The Backwards Trial: A George Zimmerman Prosecution Primer (for the uninitiated)

With an all-female jury seated (five white, one Hispanic) and opening arguments occurring today, understand that not only should the charge against George Zimmerman never have been filed, but that the case is remarkably backwards. The shooting of Trayvon Martin on February 26, 2012, in Sanford, Florida, was an unremarkable event — similar self-defense related shootings occur regularly. In virtually all of those cases, the local police do their work, local prosecutors review it, charges are filed or declined, and only local communities are aware of or care about it. Whereas the Trayvon Martin case is an anomaly that reverses all of the conventions and behaviors normally present in the criminal justice system.

With that in mind, a primer about what to expect may be useful.

The “Scheme Team”: Attorneys Benjamin Crump, Natalie Jackson, and Daryl Parks are not only closely aligned with the prosecution, but they have already negotiated one civil settlement with the insurance company representing the Retreat at Twin Lakes, the neighborhood where George Zimmerman lived and served as Neighborhood Watch captain. Crump has been instrumental in engaging the full might of prominent racial-grievance figures, and arguably caused Florida Governor Rick Scott and Attorney General Pam Bondi to appoint Special Prosecutor Angela Corey to charge Zimmerman with second-degree murder. Crump was also pivotal in encouraging the FBI to investigate Zimmerman for hate crime or civil rights violations.

It was Crump who apparently discovered Witness Eight, “Dee Dee,” Trayvon Martin’s girlfriend who was supposedly on the phone with Martin before he was shot. Crump conducted an interview with her with ABC’s Matt Gutman present, and claimed that her testimony would obliterate Zimmerman’s self-defense claim. His claim would influence the prosecution to charge Zimmerman. He eventually arranged an interview with Dee Dee with deputy prosecutor Bernard0 de la Rionda. Not only was the “Scheme Team” present at that interview, but Martin’s mother was seated next to Dee Dee, an almost unimaginable violation of interview protocol.

The Scheme Team represents Trayvon Martin’s parents, ”those sweet parents” as Corey called them at her press conference in the style of a political victory rally announcing Zimmerman’s arrest. For the time being, they have contented themselves with conducting daily press conferences in the courtroom, but if the trial should not go their way, expect them to further inflame racial tensions.

The Prosecution: Without conducting any new investigation, Corey’s office produced an affidavit that not only failed to produce any probable cause that Zimmerman violated any of the three essential elements of the offense. It was also factually incorrect and withheld vital information of Zimmerman’s innocence. Any attorney or police officer filing an affidavit promises to tell the truth, the whole truth, and nothing but the truth. This one, filed by special prosecutor investigators T.C. O’Steen and Dale Gilbreath at the direction of de la Rionda and on behalf of Corey, fell far short of the most minimal requirements of the law. Former federal prosecutor Andrew McCarthy, Harvard Law Professor Alan Dershowitz, attorney and commentator Mark Levin, attorney John Hinderaker of Powerline, and other notables took it to task in the harshest terms.

In response, an enraged Corey called the dean of Harvard Law School and, speaking with a representative of the Office of Communications, ranted about Dershowitz for 40 minutes and threatened to sue him and Harvard. Harvard was apparently unimpressed; Dershowitz still teaches there.

Bernie de la Rionda has taken the lead in handling the case. De la Rionda learned no later than August 2, 2012, that Dee Dee committed perjury but, despite multiple requests from the defense over many months, withheld that information until the evening of March 4, 2013, only hours before the matter would be heard in court and he would be forced to divulge the information.

Defense attorney Mark O’Mara filed a motion for sanctions against de la Rionda for improperly withholding important evidence, and de la Rionda filed a petulant, angry, and unprofessional response that is a model of improper legal writing. He eventually admitted in court to withholding the evidence, with an excuse of: “I forgot about it.” Despite multiple defense requests, he forgot — for seven months — that his most important witness was a perjurer. Judge Nelson has yet to rule on O’Mara’s motion for sanctions despite de la Rionda’s admission.

Another example of de la Rionda’s malfeasance is his withholding &88212; for many months — of digital color photographs of Zimmerman’s injuries taken immediately after Zimmerman was assaulted by Martin. It’s easy to see why de la Rionda would not want the defense to have those photos — they clearly depict Zimmerman’s badly broken and bleeding nose, and his bruised, lacerated, and bloody face, as well as multiple bloody cuts on the back of his head.

Recently, the IT director for the special prosecutor’s office blew the whistle on de la Rionda’s hiding of evidence from Martin’s cell phone, including photos of stolen jewelry, an image of Martin blowing what appears to be marijuana smoke, and an image of what appears to be Martin holding a handgun. Discovered in early January 2013, much of that and other evidence was not turned over to the defense until June.

The Defense: Mark O’Mara and Donald West are experienced attorneys who have demonstrated professionalism up until this point in the trial. Normally, it is the defense that tries its case in the court of public opinion, yet in this case it has been the prosecution relying on public opinion and political support to sustain their case.

