Florida vs Zimmerman: why the jury got it right, and how the prosecution got it wrong.

Trayvon Martin: February 5, 1995 – February 26, 2012.

Trayvon Benjamin Martin: February 5, 1995 – February 26, 2012.

| Part I | Part II | Part III | Part IV | Part V |


Part I: Opening Statement/Introduction.

How could this happen? How did a killer walk away as a free man after murdering an unarmed boy? Why was the verdict not a conviction? What was this jury thinking? After George Zimmerman was found Not Guilty of any criminal liability for killing Trayvon Martin (Florida vs. Zimmerman1), the disbelief seemed nearly universal. But to many who carefully watched the trial, the better question was: How could a jury not acquit? Given the inexcusably poor job by the state of Florida, coupled with the thorough zealous advocacy by Zimmerman’s defense team, how could reasonable jurors do anything else but acquit Zimmerman?

Based on Florida law and the case as it was tried to them, Not Guilty was the proper verdict in FLvsGZ. The 6-woman jury was right to acquit Zimmerman of murder, but although the jury got the verdict right, the prosecution tried the case all wrong: wrong, if they wanted to secure a conviction. In a three week trial that began with opening statements on Monday June 24, 2013 and went to the jury for deliberation on Friday July 12, little went right for the outmatched prosecution. That train wreck of a prosecution was led by special prosecutor state attorney Angela Corey.

From April 2012 thru July 2013, Angela Corey’s judgment about FLvsGZ was questionable at best, professional misconduct at worst. Harvard Law Professor Alan Dershowitz went so far as to call for Angela Corey to be disbarred.2 Though Corey losing her law license would be too extreme, losing her job is not. Corey’s removal from the post of State Attorney would be what her unsatisfactory prosecution of Trayvon Martin’s killer was not: a step towards justice. Corey’s failure was not the jury verdict itself; her failure was in the sham of a trial.

Moments after the Not Guilty verdict was announced at 10:00pm ET on July 13, 2013, Corey, with a startlingly disconcerting affect, stepped to the podium and offered what seemed more like an insensitive awards show acceptance speech than a statement following an acquittal that should embarrass her office. Flanked by the State Attorneys (“SAs”) who prosecuted Zimmerman, Corey seemed almost smug as she stood by both her choice to [over]charge Zimmerman with second degree murder and defended her SAs’ inability to convict a killer. [Watch: Corey post-verdict press conference.]

Even if her conciliatory remarks fell short of confessional capitulation3, one would still expect a more somber tone from a woman whose office’s ineptitude had just been on display for the entire world to witness. For many trial-watchers, Corey’s questionable judgment was evident long before the Zimmerman trial commenced; doubts about the legitimacy of this prosecution surfaced in April 2012 when Corey’s office overcharged a case they then proceeded to prosecute in epically disastrous fashion.

Though manslaughter was a mandatory lesser included offense that jurors were directed by the judge via jury instructions to consider, the state failed to argue for manslaughter during trial or closing arguments. [Read: Zimmerman Verdict: Murder vs Manslaughter?] By entirely ignoring the lesser included charge in their presentation to the jury, the state ceded all power to Zimmerman’s defense team to craft a convincing narrative for the jury. While the strategic choice to not argue manslaughter may have been supportable early on in FLvsGZ, Corey’s inflexibility and failure to recognize that her SAs were losing their second degree murder trial and to re-strategize accordingly is inexcusable.

Yes, Corey and co. overcharged in FLvsGZ by asking for second degree murder without presenting sufficient evidence to support it. But prosecutors overcharging = par for the judicial course. Prosecutors know that the legal deck is stacked in their favor. Corey was hardly the first prosecutor to bring charges not warranted by evidence, unsupported by the law, and she won’t be the last. The criticism of Corey’s failure in FLvsGZ only begins with her decision to over charge, but it does not end there. After all, prosecutors bring weak cases, go to trial under-prepared all the time, and still win many (most?) weak cases any way.

Though, throughout the FLvsGZ trial, I was adamant that this prosecution did not prove Zimmerman committed either second degree murder or manslaughter beyond a reasonable doubt, and although the prosecution did not disprove defense’s theory of self-defense, still I thought these prosecutors might convince the jury to convict anyway. On that point, I was wrong. I severely underestimated the ineptitude of Angela Corey, whose inability to present a case that merited a guilty verdict in a case of this importance paled in stark contrast to the efficacy of Zimmerman’s superb defense team.

Laymen, commentators, and litigators (both defense and prosecution) alike commented on the seeming incompetence of the FLvsGZ prosecution team. Some [including at least one of the prosecution’s own witnesses4] are convinced that the state of Florida “threw” this trial. While anything is possible5, it is reasonable to conclude that Corey thought she could- and would- win FLvsGZ. A combination of personal ego, professional pride, and genuine belief that Trayvon’s death was the result of a crime (or a combination of all three) may well have led Corey and her SAs to think they could convict Zimmerman; and indeed they could have convicted Zimmerman (or could have at least presented a prosecution that merited a conviction), had they tried this case properly.

