenticity, in particular, is generally — as we say in the biz — “a matter of weight not admissibility.” That is, if there is a reasonable chance that the thing at issue is what its proponent purports it to be, courts are supposed to favor admitting it into evidence while giving the opposing party lots of leeway to attack its significance on cross-examination and in summation arguments.

Here, we are talking about messages that were not only on Martin’s own phone but were concealed under a “stealth” application. In effect, they were double password protected: the password needed to use the phone plus the password needed to access the stealth app. Furthermore, there are apparently hundreds of messages, such that, if necessary, it should be straightforward to establish signature communications patterns that can identify the user.

Besides the nonsense suggesting that maybe a child purloined Martin’s phone, pierced the double-password protection, and sent the pertinent messages, Judge Nelson also inappositely compared the case to one where a proponent is trying to get emails admitted. Some courts have reasoned that you cannot tell, just from the email itself, whether it was sent by the person assigned the sender email address. In my mind, that is a matter of weight, not admissibility in any event; here, though, we do not just have the messages, we have the phone from which they were sent — a phone configured in a way that indicates the user made it difficult for anyone other than himself to send and access messages.

Comments are closed.

Top Rated Comments   
1. Concealed carry is legal in Florida.
2. Assault is illegal everywhere.
3. Freemen have the right to defend themselves.
4. Had TM not assaulted GZ he would be alive.
40 weeks ago
40 weeks ago Link To Comment
You don't have much use for someone who uses his own time and puts himself at risk in an attempt to make his community a better place. Congratulations... you're what's wrong with society.
40 weeks ago
40 weeks ago Link To Comment
McCarthy does mention what should be the obvious: why would Zimmerman have been calling in a 911 call if he intended to murder Martin?

Also, what an absurd application of the precautionary principle for the judge to have such serious doubts about the authenticity of Martin's phone records so as to exclude them. Would she not have to have evidence of a high likelyhood that they could have been "faked" or tampered with before ruling them inadmissable?
40 weeks ago
40 weeks ago Link To Comment
All Comments   (100)
All Comments   (100)
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Yeah Andrew? Reversible error on excluding Trayvon Martin texts? Then what you are saying is that George Zimmerman's Myspage page should ALSO hv been allowed in. Becs in that myspace page, we will see a man who is HARDLY this 'polite, meek, upstanding, responder of 'yes mam, no sir' that his attys carefully made over prior to trial. NO, we will see a portrait of a man who is very like this 'thug, wanna be' you like to characterize the victim as. GZ prior to this event, lhad no issue, PUBLICLY calling his ex girlfriends 'ex-hoes'. Laughing at the judicial system and how witnesses in a previous violent assault he ws charged with 'made me LOOK like a million bucks'. Then of course there is the FAR more racist commentary on there abt what he says a whole RACE of people are: 'wanna be thugs and pullers of knives'. YEAH, somehow I bet u don't think THAT is too relevant, yes?

Reversible error. I'll tell you the BIGGEST error the judge made in this case, and that is her decision NOT to allow the FULL description of what self defense IS and ISN'T to be in the jury instructions. That instruction is the ONE thing that would allow the jury to determine whether or not they felt there ws sufficient evidence to determine that that exclusion, ruled OUT self defense in GZ's case. HE initiated the entire event, but somehow, the only thing the court found ws critical ws the last couple minutes. And the problem with that is becs TM is DEAD, we have ONLY the defendant's version of events. My GUT, my instinct, experience and critical thinking skills, when taking ALL of GZ's contradicting stories into account, tells me that Trayvon Benjamin Martin ws defending himself against a wanna be hero tht ws determined to detain him and probably pulled the gun on him. AND the very real evidence that I wld have to come to that conclusion, would be the fact that GZ had that gun cocked and ready to go. He does NOT walk around all the time like that. The defense got incredibly lucky that that went RIGHT over the head of juror B29 becs that wld hv helped HER get to where she claims she wanted to go. I believe that someone like B37, it did NOT go over HER head, but becs it ws an inconvenient fact tht didnt line up w/ her pre-determined opinion of the case, she dismisssed it and bought the defense's incredibly lame defense on tht point. And should u say that even IF that instrctn hd been included- the jury STILL would not hv been able to convict, I can tell u right now, that instruction wld have allowed ME to hang that jury & passionately argue the case to the others tht they COULD convict!
37 weeks ago
37 weeks ago Link To Comment
Jury verdict in: Innocent on all counts.
39 weeks ago
39 weeks ago Link To Comment
I think they are going to find him guilty of one of the lesser charges. Much to the cheering of the Federal Media and I imagine a press conference with The Obama and Holder standing side by side...

