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Jul 14 2013

Loss of Focus Caused Loss of Case -Top 5 Reasons for the Not Guilty Verdict

The acquittal of George Zimmerman may make me very uncomfortable, but it was inevitable. This case says less about racial equality and racial profiling in America than it says about the State of Florida and its criminal justice system. Here are some quick thoughts on why this verdict was rendered:

(1) the Government overcharged the defendant: The State waited six weeks before they charged him with any crime and then they charged him with a crime they could never prove – Second Degree Murder. That charge required Mr. Zimmerman to have evinced a “depraved mind,” brimming with “ill will, hatred, spite or evil intent,” when he shot Mr. Martin. Where was the evidence of that? How could the DA explain away Zimmerman’s injuries and the numerous witnesses who saw the two engaged in a fight, one of whom called it a “ground and pound” battle with GZ on the bottom? It was easy (yes, easy) for the defense to get around this charge as the State had nothing to contradict Zimmerman’s version of the event. As discussed below, they started out with the wrong theory of the case and adding Manslaughter at the end did not help their cause any.

(2)Stand Your Ground Law: Manslaughter, which under Florida law is typically added as a lesser charge if either side requests it, was a lower bar. Jurors needed to decide only that Mr. Zimmerman put himself in a situation that culminated in Mr. Martin’s death. But there the State’s attorney had to get past Florida’s powerful and absurd Stand Your Ground Law. The law allows someone with a reasonable fear of great bodily harm or death to use lethal force, even if retreating from danger is an option. This put the State at a great disadvantage as the facts were generally consistent with Zimmerman’s version. Had they started with a clean Manslaughter indictment, the focus on the case and the State’s theory should have been just that GZ was the initial aggressor; under Stand Your Ground, an initial aggressor has to retreat if he can do so safely, even if the secondary aggressor responds with deadly force. But the State so focused on getting a Second Degree Murder conviction, that they allowed this to get lost in the sauce. Starting with just this charge would have focused the jury on the facts that militated towards conviction: Trayvon Martin walking back home, minding his own business, unarmed, followed by an armed GZ, after GZ had been told by police to let the man he was pursuing go, when all of a sudden a confrontation begins that leads to Zimmerman killing Martin. Under that scenario, GZ had an obligation under Stand Your Ground to retreat because he could have easily been portrayed as the initial aggressor.

(3)The Burden of Proof: Beyond a reasonable doubt (as I have told jurors many times in summation) is the highest burden of proof on the planet. It means that if you think the defendant probably did it, then you must acquit. If you believe that “something happened” but cannot explain exactly what happened, you must acquit. It is only if you are convinced to nearly a moral certainty that you can convict the defendant. Here is the charge from the Model Pattern Jury Instructions:

Under our constitutions, all defendants in criminal cases are presumed to be innocent until proven guilty beyond a reasonable doubt. The burden of proving guilt is entirely on the State. The defendant does not have to prove his innocence. The defendant enters this courtroom as an innocent person, and you must consider him to be an innocent person until the State convinces you beyond a reasonable doubt that he is guilty of every element of the alleged offense. If, after all the evidence and arguments, you have a reasonable doubt as to defendant’s having committed any one or more of the elements of the offense, then you must find him not guilty.

A “reasonable doubt” is just what the words would ordinarily imply. The use of the word “reasonable” means simply that the doubt must be reasonable rather than unreasonable; it must be a doubt based on reason. It is not a frivolous or fanciful doubt, nor is it one that can easily be explained away. Rather, it is such a doubt based upon reason as remains after consideration of all the evidence that the State has offered against it. The test you must use is this: If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.

That’s a tall order in this case due to the circumstances of the event. Neither person involved began their day thinking about a confrontation. Neither of them was committing a crime before they ran into each other. So there was no clear cut evidence to dispute GZ’s police statement of why he shot Trayvon. In the world of the criminal justice system, all inferences have to go in favor of acquittal.

As someone who deals with wrongful conviction cases, I have seen many inmates who were convicted even though there was reasonable doubt due to bad lawyering or an overly aggressive prosecution. So while the verdict greatly troubles me from an emotional standpoint, objectively there was simply too much doubt on the crime charged and under the SYG law to convict Zimmerman.