Merely wanting to win may have been enough to secure convictions in many other cases; but wanting to win was not enough to earn a guilty verdict in FLvsGZ. Give the SAs the benefit of the doubt that they were working for, and expecting, a guilty verdict. Yes, for the sake of argument I keep assuming the prosecutor wants to win. This was the same assumption I carried with me as I watched every televised minute of the three week trial.

Mine was a curious position: I am the mother of a teenage son, a skinny black boy who I don’t want to get shot by armed vigilantes. I’ve also worked with and for brilliant public defenders in three states6, so my admitted natural bias is through the eyes of defense counsel. From that precarious vantage I watched every minute of FLvsGZ: as both a 16-year-old black boy’s mother, and as someone who helped zealous defense counsel represent men charged with violent crimes. In both roles I expected to see the state of Florida put on the prosecution that Trayvon Martin deserved. They did not.

Although not guilty was the verdict that best matched the case presented by the state in FLvsGZ, an acquittal was not a foregone conclusion. Though at the end of the trial the poor prosecution deserved an acquittal, the evidence itself did not. From opening statements [when prosecutor John Guy came out and made an excellent first impression, whereas defense counsel Don West stumbled awkwardly through disjointed opening remarks marred memorably by an ill-advised knock knock joke7], to the verdict [by which time acquittal was the proper verdict that best matched the evidence as presented], trial observers watched as Corey’s prosecution unraveled.

But as the trial began, acquittal was neither the inevitable nor the only just verdict. So was it prosecutorial hubris that led to such a poor performance by Angela Corey and her SA colleagues? If the prosecution was actually trying to convict Trayvon Martin’s killer, and had enough evidence to do so, how then could they manage to botch a trial so catastrophically? And just what did Angela Corey do, or fail to do, that has so many people joining Prof. Dershowitz in demanding her removal from office?

This prosecution’s inadequacy boils down to two primary categories of blunder: (1) Lack of Preparation, and (2) Poor Presentation. What is not on the list of fatal flaws to the prosecution’s case? Weak evidence. Because evidence is whatever smart, prepared lawyers can convince the jury it is. In FLvsGZ Corey and the prosecution had evidence sufficient to merit a guilty verdict, had that evidence been properly prepared and presented so as to support a second degree murder conviction.

Perhaps theoretically jury verdicts should be decided on the merits of the evidence alone, but they often are not. Evidence is not some stagnant indisputable set of empirical objective facts; to the contrary, evidence must be presented via witness testimony as part of a cohesive narrative of guilt for its introduction to be effective by the state. Corey and her SAs failed to use both the state’s witnesses and its physical evidence to prove Zimmerman was guilty of murder. A prosecution that might have otherwise convicted Zimmerman of second degree murder was derailed by Lack of Preparation, and Poor Presentation.


 

Part II: Lack of [Witness] Preparation.

In its attempt to convince a jury that George Zimmerman was a murderer, the state of Florida called 39 witnesses over nine days. The testimony of those 39 witnesses should have been ordered, prepared, and presented so as to lay out a step-by-step roadmap to a guilty verdict. But, collectively, not only did the state’s witnesses not help the prosecution towards conviction, more often than not, the state’s witnesses actually helped the defense.

The importance of the prosecution’s witnesses went well beyond merely eye witness testimony from the night of Feb. 26, 2012. From police officers to family members, witnesses were the state’s vehicle through which to introduce evidence (e.g., photos, Trayvon’s clothing, Zimmerman’s statements, phone records.) and demonstrative exhibits (e.g., aerial maps, timelines.) to the jury. Such evidence could not be presented to the jury on its own by the prosecutor; witnesses must testify as to any exhibits’ identity, authenticity, and relevance.

Because it is via witnesses that the very evidence that would support a conviction is introduced to the jury, it was imperative that the state properly prepare its witnesses to assist the state in convicting a murderer. Through their testimony is a narrative for guilt crafted. But as witness after witness took the stand, the prosecution’s questioning did little to elicit key points essential to securing a conviction. Instead of their testimony tending to support guilt, it was through the prosecution’s own witnesses that the possibility of a guilty verdict slipped away. [View: Prosecution 39 Witnesses, Chart.]

FL vs GZ: Prosecution Witnesses

Of the prosecution’s 39 witnesses, 10 were officers or employees of the Sanford Police Department (“SPD”). Some may contend that if there is fault to be laid for the state’s failure to convict Zimmerman, it should fall at the feet of the SPD. Those people would be mistaken. Yes, it seems that SPD accepted a killer’s version of events too quickly and with little to no due diligence. Yes, their shoddy investigation seemed casual, perhaps even incompetent. But if the goal is to see Zimmerman held criminally responsible for killing Trayvon, focus on all that SPD did right, as was testified to at trial: SPD got GZ to waive his Miranda rights, to speak to police without an attorney, to give an inculpatory recorded interview. SPD coaxed contradictory statements out of GZ, and videotaped a reenactment that, if he were acting in his own best interest, Zimmerman never should have given.