You heard it here first
39 weeks ago
39 weeks ago Link To Comment
Nelson is simply a stuffed shirt taking orders from o & his minions. Any REAL judge doing what she has done in this case would be booted. Democrats fill most of the judiciary & she is no different. SHe's doing everything she can to get Zimmerman convicted for saving his own life. Black guy kills a white guy trying to beat him to death? He walks. No questions asked.
39 weeks ago
39 weeks ago Link To Comment
It's good that he's Hispanic. With relocation, a new name and some alteration of features, he can blend in somewhere far away. That would be the wise path if he is acquitted.
39 weeks ago
39 weeks ago Link To Comment
Unfortunately this seems to be a not uncommon situation where the judge of the court is actually the chief prosecutor in a not so clever disguise. She knows the State's case is faltering badly and she's going full out to keep the prosecution alive. She's not incompetent at all, she's just trying to ensure that "her" side wins.
40 weeks ago
40 weeks ago Link To Comment
About the only thing this judge is "qualified" for is traffic court in Tijuana and even that is a stretch.
40 weeks ago
40 weeks ago Link To Comment
I am so glad you chose to write this piece Mr. McCarthy. It was beyond shocking that the judge ruled in the manner in which she did. Having seen so many high profile cases in Florida one can only come away with the question of whether or not there exists any sane competent people in the Florida criminal justice system. Is there any judge who on appeal is competent and professional enough to conduct this case in accordance with our system of justice. Then there is the issue of undue influence from the corrupt Holder Justice Department. Evidence of Zimmerman's so called intentions have been permitted but Martin's are required to be hidden. The judge is a fool and every day she engages in behaviors that verify that assessment.
40 weeks ago
40 weeks ago Link To Comment
Congratulations, Mr. McCarthy! You've turned a sow's ear into a silk purse of fine legal logic.

Mr. Zimmerman is being lynched by Blacks and Whites of a Ku Klux Klan mentality - inspired by none other than Barack Obama and Eric Holder. Where is the legal recourse for that? Obviously, it isn't the Courts or the Vote. The electorate is the most ignorant we've had in all of this country's history.

Jurors are rarely bright. The histrionics on display in that court room are bludgeoning to the consciiousness - having nothing at all to do with what is being presented by Counsel on either side, but by the judge's obvious desire for a conviction. This jury consists of women of a limited social and academic education. They are 'programmable'. The longer Mr. Zimmerman remains on view in these hearings, the greater the likelihood there will be a conviction for manslaughter now that this judge has allowed it. A hung jury seems improbable among 6 women, who are without intellectual bona fides. They will not function from The Law, by the Law. They function from subjective impressions: 'Emotion'.
40 weeks ago
40 weeks ago Link To Comment
"Jurors are rarely bright."

On what do you base that comment, that only the smart ones try to weasel out of jury duty? That only people with a lot of time on their hands will sit for jury duty? I think it's a mistake that a lot of people make in not taking in just how important jury duty truly is & I take exception to your blanket statement above.
40 weeks ago
40 weeks ago Link To Comment
I don't know what the poster meant by jurors not being bright but my own experience would qualify the statement. My third call to jury duty led to a 4 day selection ordeal. Out of a pool of over 250 people by the time the lawyers were done it was obvious to all of us not selected that the 7 taken were the dimmest bulbs in the pack. It was a topic of much conversation and laughter among the rest us us when we were dismissed with thanks and 60 bucks for 4 days of 'civic duty'...
39 weeks ago
39 weeks ago Link To Comment
it's a well known fact that plaintiff's lawyers look for certain low-education qualities.