lady justice(4)Physical Evidence Did Not Refute Zimmerman’s Version: Normally, the way you get past a witness’ version of an event which does not correlate with your theory of the case, is to point to the physical evidence. What objective evidence was there that “puts the lie” to the defendant’s version here. Nothing. The sad truth is that Zimmerman and Trayvon got into a physical altercation and that Zimmerman suffered injuries consistent with his version of events. Was it enough injury to justify a murder – not in my opinion but it was not enough to disprove that he was in fear of “great bodily harm” beyond a reasonable doubt. The defense called Dr. Vincent DiMaio one of the nation’s leading experts on forensics to testify that the trajectory of the gunshot wound that led to Trayvon’s death was consistent with Zimmerman’s version of the shooting. The State did nothing on cross of DiMaio to attack that opinion and did not call on their case in chief their own expert to state that the trajectory was also consistent with witnesses’ testimony who put Trayvon at the bottom of the fight. So essentially DiMaio’s testimony was received untouched. The 911 tape was also inconclusive as both sides called witnesses to say they recognized whatever voice the attorney calling them wanted to say they recognized. So that was of no effect as the jury could not make their own determination on this key piece of evidence.

The other evidence established that there were a series of burglaries in the complex that had the community on edge. This statistics form the Wiki page on the incident are telling: “From January 1, 2011 through February 26, 2012, police were called to The Retreat at Twin Lakes 402 times. During the 18 months preceding the February 26 shooting, Zimmerman called the non-emergency police line seven times. On five of those calls, Zimmerman reported suspicious looking men in the area, but never offered the men’s race without first being asked by the dispatcher.Crimes committed at The Retreat in the year prior to Martin’s death included eight burglaries, nine thefts, and one shooting.Twin Lakes residents said there were dozens of reports of attempted break-ins, which had created an atmosphere of fear in their neighborhood.In September 2011, the Twin Lakes residents held an organizational meeting to create a neighborhood watch program. Zimmerman was selected by neighbors as the program’s coordinator, according to Wendy Dorival, Neighborhood Watch organizer for the Sanford Police Department.Three weeks prior to the shooting, on February 2, 2012, Zimmerman called police to report a young man peering into the windows of an empty Twin Lakes home. Zimmerman was told a police car was on the way and he waited for their arrival. By the time police arrived, the suspect had fled. On February 6, workers witnessed two young black men lingering in the yard of a Twin Lakes resident around the same time her home was burglarized. A new laptop and some gold jewelry were stolen. The next day police discovered the stolen laptop in the backpack of a young black man, which led to his arrest. Zimmerman identified this young man as the same person he had spotted peering into windows on Feb. 2.”

The jury (especially one of six women) had to consider that seriously and ask themselves whether they wouldn’t want to have some protection against this rash of crime. It also allowed Zimmerman to say that he was not racially profiling but merely on the lookout for a specific young African-American male – the second unapprehended one from the Feb. 2 incident. Again, all of this bolsters -not disproves- the defendant’s version.

(5)The police sided with the defendant: There is obviously no greater ally to the State than the cops who perform the investigation. They are an unlimited resource of investigation, testing and testimony. On the stand, they are professional trained witnesses used to cross examination.
That’s why the State usually starts out with the advantage of ready, competent witnesses to prove essential elements of their case. In the Zimmerman case though . . . not so much. The police here believed Zimmerman. Can we attribute that to race, perhaps. But at the same time have to look at their investigation. Zimmerman was thoroughly interviewed by Investigator D. Singleton and by Detective Chris Serino on the night of the shooting.He also underwent voice stress analysis, a type of lie detector test, on the night of the shooting, which he passed. Crime Scene Tech D. Smith photographed his injuries and hands and collected gun shot residue. Zimmerman’s clothes were taken as evidence after his wife arrived with a change of clothes.The day after the shooting, Zimmerman performed a videotaped reenactment of the incident for police. On March 12, 2012, Police Chief Lee turned the investigation over to the State Attorney’s office for review. Lee said there was not enough evidence to arrest Zimmerman: “In this case Mr. Zimmerman has made the statement of self-defense,” Lee said. “Until we can establish probable cause to dispute that, we don’t have the grounds to arrest him.” In response to criticisms of the investigation, Lee responded that “We are taking a beating over this” and defended the investigation. “This is all very unsettling. I’m sure if George Zimmerman had the opportunity to relive Sunday, February 26, he’d probably do things differently. I’m sure Trayvon would, too.”