Had Zimmerman been represented by counsel at the time of his SPD interview, no competent lawyer would have permitted Zimmerman to speak to SPD without his attorney present, much less give a videotaped reenactment.8 Yes SPD made errors, but none of the ways in which SPD’s investigation was less than ideal were singularly problematic nor cumulatively fatal to the prosecution’s case. A competent prosecution committed to conviction could have earned a guilty verdict in FLvsGZ despite relatively minor oversights by SPD. Besides, since when does sketchy half-ass incompetent police work hinder a prosecution otherwise committed to conviction?9 The work of the SPD in investigating FLvsGZ may not have been stellar, but neither was it their testimony alone that sunk this prosecution’s ship.

Of the more than three dozen men and women called to the stand by the state, the most startling testimony came from Trayvon’s friend Rachel Jeantel, who was on the phone with Trayvon just moments before his death. Inexcusably, Corey and her prosecutors failed to properly prepare Ms. Jeantel for the emotional trauma and mental exhaustion of testifying and being cross-examined in court. Over the course of two days of cross examination Ms. Jeantel was hostile, recalcitrant, and outright rude. But her hostility was not reserved for defense counsel. Even during direct and re-direct examination by prosecutor de la Rionda, Ms. Jeantel was sullen, abrupt, and uncooperative. [Read: Rachel Jeantel: When Keeping It Real, Goes Wrong.]

On her second day on the stand, an occasionally gentler Rachel was still so contentious that her testimony was a distraction from the prosecution’s stated goal of convicting a murderer. During those critical six hours of the prosecution’s case in chief they elicited little testimony from Ms. Jeantel that could be used to argue for Zimmerman’s guilt. [Watch: Rachel Jeantel, Direct Examination.] Instead of drawing jurors into a story about Zimmerman’s guilt and Trayvon’s innocence, during Ms. Jeantel’s testimony the jury was subjected to uncomfortable unhelpful testimony by a young woman who if properly prepared would have drawn sympathy not just for herself, but for her dead friend. Ms. Jeantel’s testimony was the prosecution’s chance to humanize Trayvon, instead she became a distraction to that aim. [Watch: Rachel Jeantel, Cross + Re-Direct.]

Ms. Jeantel’s testimony set a negative tone and was a harbinger of the disastrous prosecution that would followed. Her being under-prepared to testify on direct and thoroughly unprepared to undergo cross-examination were both the fault of the prosecutors who called her to the stand. Still, if Ms. Jeantel were the only prosecution witness they failed to properly prepare, the prosecution might not have tanked so badly. But incomprehensibly, on each of three consecutive Fridays the prosecution ended each week worse than the one before. On Friday June 28, 2013 [trial day 5], the already struggling prosecution took a drastic turn for the worse. [Listen: J. Good’s 911 call.]

Jonathan Good was the state’s own witness, but his testimony sounded like it should have been elicited by the defense. Good testified that he saw Trayvon Martin atop George Zimmerman mere moments before Zimmerman shot Martin to death. Good was resolute, unwavering, articulate, and did not want to help Zimmerman; Good had every potential to be an absolute star for the state. What Ms. Jeantel was not, Mr. Good could have been- had Angela Corey’s prosecutors prepared appropriately. The embarrassing job by SA de la Rionda in direct-examining his own witness, particularly when compared to O’Mara’s excellent cross, was painful to witness for those wanting to see Zimmerman convicted. [Watch: J. Good full testimony.]

de la Rionda flailed so helplessly he seemed on the verge of impeaching his own witness, a witness who obviously wanted to assist in convicting a killer. Because the prosecution was so ill-prepared to question their own witness, defense was able to step in and turned yet another prosecution witness into an [unwilling, but effective] ally. Unfortunately for the prosecution, Jeantel and Good were hardly the only state witnesses whose testimony benefited the defense. The second week of trial was marred by a further parade of prosecution witnesses who did the state’s case more harm than good. The following Friday, July 5, capped off a second week of defense victories and prosecution shortcomings.10

On their final day of prosecution case in chief, the state may have intended to begin the day with medical examiner Dr. Shiping Bao and end the day with the testimony of Trayvon’s family. Apparently technical difficulties led to changing this witness order, but there are no acceptable excuses for such an atrocious final trial day. Given how poorly the preceding three weeks had unfolded, it was even more critical that the prosecution end on a strong note if they hoped to convict Zimmerman. The prosecution should have requested a recess or otherwise insisted that they end their case with Trayvon’s mother. [Watch: Sybrina Fulton testimony.]

As bad as it was that the prosecution allowed the jury’s last impression of the state’s case to be Dr. Bao instead of Sybrina Fulton, even worse was that the prosecution waited two full weeks to humanize Trayvon, to introduce him to the jury via his mother and brother. [Watch: Jahvaris Fulton testimony.] The state abdicated their duty to humanize Trayvon as the law permits, and instead allowed defense attorneys Mark O’Mara and Don West in their cross-examination of state’s witnesses to misrepresent Trayvon to the jury as a violent aggressor worthy of suspicion.