The Media: The media wasted no time in working with the Scheme Team — their narrative was quickly born and disseminated: Trayvon Martin, 17, was actually a small, slight, innocent scholar with a bright future. On February 26, he was temporarily living with his father in Sanford and walked to a nearby 7-Eleven, where he bought iced tea and Skittles for his little brother. On the way home, he was spotted by Zimmerman, a huge, hulking “white-Hispanic” many times his size who “profiled” Martin and ruthlessly ran him down as Martin fled in fright, desperately trying to reach the safety of his temporary residence. Zimmerman pursued Martin because he was black and wearing a hoodie, and brutally murdered him without provocation.

For the media, the Zimmerman case fit well with their preferred narrative lines, and they embraced it fully as a too-good-to-check case. However, their bias and lack of professional skepticism quickly blew back at them.

NBC was caught doctoring the call Zimmerman made to the Sanford Police to make Zimmerman appear to be a racist (a civil suit against NBC is on temporary hold during the criminal trial). CNN’s attempt to brand Zimmerman a racist by claiming he called Martin a “coon” during the same phone call also fell flat, and CNN had to retract their story (Zimmerman said that it was “cold”). ABC’s Matt Gutman, who worked closely with Crump, filed a variety of stories, including a story about Zimmerman walking in the halls of the Sanford Police Department without handcuffs. Gutman failed to inform readers that, at the time, Zimmerman was fully cooperating with the Sanford Police and was not under arrest, and like any citizen could enter and walk in the public access halls of any government building.

ABC also provided grainy police surveillance photos purporting to show that Zimmerman suffered no injuries. Clear and unmistakable photos of Zimmerman’s injuries forced them to retract that story as well.

Dee Dee: The young woman known as Dee Dee was represented by Crump and de la Rionda to the court to be a juvenile — a ploy to keep her identity hidden under juvenile privacy laws. However, it was eventually revealed that she was 18 when interviewed by de la Rionda on April 12, 2012. That interview revealed that Dee Dee did not have information that contradicted Zimmerman’s self-defense account, and that she would be a terrible witness. De la Rionda’s questioning of her was inept and appeared to indicate that he had tampered with her testimony, which in many respects made no sense. Dee Dee, by her own admission, knew Martin for many years and would know his habits, his social media posts, and have intimate knowledge of his criminal activities. These are absolutely not things the prosecution would want a jury to hear, yet putting her on the stand would open the door to that, as well as to her perjury regarding her age and her lie that she was so distraught by Martin’s death that she was hospitalized and could not attend his funeral.

The Facts: Normally, the prosecution is the natural ally of the police. Using their investigation — the facts — prosecutors are able to establish all of the elements of the offense and win a conviction. In the Zimmerman case, the prosecution must ignore, try to explain away, or try to construct reasonable doubt about the case of the police — a bizarre state of affairs.

The Sanford Police Department conducted an unbiased and competent investigation, and the local prosecutor, Norm Wolfinger, declined to press charges because all of the evidence supported Zimmerman’s self-defense claim under Florida law, and none contradicted it. Prosecutor investigator Dale Gilbreath admitted this on April 20, 2012.

However, that investigation and its results did not fit the narrative, and so Corey was tasked not with doing justice, but with charging and convicting Zimmerman regardless of the evidence. Corey’s office has never produced the slightest evidence proving that the Sanford Police failed in their duty or exhibited racial bias.

That being the case, what are the grounds for charging Zimmerman with any crime?

The facts of the case are simple. On a cold, rainy evening, George Zimmerman was leaving his neighborhood to shop for groceries when he spotted Trayvon Martin in the gated neighborhood, a neighborhood that had recently been plagued by thefts and burglaries, most committed by young black men. He did not recognize him as a resident. Because Martin was wearing a hoodie, Zimmerman only became aware of his race later when Martin approached his vehicle, and only mentioned his race in response to a dispatcher’s question.

Martin appeared to be under the influence of drugs to Zimmerman, and rather than walking with purpose to get out of the rain, Martin appeared to be casing the area. Zimmerman didn’t know it at the time, but Martin was under the influence of marijuana — it would be found in his blood. Zimmerman called the police and asked for officers to speak with Martin to see who he was and what he was doing, and the dispatcher asked Zimmerman to keep telling him what Martin was doing.

After approaching Zimmerman and circling his vehicle menacingly, Martin ran off between two long rows of homes. Zimmerman told the dispatcher Martin was running, and tried to get to a position where he could see Martin to direct the police he believed to be on the way and due to arrive at any minute. By the time he was able to leave his vehicle, Martin was long gone, and Zimmerman told the dispatcher he had lost him and was returning to his vehicle to meet the officers.

Zimmerman hung up, and within seconds was approached by Martin, who punched Zimmerman in the nose and took him to the ground. Martin repeatedly pounded his head into the concrete sidewalk while Zimmerman screamed for help. This was seen and heard by multiple witnesses, and recorded – poorly — by the police as a witness called 911.

