Reversible Error in Zimmerman Before We Even Get a Verdict?

In presiding over the trial of George Zimmerman, who is accused of murdering Trayvon Martin, Judge Debra Nelson has made some awful rulings -- none worse than failing to direct a verdict of acquittal on the preposterous second-degree “depraved mind” murder charge. The state’s evidence that Zimmerman had the necessary criminal intent is non-existent, much less sufficient to meet the “beyond a reasonable doubt” standard. Compelling evidence, moreover, establishes that Zimmerman acted in self-defense, a claim the state has not come close to refuting. (See Andrew Branca’s comprehensive summary here.)

Wednesday morning provided a snapshot of Judge Nelson’s style: her peremptory decision to exclude exculpatory evidence recovered from Martin’s cellphone -- a ruling that in and of itself could be reversible error if the state is able to steamroll the jury into convicting Zimmerman.

At issue are ostensibly deleted texts and photos recovered from Martin’s cellphone, well described in Bob Owens’s post. (Side note: deleted rarely means disappeared -- much of what you may think you’ve deleted from a computer can be recovered by a competent examiner.) Although the evidence won’t be covered much by the mainstream media so desperate for a conviction in this case, it would be of interest to good faith journalists since it cuts sharply against their legend of the saintly, boyish Trayvon. Reportedly, the data haul reveals his self-proclaimed fighting prowess as well as involvement with guns, drugs and porn. (If this were Zimmerman’s cellphone, don’t doubt that you would have been inundated for months with the details about its contents.) Only some of that evidence, however, would be relevant to the issues in the trial, which, for present purposes, is our concern.

In a hurried oral ruling from the bench Wednesday morning, after a late-night argument among the trial’s fatigued participants, Judge Nelson suppressed the evidence. She did not explain the ruling very coherently. To understand it as best we can, we must piece together her rambling remarks during Tuesday night’s oral argument (courtesy of Legal Insurrection, we find the video), since all she did Wednesday was reaffirm what little she had already said.

The ruling is troubling on two scores. First, there are two issues to be decided on admissibility: (1) relevance (is the evidence probative on some contested issue in the case?) and (2) authenticity (are there reasonable grounds to believe the evidence is what it purports to be -- in this instance, Martin’s electronic communications?); yet Nelson appears to have addressed only one of them, authenticity (beginning at the 8:15 mark of the video). Second, she has gotten the authenticity question wrong.

It is worth explaining why this suppression issue is so significant and how a good judge would go about deciding it. There is nothing more momentous in a criminal trial than a decision by the court to preclude defense evidence. Because of double-jeopardy principles, the prosecution does not get a do-over: if the state’s evidence is erroneously suppressed and the defendant is acquitted, the state does not get to appeal. But a convicted defendant does get to appeal. Since an accused has a constitutional right to present a defense, which means an opportunity to have the jury consider all admissible exculpatory evidence, nothing is more likely to get a judge reversed on appeal than a ruling that bars defense evidence.

Knowing the appellate court is going to scrutinize such a ruling with great care, particularly in a murder case in which the defendant will be severely sentenced if convicted, a good judge is going to be very exacting. After ensuring that the admissibility issues are fully developed on the record -- which should be done in writing where possible for evidence of obvious importance – the judge will then rule, fully addressing each contested issue. This does two important things: (1) it gives the appellate court the benefit of the judge’s analysis and the confidence that the judge gave the matter the careful attention it deserved; and (2) it prevents the defense from manufacturing new admissibility arguments on appeal -- if defense counsel was given a fair opportunity to make his points, the points he fails to make are waived. If the judge fails in her responsibility to make a good record, there is no limit on the imagination of defense lawyers to come up with ways the suppression of the evidence must have led to the conviction.

Given all that, Nelson’s failure to address the relevance of the evidence is a glaring default. The only rational explanation is that the relevance was so palpable that commenting on it seemed superfluous.