But since the state did wait a fortnight to introduce the jury to Trayvon, the prosecution should have rested their case on the powerful testimony of Trayvon’s brother, then mother. Instead, on the second Friday [trial day 9], the prosecution again headed into a weekend break on a terrible note, on the confusing combative testimony of medical examiner Dr. Bao, who behaved and sounded anything like the “expert” the state claimed he was. [Watch: Dr. Bao testimony.] {UPDATE: Dr. Bao was fired ~two months after FLvsGZ and filed a wrongful termination lawsuit in which he claimed that Angela Corey and the state of Florida intentionally “threw” the Zimmerman trial.11}

Witnesses Jeantel, Good, Bao, and the Fultons were just five of dozens of examples of the prosecution mishandling their own witnesses, thus further demonstrating the SAs’ Lack of Preparation. But unhelpful, uncooperative, confused, unprepared witnesses offering conflicting [their statements not only contradicted each other, but in the case of Dr. Bao, were internally inconsistent as well] were not the extent of the state’s failed prosecution. Hand in hand with their Lack of Preparation (both witness preparation, and otherwise), was this prosecution’s Poor Presentation.


 

Part III: Poor Presentation [of Evidence].

Poor Presentation does not mean absence of smoke and mirrors. While Bernie de la Rionda was an able and at times powerful orator, his colleague John Guy took charm to a new level: Guy seemed to step right off the pages of a John Grisham southern lawyering novel and into Judge Debra Nelson’s courtroom. SA Guy displayed memorable showmanship: from his passionate opening statement, to straddling the dummy on cross-examination of defense witness Dennis Root, to his closing rebuttal that evoked the spirit of Atticus Finch… SA John Guy was an excellent presenter. The problem was the prosecution’s failure to present a case for second degree murder.

The disastrous mishandling of three primary trial themes suggested that this prosecution had little insight into the (likely) human nature of their jury. The prosecution’s errors in FLvsGZ went far beyond style points evinced in their Lack of Preparation and Poor Presentation. From the vantage of those who think a conviction was warranted in FLvsGZ, Corey’s team led in court by de la Rionda made at least three major strategic errors, in how poorly they presented: (1) Zimmerman as a “wannabe cop”; (2) [racial] profiling; (3) Trayvon’s right to self-defense.

On each of these three key strategy points the prosecution took a wrong turn. Throughout FLvsGZ, the more the prosecutors aligned Zimmerman with the police, maligned [racial] profiling, and mischaracterized both Trayvon’s apparent character and his his probable actions, the more likely it seemed that the jury would turn against the prosecution, and/or side with Zimmerman’s weak claim of self-defense:

  1. Wannabe Cop. Instead of framing Zimmerman as a vigilante wanna-be-cop, prosecution should have spun Zimmerman’s aspirations as admirable, and used that to distance Zimmerman’s actions from those of actual honorable police officers.
  2. [Racial] Profiling. Instead of skirting around the issue of racial12 profiling, prosecution should have accepted Zimmerman’s profile of Trayvon as reasonable and then made the stark contrast of how although his profile itself was reasonable, his actions were not.
  3. Trayvon’s Right to Self Defense. Instead of waiting until closing arguments to insist that Trayvon had a right to self-defense, prosecution should have embraced the evidence suggesting that Trayvon may have been “winning” the fight instigated by Zimmerman’s actions, at the moment Zimmerman fired his gun, and used this to negate the defense’s expected claim of self-defense.

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Part III(A): Wannabe Cop.

Throughout FLvsGZ much was made by the prosecution of Zimmerman’s apparent interest in joining law enforcement. And throughout the trial Corey’s SAs mishandled this evidence in a way that strengthened the defense case, whilst undermining the state’s position that Zimmerman was a murderer. If, as the prosecution insisted, Zimmerman was behaving cop-like, then Zimmerman’s actions were more likely to be understood by the jury to be both morally and legally excusable.

In a trial where the prosecution’s own police witnesses were more beneficial to the defense than to the prosecution, it was particularly misguided to continually hammer home to the jury how much Zimmerman aspired to a career in law enforcement. During the trial this tactic was one that merited relentless criticism.

On Feb. 26, 2012 instead of making his neighborhood safer, Zimmerman made his neighborhood less safe. Every time the prosecution failed to make this distinction, instead dismissing Zimmerman’s law enforcement aspirations as trivial or unworthy of admiration, the prosecution decreased the possibility of convicting Trayvon Martin’s killer.

A prosecution committed to earning a guilty verdict, should have lauded Zimmerman for caring about his neighborhood, but then presented a sharp contrast: police officers take oaths to promote safety and seek to keep peace. Police officers acting within the scope of their duties follow protocol and apprehend suspects with non-lethal force; they do not disobey orders and craft fancifully embellished narratives to justify unjustifiable actions.13

As their case neared its close, the prosecution finally attempted to distinguish Zimmerman from actual police officers, but they did so only after nine straight trial days of all but enrolling Zimmerman in the Seminole County police academy. Every time the state of Florida associated Zimmerman with police, without emphasizing the relevant distinction, the SAs opened the door for the defense to capitalize on this critical prosecutorial misstep and to argue more convincingly for an acquittal.

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Part III(B): Racial Profiling.

