Judge Debra Nelson continues to give the defense worthwhile arguments for appeal, if necessary.
After a Tuesday night that saw her decidedly injudicious rant and her storming off the bench as the defense tried to address her, Wednesday morning arrived with little improvement in Nelson’s temperament. Nelson excluded text messages and tweets from Trayvon Martin’s phone referencing attempts to buy and sell illegal guns, fighting — including at least one message about punching people in the nose and making them bleed, and a large number of messages about Martin’s drug use. In her frantic commentary on admissibility late Tuesday evening, Nelson expressed concern that someone else could have sent the text messages and social media posts made by Martin, so she wasn’t going to allow any of them.
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 the jury cannot have it for deliberations). She gave no substantive explanation for her rulings other than to suggest that she read the Lumarque case.
The following is the section of the Lumarque decision most applicable here:
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 … (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 … (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 party seeing to introduce the evidence to prove a negative. They would need to establish that unknown, unnamed persons did not surreptitiously access a Twitter account or a cell phone, etc., rather than those seeking to exclude having to introduce evidence to suggest the postings were not authentic. This is an unassailable and absurd standard. With it, 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. The delay denied the defense the opportunity to analyze them and to locate and depose witnesses. Don West brought this up, and also mentioned the prosecution’s lying to the court about this evidence.
West told the judge Martin’s phone was double-encrypted. It is surpassingly unlikely anyone else forged anything, yet Judge Nelson exclaimed that someone could have gotten Martin’s two passwords.
Clearly, under Lumarque the evidence is admissible. Yet Nelson, who claims to have read the case, excluded it.
Wednesday’s other events and witnesses:
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 into which the prosecution repeatedly ran headlong. Among the most important things Root affirmed was that there was no evidence of injury from Zimmerman’s small plastic flashlight on Martin’s body. This is a line of questioning pursued by the prosecution in the last few days suggesting they intend to claim it during closing, despite having no evidence that Zimmerman hit Martin with that “weapon.“ 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.”
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.
O’Mara was also able to elicit a comment about the law enforcement profession, as he often has in this trial. Root said:
It’s a very noble career and I would recommend it to anybody.
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 also may have been the unwitting originator of a second legal rule: “Don’t play with life-sized dolls in court.”
Guy produced a life-sized, foam, dark gray human doll and dropped it to the floor, and 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. This was despite the testimony of multiple witnesses, not the least of which was DiMaio, that this was the likely scenario. Guy also tried to get Root to say it was possible that Martin was screaming — for 40 seconds — because Zimmerman was pointing a gun at him.
Root exploded 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 instead 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 with a wry smile, “Can I have your doll?” He promptly knelt astride the doll in front of Root just as Guy had done. But O’Mara began to violently whack the doll’s head against the floor, getting Root to say that such a beating could have produced Zimmerman’s injuries. It was a dramatic tactic, and a sight no jury could forget.
Having his flashlight theory taken from him, Guy — on re-redirect — 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 sentence, the proper explanation of and justification for self-defense.