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UPDATE: The defense has filed a Motion to Disqualify Judge Lester. Read it here. H/t to commenter Sharona Baby at my site.
Cross posted from Frederick Leatherman Law Blog.
Both sides will be attempting to prove that their person is screaming for help because that is the central issue in the case, Zimmerman and his dad will say it’s him. TM’s parents and his cousin will say it’s TM. I would not be surprised if his girlfriend also identifies him as the person screaming.
Unclear at this point if audio experts can conclusively identify the source.
Two audiologists using different methodologies while working independently of each other claim they have excluded GZ as the source of the scream to a reasonable scientific certainty. They compared a recording of his speaking voice during his conversation with the dispatcher to the background scream on the recording of a neighbor’s 911 call.
An expert at the FBI Crime Lab has issued a report concluding that no opinion can be reached given the poor quality of the 911 recording.
Common sense indicates that the man with the gun would not have been screaming for help up until the precise moment that he pulled the trigger ending TM’s life. The terrified scream also is high pitched indicating a young person in fear for his life, rather than an adult male armed with a gun and, of course, GZ’s injuries were relatively minor and unlikely to have provoked him to scream in terror.
Given GZ’s track record for uttering inconsistent and provably false statements, I doubt that a jury will believe his claim.
Will the jury believe the father, or will it assign little weight to his testimony on the ground that he is trying to save his son from a long penitentiary sentence.
If I were a betting man, I would bet the jury will be more likely to believe the grieving mother and father who seek justice for the tragic loss of their unarmed son.
For these reasons, if I were GZ’s lawyer, I would be extremely concerned about the probable likelihood that the jury would conclude TM was screaming for help and begging for his life when, according to GZ, he “aimed” and shot him in the heart at point blank range.
Does that sound like self-defense or does it sound like an “act imminently dangerous to another and evincing a depraved mind regardless of human life?”
Recall the statutory definitions of “imminently dangerous conduct” and “evinces a depraved mind”:
Imminently dangerous conduct means conduct that creates what a reasonable person would realize as an immediate and extremely high degree of risk of death to another person.
A person evinces a depraved mind when he engages in imminently dangerous conduct with no regard for the life of another person.
Recall
The Florida jury instruction for second degree murder (Fla. Std. Jury Instr. (Crim.) 7.4) provides that an act is imminently dangerous to another and demonstrating a depraved mind if it is one that
1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another
and
2. Is done from ill will, hatred, spite, or an evil intent
and
3. Is of such a nature that the act itself indicates an indifference to human life.
Would you be willing to bet 25 years in prison, which is the minimum mandatory sentence for second degree murder, that a jury would not find that shooting a terrified kid screaming for help constituted “ill will, hatred, spite, or an evil intent?
I did not think so.
So, what can you do, if you are GZ’s lawyer?
How, if at all, can you climb or get around this Everest that appears to block any meaningful chance to win the case?
If I were GZ’s lawyer, I would have him secretly tested in a sound lab to see if his screams “match” the scream in the background of the 911 call to a reasonable scientific certainty.
If it were a match, I would take it to the prosecutors and say “Checkmate, Got Yah!”
If GZ were excluded as the source, which is what I am expecting, I would never mention the test or the results.
The test and the results would not have to be disclosed since they would be protected from disclosure by the attorney-client work product privilege.
I know that might sound crazy to you but it’s true. I have arranged for private testing in many cases, usually involving DNA testing, and that is the way it works.
The only time the defense has to disclose the unfavorable results of expert witness testing is when the tests involve mental health as might be the case when the defense is insanity or diminished capacity. Even then the results do not have to be disclosed unless the defense asserts the defense.
Meanwhile, I would have thought that GZ’s lawyers would have arranged for this test while he was out before his bond was revoked. Maybe they didn’t have the time or the money to do the test. In any event, you can be certain that they would have introduced the result at the recently concluded bail hearing, if they had it and it helped their case.
They clearly did not, but given the relatively short opportunity to do the test between bond hearings, I don’t believe we can reasonably conclude they did the test yet.
The more time that passes without the defense saying anything about a test, the more likely the test was completed with unfavorable or inconclusive results.
Should that have already happened, or if it happens, we can be reasonably certain that the defense will never mention it, ever.
There is another possibility to consider. The prosecution could move for an order requiring GZ to submit to a voice analysis test, or scream analysis test, if you prefer.
There is no Fifth Amendment right to refuse to participate in such a test because the evidence is not considered testimonial. That is, the suspect or defendant is not being forced to testify against himself. For example, it’s permissible in a bank robbery case to have each person in a lineup step forward and utter some phrase the robber said, so that witnesses can compare the sound of their voices to the robber’s voice. It’s also permissible in a forgery case to require a suspect to provide a handwriting exemplar.