Racial profiling may ultimately be inseparable from a discussion of moral justice as it relates to Trayvon Martin. But in the quest for legal justice, it is critical that the discussion move beyond the notion that Zimmerman’s “profile” itself was necessarily racist, unwarranted, or wrong. Corey’s prosecution seemed to attempt to convict Zimmerman for his unsavory thoughts.

But being probably racist and possibly paranoid is not against the law. The state of Florida should not be in the business of legislating thought or criminalizing feelings; prosecutors should not seek to regulate the activity of the mind by bringing charges based on sentiment. Zimmerman’s ‘profile’ of Trayvon is not the problem; what he DID with his profile is the problem. By focusing their attention on what Zimmerman thought, Corey’s prosecution missed the opportunity to convict Zimmerman based on what he actually did.

It is an unpopular sentiment, an uncomfortable notion, and it certainly isn’t politically correct, but: given the particular facts of this case, Zimmerman’s “profile” of Trayvon Martin was reasonable. Mine is a narrow point applicable only to the specific circumstances of this case, not about racial profiling on any grander scale: given what Zimmerman is believed to have known on Feb. 26, 2012, Zimmerman had sufficient reason to be suspicious of Trayvon Martin; it was even legally permissible to follow Trayvon initially.

Why was it reasonable for Zimmerman to find Trayvon suspicious? Because: if there has been a rash of alleged break-ins by teen boys you don’t know in your neighborhood at night, and you see a teen boy you don’t know in your neighborhood at night, it is reasonable to be suspicious. It is NOT reasonable to get out of your car, armed with a gun, stalk the kid, and shoot him to death- not even if that kid confronts you and reasonably asks why you are following him.

What the prosecution showed of Zimmerman’s thoughts does not equate to the ill will element of second degree murder: it equates to a reasonably suspicious man overreacting to insufficient stimuli to warrant unreasonable violence. The prosecution proved that a too vigilant man attempted (and failed monumentally) to protect his neighborhood. But as much as he was wrong about his ultimate conclusion, Zimmerman’s thoughts [his “profile” of Trayvon Martin] did not make his neighborhood less safe; his actions [what he did with the aforementioned profile] made his neighborhood less safe.

As a member of the neighborhood watch, Zimmerman was presumably tasked with monitoring his community and helping to keep both his neighbors and their homes more safe. Trayvon was an invited guest in the neighborhood; Trayvon’s father’s girlfriend was a resident of the neighborhood. Had Zimmerman merely thought Trayvon looked suspicious, Trayvon would not have been shot to death on Feb. 26, 2012. Indeed, had Zimmerman even gone beyond thought and merely called the police to express his suspicion, but refrained from exiting his car and (legally) following Trayvon, again: Trayvon would not have died that tragic night.

Six women were empaneled as the FLvsGZ jury: five white, most mothers, women ranging in apparent age from 30s to 60s. The prosecutors missed an opportunity throughout the trial to draw a meaningful distinction between reasonable profile and reasonable action. It is easy to imagine that prosecution’s suggestion that Zimmerman’s “profile” was wrong, might have been subconsciously objectionable to these jurors’ intuition.

In a more urban area where some jurors, especially ones of color, may express in voir dire that they have been victims of profiling, in such a setting it might make sense to play up [racial] profiling to engender sympathy for a deceased victim, as the prosecution did in FLvsGZ. But in this case, where jury selection did NOT yield a panel of women whose responses to the written jury questionnaire and oral questions in voir dire suggested that [racial] profiling was necessarily offensive to their likely sensibilities, it was a mistake to appeal to such notions that would probably isolate jurors.

The prosecution’s presentation not only suggested Zimmerman was a racist because of his suspicions, but in doing so they might as well have said point blank to their jurors: “Zimmerman was a racist because he was suspicious of Trayvon Martin. And if you would have been suspicious of Trayvon, if you might have locked your door or crossed the street or clutched your purse or wanted to call the police to report your suspicion… guess what? You are a racist too.”

What kind of ill-prepared poorly presented prosecution would dare play up such a divisive angle to that jury? Meanwhile, while Corey’s clueless SAs hammered home points that seemed destined to alienate their jury, wisely the defense team capitalized on prosecution’s failure to present Zimmerman’s profile as reasonable.

The relevant reasonable suspicion in FLvsGZ is not the corresponding legal standard. Reasonable suspicion here is what Zimmerman would have on Feb. 26, 2012, what six women could imagine themselves having in the same circumstances. Suspicion does not necessarily equate to fear, to believing Trayvon was likely a criminal, to feeling the need to absurdly follow him or call the police… but mere suspicion? Might not one or all of the jurors also be suspicious of an unrecognized teen strolling through their neighborhood at night?

If ever there were a moment during FLvsGZ when there was the greatest gap between the degree to which Corey’s prosecution seemed utterly lost, while the defense team showed they understood the likely nature of their jurors, it was during the testimony of defense witness Olivia Bertalan. Ms. Bertalan was a prior resident of the neighborhood in which Zimmerman shot Trayvon to death. In August 2011, some six months before Zimmerman killed Trayvon, Bertalan’s home was burglarized while she was home with her infant son; according to her, the burglars were two African-American teenagers. [Watch: Olivia Bertalan full testimony.]

