UPDATE: The defense has filed a Motion to Disqualify Judge Lester. Read it here. H/t to commenter Sharona Baby at my site.
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.
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
2. Is done from ill will, hatred, spite, or an evil intent
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.