Stunned, helpless, and afraid for his life, Zimmerman drew his 9mm handgun and fired one round into Martin’s torso at near-muzzle contact range. Martin sat up and Zimmerman was able to get away from him.

The police arrived within seconds and Zimmerman cooperated fully with them. Their photographs, observations, and collected evidence — recorded in their reports — fully supported Zimmerman’s account. Zimmerman continued to fully cooperate with the police, including taking and passing two-voice stress tests (a sort of lie detector), and participating in a videotaped walkthrough of the events of that night with them.

There is no question that if Martin wanted to be in his temporary home, out of the rain and out of sight of Zimmerman, he had more than enough time. However, he chose to hide and lay in wait for Zimmerman, a man who thought he had lost track of Martin. Martin was not a slight child, but a lean and muscular 5’11” and 158 pounds — substantially taller than Zimmerman.

But why would a young man like Martin attack Zimmerman? Martin was a teenager on a fast track to trouble. His social media presence shows a young man immersed in thug culture. He tried to obtain guns, and often wrote about drug use, which explains the narrative’s constant repetition that Martin was carrying tea and skittles when shot. He was not. He was carrying a watermelon-flavored drink and Skittles, two of the three ingredients, along with Robitussin cough syrup, of a drug concoction know as “Lean” or “Purple Drank.” Martin often wrote about using that concoction, and about smoking “blunts,” hollowed-out cheap cigars filled with marijuana. There is evidence that Martin bought a blunt at the 7-Eleven he visited about 45 minutes before his attack on Zimmerman. Martin was caught at school with stolen property — women’s jewelry — and had been suspended from school multiple times. The most recent suspension of ten days put Martin with his father in Sanford.

As for Zimmerman’s racism, the FBI’s investigation not only found no evidence of racism, but quite the opposite. When a relative of a Sanford Police officer beat a black homeless man, his tireless advocate was none other than George Zimmerman.

Judge Nelson: Judge Debra Nelson replaced the earlier judge, removed for obvious bias against Zimmerman. Judge Nelson would quickly prove herself no slouch at anti-Zimmerman bias. Her rulings have unmistakably favored the prosecution. Among the most egregious example of that bias has been her treatment of Crump.

Nelson initially allowed O’Mara to depose Crump, but before the deposition could be done, Crump submitted an affidavit instead, and Nelson accepted it over O’Mara’s objections and canceled the deposition. O’Mara was soon able to provide evidence that Crump was untruthful in the affidavit, but Nelson would not allow a deposition. O’Mara filed a motion with a higher court that overturned Nelson’s decision. Unfortunately, this occurred so late in the process that Crump has not yet been deposed and likely will not be before the trial begins.

Nelson has refused to rule on the multiple motions for sanctions against de la Rionda, saying only that she’ll handle them after the trial. This of course gives the prosecution the ability to continue to withhold discovery.

Nelson’s rulings, on balance, have hampered the defense and assisted the prosecution, and she shows no tendency toward balance as the case goes to trial.

What To Expect: As the trial begins, the defense will rely on the police and their investigation — on the facts — and the law. Expect them to move for dismissal at the beginning of the trial, and multiple times during the trial. In an unbiased court, this case would never have been filed. No rational judge would have issued an arrest warrant based on such a badly flawed and inadequate affidavit, and no professional judge would have allowed it to continue.

Zimmerman’s self-defense argument is supported by all the evidence and is not contradicted by any competent evidence. The prosecutor will be put in the unenviable position of arguing against the police, the evidence, and the law. Their case is the narrative, a provably false tale of race and hatred grounded only in a desire to inflame racial passions.

Do not expect Zimmerman to testify. The facts, including his videotaped reenactment of the events, will speak for him. Also expect the defense to produce highly qualified, impressive, and believable scientific witnesses. Expect the prosecution to produce poorly qualified, confusing, and easily impeachable scientific witnesses (particularly expect Judge Nelson to allow such incompetents to testify for the prosecution).

Expect the defense to be calm, steady, professional and trustworthy. Expect the prosecution to be angry, arrogant, and — if their pre-trial demeanor is any guide — to take considerable liberty with the facts and the truth. Expect them to defend the narrative with all their might; it is their case.

The narrative remains. Several prospective jurors expressed fear that a “not guilty” verdict would result in riots, or put their families and themselves in danger. Despite evidence of growing public boredom with the case, this is not an unreasonable fear.

Should Zimmerman be convicted, expect the case to be overturned on appeal due to prosecutorial misconduct, and to multiple and egregious instances of reversible error by Judge Nelson. There is reason to believe that the appeals court is carefully watching this case. Even so, expect Judge Nelson to do all she can to assist the prosecution and to hamper the defense, and to help the Scheme Team.

Regardless of the outcome, there will be no winners at the conclusion.

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