In her obviously practiced (but not so rehearsed as to seem disingenuous) testimony, Ms. Bertalan told a chilling story of how she cowered in terror, hidden in the far corner of her baby boy’s nursery, awaiting the police’s arrival with 911 on the line, her other hand cradling her newborn son, all while a black teenage boy ransacked her home. What does that have to do with George Zimmerman shooting Trayvon Martin some six months later? Nothing, nothing at all. And yet, everything.

In only four minutes of direct examination, Bertalan looked earnestly into the eyes of jurors who looked like her, and her message was clear: in Zimmerman’s neighborhood, in February 2012, it was reasonable to be scared of boys that look like Trayvon.14

Though neither supposed trespasser who frightened Bertalan as she witnessed them casing her home, and certainly not the young man who was arrested for burglarizing the Bertalan residence was Trayvon Martin, the general age/gender/ethnic description of the alleged culprits matched Trayvon, generally. Does that mean Trayvon is any more likely to be a criminal? Of course not. But does that mean it is reasonable for someone seeing a person matching that age/sex/race description to merely be suspicious of the unfamiliar teenager? Yes.

The prosecution wasted its cross-examination of Bertalan inquiring about her social media presence and a television appearance a year earlier, instead of asking pointed questions for the jury that would highlight all the ways in which Bertalan’s actions when she was actually violated by a suspicious stranger were reasonable, while Zimmerman’s actions when he merely saw a suspicious stranger- were not. As ineffective as aligning Zimmerman with the police had been, SA Guy’s questions on cross heightened Zimmerman’s hero status and made the killer sound like someone who had come to the rescue of a damsel in distress.

As I am myself mother of a boy who demographically fits the description of the boys who allegedly victimized the Bertalans (my son is Trayvon’s age/size/race), I was livid at the defense’s brilliantly reprehensible tactic. The defense’s strategy to use a charming gentle young white wife and mom to show how reasonable it was for residents of that neighborhood to be nervous of unknown black teenage boys was savvy, fair, and entirely appropriate. It sickened me; it hurt my heart. And if I were representing Zimmerman, I would have done precisely the same thing.

In Olivia Bertalan, again it seemed that Corey’s prosecution was posturing for cameras, trying their case to the court of public opinion, whereas the defense tried their case to the actual empaneled jury. Had the prosecution embraced the idea that Zimmerman’s profile was reasonable, though his actions were not, they could have avoided isolating their jury into a position where if any juror was able to identify with Zimmerman’s reasonable suspicion, if any juror could empathize with pretty innocent Olivia Bertalan, she would have little choice but to acquit Zimmerman.

The prosecution should have maximized the opportunity to draw a stark contrast: Olivia Bertalan is a well-meaning woman, just like the jurors. She behaved reasonably; she did not ignore emergency dispatch instructions and take the law into her hands. Even though she was scared, she waited for the police instead of confronting or chasing the boys who scared her. Unlike Zimmerman, she had reason to not just be suspicious, but to be scared, and yet she still obeyed the 911 operator. Because that’s what reasonable people do: they call the police when they see a suspicious person or suspicious activity; they do not stalk/hunt/murder and then claim self-defense.

The prosecution effectively suggested to the jury that they- the jurors- were every bit as racist as George Zimmerman if they dared to be as suspicious as Olivia Bertalan and George Zimmerman were. The prosecution failed for three weeks to not only distinguish the illegality of action from permissible thought, but also failed to acknowledge that even if it makes us uncomfortable, even if it’s taboo, even if it’s politically incorrect to say so: Zimmerman’s profile was well within the spectrum of that which is reasonable. This unfortunate choice to chastise Zimmerman’s [reasonable] profile of Trayvon instead of embracing it, plus failure to use defense witness Olivia Bertalan (who looked like the jury, who shared life experiences with the jury) to highlight what is vs. is not reasonable thought vs. reasonable behavior, seemed destined to push jurors closer to acquittal.

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Part III(C): Trayvon’s Right to Self Defense.

*Newsflash*: Trayvon Martin might not have been a terrified helpless cowering angel after all. In addition to failing to properly contrast Zimmerman with an honorable actual police officer, on top of alienating jurors should they happen to identify with Olivia Bertalan and find Zimmerman’s profile of Trayvon as suspicious to be reasonable, the prosecution’s third major strategic presentation failure was ignoring the overwhelming evidence suggesting that at the moment he was shot to death Trayvon was apparently “winning the fight” with George Zimmerman.

The physical evidence, eyewitness testimony, and expert forensic testimony was overwhelming: Trayvon Martin was [probably] on top of George Zimmerman, when Zimmerman shot Trayvon to death. Although for more than a year much of America (i.e. most pundits, legal experts, cable news commentators) ignored this reality, it is unacceptable that Angela Corey and her state attorneys would bury their heads in the evidentiary sand as well.