The prosecution has not expressed an inclination or desire to go there, perhaps due to the expert at the FBI Crime Lab who opined that the scream is unsuitable for comparison purposes.
That would not stop me or any good defense lawyer from pursuing the matter, especially since we know there are two experts who have relied on the 911 recording.
Where there are two, there will be more, and where there are some, there will be one.
Pick the most respected legitimate expert and if the results are favorable, use them.
The prosecution might object, but if it does, request a pretrial Frye/Daubert hearing with expert testimony on the admissibility of test results obtained using a novel scientific theory or methodology.
Under the present circumstances of this case, if defense counsel fail to go down this road, I think they would have failed to provide effective assistance of counsel, which they are required to do under the Sixth Amendment.
26 Comments
Recommended, as always.
What’s screaming at me in your theory of a jury finding that TM was screaming is how many racist would-have-done-the-same-things will the defense manage to seat on the jury.
Mason, what is your thought on the motion to disqualify?
As many as they can. Heh.
Most lawyers generally approach jury selection looking for people whom they believe will vote the way they want them to vote and that works sometimes, although painting people with too broad a brush can backfire.
Like cops. Yes, they generally are predisposed to believe other cops, but if a cop testifying in a case gets caught in a lie, sometimes ex-cops on a jury will vote not-guilty.
Aside from the point you make, both sides should be looking at specific potentially outcome-determining issues like the scream issue and figuring out what jurors they want relative to that specific issue.
This issue could, after all, make or break the case for either side.
Prosecution probably wants mothers.
Defense wants fathers, but not fathers who would likely defer to a mother regarding this issue.
And so on.
It will never fly.
I say this because I’ve never seen one fly and it infuriates judges.
What do you think O’Mara’s strategy is for doing this? Is he just trying to get the idea out there to the public that the judge is biased against Zimmerman?
Is O’Mara really a good attorney as many people have said?
The motion invites the judge to retaliate and there are so many ways that a judge can do that without creating reversible error that I think it’s reckless to try this strategy, unless you’re desperate and think you have no other choice but to goad and provoke the judge to lose his temper and commit reversible error.
I wouldn’t have filed it.
Hell, they won the motion to set bail despite the findings in his order, which were supported by the evidence, btw. What’s the point? Are they trying to intimidate him?
If so, that is extremely reckless and dangerous.
I haven’t been following this too too much, but Masoninblue, I really appreciate all your coverage. Has it been plausibly explained how TM could be on his stomach with his hands under him if GZ shot him in self-defense?
(Wouldn’t TM be on his back? Does a newly dead body flop in the direction from which the bullet came? If he was on top of GZ, wouldn’t GZ dump him off quickly, not slid out from under the body?)
You’ve asked a series of good questions that are tough to answer because we do not know what positions the two people were in when GZ fired the fatal shot and we do not know if GZ moved TM’s body after the shot.
We only know what position the body was in when the police arrived and they immediately rolled it over to administer CPR.
George lies to a judge the judge gets mad and now George thinks the judge is biased against him? Well lying does tend to piss people off if every judge is dismissed because they get angry at people who lie to them would there be any judges working a trial?
Both sides will be attempting to prove that their person is screaming for help because that is the central issue in the case,
What if Trayvon hit George back then George in a fit of anger grabbed his gun. Then the scream works against George. Why do both sides seem to want to claim the scream for their own? Surely both sides can come up with alternate theories of why they screamed.
Did George claim to the police he screamed before he shot Trayvon is George locked into the scream because of past statements or because he needs something anything to back a self defense claim besides his own discredited after his bail money lies testimony?
Snark Tag needed GZ’s lawyer might not have had the time but the money yes he has it.
The cops should have forced GZ to submit to a voice test, just as they are permitted to force suspects to submit to fingerprinting, blood tests, hair samples, etc. Forcing GZ to undergo a voice test is something the prosecution should demand. GZ should be required to scream out loud on audiotape, then we can compare his scream to the 911 tape.
I neglected to add that I think the straight-on shot through the heart fired from an intermediate range of 2 to 4 inches that neither deviated up or down nor left or right indicates the two people were separated sufficiently for GZ to hold the gun between their bodies, aim and pull the trigger.
He told the police that he “aimed” and fired the gun.
These facts appear to rule out TM lying on top of GZ because, if that were the case, then I would expect an entry wound in the side with a trajectory from side to side deviating somewhat from front to back.
And if TM were straddling him as GZ claimed, I would expect the trajectory to deviate upward through the body.
He also told the police that TM sat-up after he shot him.