They takes courses on how to do this...
39 weeks ago
39 weeks ago Link To Comment
"The electorate is the most ignorant we've had in all of this country's history. "

By design, sir. Never forget that it is by DESIGN.
40 weeks ago
40 weeks ago Link To Comment
Very much like the people who voted for Barack Obama-and they were actually educated. We are in for a bumpy ride in the U.S. I fear fro our country.
40 weeks ago
40 weeks ago Link To Comment
I would say indoctrinated, not educated. Teachers now teach kids WHAT to think....not HOW to think.
39 weeks ago
39 weeks ago Link To Comment
and they were actually educated

I believe "credentialed" is more acurate :-)
39 weeks ago
39 weeks ago Link To Comment
Or, as my father used to say, "educated beyond their intelligence".

;-)
39 weeks ago
39 weeks ago Link To Comment
They attended public school and some of them submitted to a four-year course in political correctness. This does not mean they were educated. Think of the young buffoons on the Southern California beach who signed a petition to repeal the Bill of Rights.
40 weeks ago
40 weeks ago Link To Comment
Finally, an article that recognizes the Lumarque case is different in the context of relevance (imagine if George had been suspected of somehow examining Trayvon's cell phone prior to the altercation!). The authenticity discussion is a bit silly, and if the content were relevant, then the jury should be allowed to ponder the weight of the authenticity potentials.

The problem with relevance beyond the Lumarque context is that there is no one to testify to the context. Trayvon cannot. I can think of an obvious situation that many parents could attest to - Imagine Trayvon discussing RPG or other violent video game play (just like 50% of all kids today), and could have been simultaneously on a voice conversation with other player(s) - the content of which would be necessary to understand the meaning of the messages. I’ve seen kids play video games, and communicate with other players during the game by phone and text at the same time. A text that reads, “You should stop punching” (or whatever) would mean something completely different if they were engaged in video game play.

If someone wants to add 2 more weeks to the trial to introduce this new evidence, debate it, philosophize about it, get expert witnesses on social media, game play, and modern youthful behavior, then OK, but there is no need: No one knows what George and Trayvon said to each other or who started the altercation, or whether George was truly in fear for his life. These 3 things need to be proven in order to convict, and the plain facts are, none of that is possible. Guilty or not, we will never know — therefore George gets off on Reasonable Doubt. Case Closed.
40 weeks ago
40 weeks ago Link To Comment
"No one knows ... whether George was truly in fear for his life. "

This is why the content of the messages is relevant. GZ was not being slapped by an annoyed schoolboy, he was being pummeled in a potentially deadly manner by a brutal and experienced street fighter.

GZ would be able to tell the difference, and the content of the messages supports that judgement call by GZ.

Martin's fighting experience goes directly to the reasonableness of GZ's perception of a threat to his life, even though GZ had no knowledge of Martin's fighting history.
40 weeks ago
40 weeks ago Link To Comment
If common sense should prevail in the jury room, one or more of the jurors should be putting themselves in Zimmerman's position, with a broken nose, on his back with a man-sized "child" pummeling him and slamming his head into the sidewalk. In such a situation, it would be very difficult if not impossible to find that they would not be in fear of death or great bodily harm.

The prosecution seemed to be saying that Zimmerman only had two lacerations on the back of his head. Obviously, Zimmerman should have been counting the number of times his head got slammed thinking, Okay, when he gets to slam number ten then I can be reasonable in fear for my life or great bodily harm and protect myself. Then again, maybe ten is too few, would fifteen be enough?

When jurors enter the jury room, they are not expected to leave their brains and common sense outside. They are expected to rely on their life experience to weigh the evidence. Here, common sense says, if they believe that Martin was on top and was beating Zimmerman, Zimmerman could reasonable fear for his life or great bodily harm.
39 weeks ago
39 weeks ago Link To Comment
"When jurors enter the jury room, they are not expected to leave their brains and common sense outside. They are expected to rely on their life experience to weigh the evidence. Here, common sense says, if they believe that Martin was on top and was beating Zimmerman, Zimmerman could reasonable fear for his life or great bodily harm."


Well said.
39 weeks ago
39 weeks ago Link To Comment
The problem with your comment, which is argued rationally, is the lack of rationality in the prosecution and judge's decisions. This case is hyper-emotional and political, and the jurors, I'm afraid, will decide based on their emotions and political instincts instead of the law.
40 weeks ago
40 weeks ago Link To Comment
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