Through cross-examination defense attorneys O’Mara and West elicited testimony from the prosecution’s own witnesses that supported the defense’s theory that Trayvon was atop Zimmerman. Not only did the prosecution in their case in chief fail to embrace this evidence and present it to their benefit, but they dared in cross-examination of defense witnesses to attempt to discredit one of the most believable, authoritative witnesses in the entire trial, Dr. Vincent Di Maio, the forensic pathologist who confirmed defense’s theory. [Watch: Dr. Vincent Di Maio testimony.]

The prosecution’s unconscionable denial of the forensic evidence concerning physical positioning of Zimmerman at the moment of Trayvon’s death was a dual forked danger. First, prosecution risked isolating attentive, smart jurors by denying evidence. But more problematically, by denying that Zimmerman very well could have been on the ground when he shot up at Trayvon, the prosecution missed the opportunity to characterize Trayvon as the evidence suggests he really was: more brave than scared, more strong than weak.

Of all the ways this prosecution infuriated me, their aforementioned failure to introduce Trayvon to the jury at all until the final day of prosecution case in chief [trial day 9] made me most angry. It seemed that the prosecution wanted to portray Trayvon as a child, a boy who’d just turned 17, not a young man on the verge of adulthood. This might have been wise if this characterization had matched the evidence presented at trial, or if the prosecution had even been consistent in this characterization.

But instead of consistently presenting Trayvon as a boy, de la Rionda frequently lapsed into referring to Zimmerman as “another man” [as if Trayvon was the first]. This shift in semantics would leave any attentive jury unclear as to just what the prosecution’s position was. More troubling is that while legally Trayvon was a minor child, a 17-year-old boy is a far cry from 7-year-old boy, and the evidence did not support prosecution’s attempted strategy to occasionally portray Trayvon as a helpless little boy, when the totality of the evidence seems to suggests that he was nothing of the sort.

By ignoring the very real possibility, based on the physical evidence that puts Trayvon atop Zimmerman in the final moments of their fight, that Trayvon was not as scared and fragile as prosecution would have us all believe, the prosecution essentially posited that Trayvon did not have the same right to self-defense as Zimmerman may have had. Although it was difficult to determine just what the prosecution’s theme was, it changed so sharply and frequently, more often than not the prosecution seemed to want the jury to believe that Trayvon was scared of Zimmerman on Feb. 26, 2012. And he might very well have been. Yet the evidence points to an alternate likelihood: that Trayvon was not nearly scared enough.

In a rare point of agreement from prosecution and defense, both agree: Trayvon did not run from Zimmerman. Incredulously, the prosecution attempted to frame Trayvon not running as him not wanting to lead Zimmerman back to the home where his younger soon-to-be stepbrother was waiting; defense counsel exposed the flaw in this far-fetched prosecution assertion by subjecting the jury to four minutes of timed silence illustrating the time in which Trayvon, out of Zimmerman’s presence, could have run home had he so desired.15

It was absurd of the prosecution to imply that Trayvon did not run because he was scared, as if he were frozen in fear. What makes more sense is that Trayvon did not run from Zimmerman either because he was not scared or, if he was scared, chose- as so many normal healthy boys his age would do- to pretend to not be scared. Maybe he was scared, maybe not. In either scenario, Trayvon is not the aggressor. Either way, the prosecution failed to explain to the jury why Trayvon’s decision to not run, directly counters Zimmerman’s claim of self-defense.

While the role of aggressor can alternate between persons during a physical altercation, the actual right to self-defense does not necessarily flip-flop momentarily from person to person based on who is perceived to be winning the fight at any given point in a conflict. So what if Trayvon confronted the man following him? So what if Trayvon was on top at the end of their confrontation? Neither takes away Trayvon’s right to self-defense and permits Zimmerman to use lethal force in response.

17-year-old boys have little ability to predict the consequences of their actions, much less should they have to worry that the neighborhood watch officer in their father’s girlfriend’s neighborhood is an armed killing machine. The prosecution’s stubborn insistence about highlighting profiling and emphasizing who punched first were red herrings. George Zimmerman became the aggressor when he exited his vehicle and began following a 17-year-old boy in the rain at night, and Zimmerman remained the aggressor all the way until he shot Trayvon dead.

As insulting as it was to suggest that Trayvon acted in a way that the evidence did not support, it was similarly detrimental to the prosecution’s case to ignore the forensic evidence plus testimony of both lay and expert witnesses that showed Trayvon was atop Zimmerman when he was killed. The evidence supports a conclusion that Trayvon at some point either waited, circled back, or otherwise rerouted to ask Zimmerman why he was following him.

It is exasperating that both the public and the prosecution seem to posit that Trayvon was some shrinking violent who would have run screaming for his life if only he weren’t frozen with fear. In response to Zimmerman’s expected claim of self-defense, the prosecution should have presented the jury with a narrative showing that even if Trayvon confronted the man following him, that alone does not justify Zimmerman shooting Trayvon to death.