GZ also said TM was on top straddling him and apparently saw GZ’s gun in his holster tucked inside the waistband of his pants behind his right hip (which is extremely unlikely, as it would not have been visible). He says TM started reaching for the gun with his left hand, so he pinned TM’s left arm against his side using his right arm, pulled the gun out of the holster and fired the shot.
This part of his story does not work for 4 reasons.
1. GZ is left-handed and the gun was situated in the holster on his right side behind his hip so that he could reach across his body, grip the gun and pull it out;
2. This means the gun was “backwards” in the holster relative to a right-handed draw;
3. He could not draw the gun with his left hand because TM’s body was in the way and he could not draw it with his right hand without having to turn the gun around using his right hand while continuing to pin TM’s left arm against his right side using his right arm; and
4. He could not maneuver the gun into the “right” position between their bodies to fire the fatal shot while still pinning TM’s arm to his side.
Therefore, I believe the two had separated physically when GZ fired the fatal shot and may have been standing or kneeling facing each other.
If I’m right, TM would have fallen over probably clutching his chest and that might explain why the cops found him lying face down in the grass with his hands under his chest.
This is not a shooting in self-defense.
Fascinating. I wonder if Zimmerman wanted to make this motion, or if it was his lawyer’s idea.
Armchair talk here, but this Zimmerman comes off to a layman as having wild delusions of grandeur. A florid psychotic who planned this all out. Means, motive & opportunity. This is the pinnacle of his existence, he sees himself as some kind of righteous victim/warrior, who has brought himself to the ultimate stage. Now he’s outfoxing the judicial system, get it?
Evidently, GZ did give a voice exemplar but it wasn’t a shout for help and the FBI said it was useless for comparison purposes.
Well, if you’ve been following my recent articles, I have discussed the possibility of a mental disability, although I did not describe him as a “florid psychotic.”
Yes, I think there is something to what you say.
Heh-heh, perhaps my description was OTT, but his prior move of pitifully inept perjury and now this does seem to constitute a pattern of sorts.
The most charitable thing you could say about the guy is that he’s way, way out of his league. I think it’s more pathological.
He’s certainly not in any danger of being awarded an honorary MENSA membership.
But he might get a Nobel Peace Prize.
Touche with a tilde on the e.
Great description of GZ. To your question, I think it was at least 80/20 GZ’s idea. O’Mara has to know that he has no rational legal basis to ask the judge to recuse himself.
Judge Lester granted GZ bail of 150K after the first bail hearing based on representations made by or on behalf of GZ. He subsequently found out that those representations were false and that GZ and Co lied to the court to obtain that 150K bail so he revoked bail. The lying and scheming was transparent and obvious (e.g. the code, the money movements, the 2nd passport, etc.)
SZ was charged with perjury and then JL held a new bail hearing in which O’Mara admitted his client misled the court and that his client’s wife lied to the court. The only defense he offered for his client was that his client was a “confused young man” and then he went into an irrelevant tangent about self defense.
Despite the judge reading GZ the riot act in his order about his shenanigans, HE STILL GRANTED GZ BAIL. Again, O’Mara knows he has no rational legal basis for asking the judge to recuse himself and the prosecution will object to it. Frankly it’s a bad sign for the defense and shows that O’Mara has lost control of his client and the defense.
Good analysis, but there is another closely related possibility.
Lawyers can become blinded by the lights of the BIG case and end up using the client as a vehicle to fame and fortune.
It’s a type of conflict of interest in that the lawyer’s interest is developing and carrying out a strategy of self-glorification instead of first and foremost acting in the best interests of the client.
It’s really quite easy to be seduced by the possibility of fame and fortune when your client mistakenly and tragically is pushing you to do stuff that is not in his best interests.
We may be seeing that kind of conflict playing out with this motion.
I don’t know why he is doing it, but I think it’s a bad idea because, whether he wins or loses the motion, he’s probably pissed off the entire Florida bench.
I’ve also read, by the way, that this might be the brainchild of Don West, the “homicide trial specialist” whom O’Mara associated as co-counsel. West has a reputation for using in-your-face tactics.
This is a classic example of biting the hand that feeds you.
Also it’s funny that the motion to recuse is more evidence that the judge was right when called GZ a manipulator and sombody who is trying to flout the system.
Good point and I can see that but it’s amazing that they can’t see that this has no upside. Even in the very unlikely event that JL recuses himself, this only elongates the process (remember he waived his right to a speedy trial) and leaves them with an angry bench and a sketchy, unstable client whose dwindling resources will put even more strain on the defense.
Sorry to the triple post but keep your eye on Witness #9. His/her maybe explosive statement is to be released Monday. O’Mara fought like heck to keep it out. Maybe the recusal motion is just cover for that?
Yep.
A classic not-ready-for-prime-time move that must have the prosecutors laughing.