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.
Guy had no reply, but he wasn’t done. After a brief last series of questions by O’Mara, Guy took a final, foolish run at the first rule and demanded that Root tell him the exact moment when Zimmerman was struck in the nose. Notice that this question presupposes his acceptance that Zimmerman was struck in the nose, something the prosecution has continually tried to deny. Root replied in his consistently deadpan manner:
It’s hard to say; he was hit a bunch of times.
Olivia Bertalan, Former Retreat At Twin Lakes Resident: She provided a nightmarish story to which women may relate (recall, we have an all-female jury here). An attractive and sympathetic young woman wearing 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 — as 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.
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, a then-juvenile Emmanuel Burgess who lived nearby, was identified and caught. Bertalan moved out shortly thereafter, and Burgess was released only to be arrested again shortly after she left the neighborhood.
During her retelling of this story, her voice quavered and she shook. She is obviously still traumatized by the ordeal.
Bertalan also testified that, at the suggestion of the police, she bought a dog. Media talking heads often characterize testimony as “powerful.” Bertalan’s was indeed powerful because it was real, raw, and draped in honest emotion. She likely had the effect on the jury O’Mara sought: she convinced them the criminal threat against her neighborhood was real and deadly dangerous; therefore in viewing Martin suspiciously, Zimmerman was acting reasonably, even nobly.
On cross, John Guy tried to question her about Zimmerman on topics clearly outside the scope of her testimony. 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 a “wannabe” cop, a busybody.
After the jury returned, Guy repeated the questions and got the same answers from Bertalan. O’Mara sprung the trap. 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 okay.
Zimmerman even told her that if she was afraid, she could go to his home and stay with his wife 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 and a common security problem in the neighborhood.
O’Mara finally asked: “Was George Zimmerman’s behavior helpful to you?” “Very,” she replied.
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.”
De la Rionda handled cross, but accomplished nothing for the prosecution, and the defense case was done.
Earlier in the day, Judge Nelson 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.
This too may have been a defense ploy. When it appeared that he might testify, the camera rested on Special Prosecutor Angela Corey, whose head was down in a laptop. Doubtless she was anticipating her assistants having the chance to question Zimmerman, but it was not to be.
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.” As expected, Nelson denied O’Mara’s motion.
The prosecution’s initially called Adam Pollock, the owner of the gym where Zimmerman trained. Pollock had earlier testified that Zimmerman had virtually no martial skills and was in terrible shape. 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 changed their minds. Mantei then tried to introduce a witness having to do with an alleged bad act by Zimmerman committed eight years earlier — a clearly inadmissible matter, and a witness having nothing to do with rebuttal. O’Mara quickly explained that there was no bad act — Zimmerman has no criminal record — but Nelson was, as usual, reluctant to make a decision and left the matter hanging.
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 rule.
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, but when West saw him on the second day, he told Donnelly he would have to leave. Donnelly, apologizing profusely, did.
West explained that in a trial with some 200 witnesses — 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 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, so Nelson dropped the matter, leaving Donnelly’s devastating testimony on the record.
This is another example of bad faith from 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.
Still to come are the closing statements, and a number of other unfinished motions and maneuvers put off by Judge Nelson.