On March 13, 2012, Detective Serino sent a warrant request to the state’s attorney recommending charges of negligent manslaughter against Zimmerman. The request states, “the encounter between George Zimmerman and Trayvon Martin was ultimately avoidable by Zimmerman, if Zimmerman had remained in his vehicle and waited the arrival of law enforcement or conversely if he had identified himself to Martin as a concerned citizen and initiated dialog in an effort to dispel each party’s concern”. “There is no indication that Trayvon Martin was involved in any criminal activity at the time of the encounter.”This of course, does not spell out murder but does perhaps spell out negligence. I suspect that the police in Sanford are generally in favor of the SYG law and probably empathized with Zimmerman due to the rash of crimes at the complex. I also suspect that they saw no reason to lose that empathy when the investigated Martin’s school and disciplinary records and found that Martin had been suspended from school at the time of his death, his third disciplinary suspension of the year. One suspension was for tardiness and truancy. Another suspension in October 2011 was for graffiti, when Martin was observed by a security camera in a restricted area of the school marking up a door with “W.T.F.” When he was later searched by a Miami-Dade School Police Department officer, looking for the graffiti marker, the officer found several pieces of women’s jewelry in his backpack, which Martin said a friend had given to him. A screwdriver was also found, which was described by the school police investigator as a burglary tool. The jewelry was impounded and given to the police, but no evidence ever surfaced to indicate that the jewelry was stolen. Martin’s third suspension involved a marijuana pipe and an empty bag containing marijuana residue. Martin was not charged with any crime related to these incidents and did not have a juvenile record. Trial judge Debra Nelson correctly ruled that the defense may have access to Martin’s records, including the details of these suspensions, as well as access to Martin’s social media sites, but ruled they will not be admissible as evidence during the trial. But the suspensions had to certainly influence the cops investigating the case. The State Attorney’s office initially determined there was insufficient evidence to charge Zimmerman and did not file charges based on the request; but they also then opted for Second Degree Murder by the time the arrest rolled around even though no evidence had changed or been added.

At trial things got even worse when on Day One the State made its biggest blunder. On cross examination, Serino was allowed to testify that he believed Zimmerman and that Zimmerman was credible when he was being interviewed. As stated here in a previous blog, any junior league trial attorney knows that a witness cannot vouch for the credibility of another witness nor can he testify about one of the ultimate issues in the case. But the State did not object until the following day, so the jury had a lot of time to sit with that thought: that the cops – who we entrust to enforce the law – believed Zimmerman was in the right and more importantly was telling the truth. The case could have been over right from the start.

Conclusion: How does a 17 year old unarmed kid get shot and killed while coming home from a snack run and the man who shot him goes home scot free after a criminal trial? There are no easy answers to this but I have tried to put up what I believe were the five greatest factors leading to this result.Remember that a civil trial is likely to follow (with a much lesser burden of proof and hopefully a more competent trial team). But with a different initial charge and a different State of the Union, (one that does not give folks the right to be arm-toting vigilantes) and I think we would have had a different result. But the manner in which the case was tried and where it was tried, the only correct verdict under the law was “Not Guilty.”

8 comments

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  1. merlin

    You had time to follow the Martin case in detail and you practice both criminal law and civil law. Wow.

    I didn’t follow this case at all apart from I was aware of the arrest and general outline of events. But it sounds from your description that politics played some role in the 2nd Degree Charge.

    Does Nassau County allow an auto inclusion of the lessor included charge ? Do you think it’s fair (“hey let’s try murder, if they don’t buy that maybe manslaughter will stick, if not maybe disorderly conduct…”)

    1. Oscar Michelen

      I detect a note of sarcasm in your question, but as my Dad always said, “If you want something done, give it to a busy man.” In any event, in NY the issue is governed by CPL 300.50. Which gives the court discretion to include any lesser included crimes if there were sufficient facts adduced at trial to meet the elements of that charge. If any party in the case requests a lesser-included and the court feels that there is sufficient evidence for it, then the court MUST give the jury the lesser-included.

  2. Gloria Wolk

    This is excellent. I wish it could be broadcast widely, so that a greater portion of the population would have better understanding than the gut reaction that has emerged. I was not shocked at the verdict, after reading your July 2 analysis. Although I have not followed the case closely, that analysis seemed prescient.

    1. Oscar Michelen

      Thanks Gloria

  3. Merlin

    I don’t understand. If the court thinks there is enough evidence to allow the the major charge to go forward isn’t there, by definition, sufficient evidence for a lessor included charge ?

    1. Oscar Michelen

      Not always – for example, sometimes the evidence only points to the top charge – if I point a gun directly at you in cold blood and shoot you, there is no evidence to support a negligence charge for example.

  4. Mike Spindell

    Your analysis is spot on. My feeling from the beginning that GZ was overcharged and there was evidence that could have led to a manslaughter conviction. There was not enoigh evidence to meet the standard for 2nd Degree murder and in the attempt the prosecution failed to make its case. Sadly, the media and the general public seem sadly informed as to the concept of beyond a reasonable doubt.

  5. Steve Sanabria

    Not so sure that the verdict was due to “loss of focus” rather than the overwhelming weight of the evidence. For another perspective see, http://www.americanthinker.com/2013/08/the_aftermath_of_the_george_zimmerman_case_part_1_the_trial_the_evidence_and_the_verdict.html

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