At the end of the trial the prosecution finally acknowledged what they’d denied up until that point: that Trayvon may have been getting the better of Zimmerman when he was killed. It took 17 months, but finally the prosecution saw what those of us who’d been paying attention already knew: the evidence overwhelmingly tells a story that ends with Trayvon on top of Zimmerman just before he was shot dead. But by the end of the trial, again, it was too little too late.

The prosecution’s change of strategy, though it did finally match the evidence, was yet another example of Lack of Preparation, Poor Presentation, and perhaps worst: insulting jurors’ intelligence. If even the prosecution can’t settle on a single cogent version of events, one that matches their own evidence and their own witnesses’ testimony, how could any attentive reasonable jurors be expected to craft a narrative for guilt beyond a reasonable doubt that the prosecution itself could not?

Trayvon was a boy on the cusp of manhood, he was not a grown man, and on Feb. 26, 2012 he was a teenage boy minding his own business. But a boy minding his business is not immune from taking relatively adult actions like confronting the “creepy ass cracker.” [Watch: Don West cross-examines Rachel Jeantel re: ‘creepy ass cracker’.”]

One wonders, did anyone on the prosecution team know any 16 or 17-year-old boys? How adorably but ridiculously woefully dumb boys that age can be? If Trayvon is anything like my son, he felt irrationally invincible. That doesn’t mean Zimmerman gets to take a gun to a fist-fight. Based on their presentation at trial, Corey’s prosecution seemed to think that only if Trayvon was an angel who never swung first does he deserve our outrage or deserve to not be shot.

I do not know Trayvon Martin. But I read almost all the information that is publicly available about him. Based on his friends’ comments, his own social media posts, his text messages, court/school records, his family’s statements… Trayvon looks like a beautiful, warm, funny, bright, kind, talented, hard-headed boy. I confess my bias: what I read of Trayvon reminds me of my son, and that scares me. Like other boys his age Trayvon seems multifaceted, creative, occasionally rambunctious. Normal knucklehead boys should never be expected to know that when a stranger follows you as you walk home late at night, you should fear that any misstep on your part could give that stranger legal justification to kill you.

The evidence (collective, not just that which was deemed admissible for presentation to the jury) shows that Trayvon was a normal boy who loved his parents, cherished his brother and extended family… he was a good kid, had a good heart, did well in school… like other normal healthy boys his age he apparently occasionally smoked weed, got in a few age-appropriate fights, watched some porn online… It does a disservice to ALL our sons to act like Trayvon only deserves outrage if he was meek. We must stop acting like Trayvon was one-dimensional, as if only the slaughter of super-human angels merits our outrage.

The prosecution should never have attempted to give Trayvon posthumous sainthood, not just because it’s contrary to the evidence presented at trial, but because it dishonors a good kid to suggest that if he were brave enough to confront his pursuer, that he was somehow more deserving of a gunshot to the chest. It was bad enough that the prosecution waited nine full days to really introduce the jury to Trayvon, via the testimony of his mother and brother. But to compound that strategic failure, then this prosecution inexplicably waited until the end of the trial to suggest that Trayvon was entitled to assert his own right to be left alone, to walk home unimpeded.

In the face of directly contrary evidence, this prosecution (and indeed, many observers who consider themselves supporters of Trayvon and his family) ignored the multitude of compelling evidence that Trayvon could have thrown the first blow, could have confronted Zimmerman, could have been getting the better of Zimmerman at the end of the fight. None of that gives Zimmerman justifiable use of deadly force. Had the prosecution listened to their own witnesses, acknowledged the evidence, they very well could have convicted a killer. Corey is not responsible for the jury vote, but she is responsible for giving the jury enough to convict; on that her one duty, she failed.


 

Part IV: Closing Argument/Conclusion.

While there were myriad ways in which the prosecution did Trayvon an injustice by so inadequately prosecuting his killer, their failures can ultimately be classified as Lack of Preparation and Poor Presentation. From witness prep (or lack there of), to embracing the evidence (or rather, ignoring it), the state of Florida stumbled at almost every step of this trial after their strong opening statement. Their theory for conviction was weak, unarticulated, and unsupported; the strategic errors most lethal to their chances of conviction were how they mishandled the presentation of three distinct, but closely related key trial themes:

  1. Zimmerman’s law enforcement aspirations;
  2. Zimmerman’s [reasonable, racial] profile of Trayvon;
  3. the evidence that Trayvon probably did not run, likely confronted, possibly threw the first punch, and almost certainly was atop Zimmerman when Zimmerman shot him to death.

By failing on these three strategic prongs, the prosecution ceded all power to the defense team to craft the argument about reasonableness and, in turn, legality of Zimmerman’s actions. The prosecution proposed that Zimmerman was unreasonable from the start: unreasonable to want to be a police officer, unreasonable to patrol his neighborhood, unreasonable to be suspicious of a boy he didn’t know. But by misidentifying ways in which Zimmerman was, in fact, reasonable, the prosecution set up a scenario where if jurors disagreed and found any of those thoughts/behaviors reasonable, they had no reason to convict.

In the vacuum left by prosecution’s failure to present a compelling case for conviction, the defense team stepped in and presented their own cohesive, coherent version of events. O’Mara and West made it clear that nothing less than an outright acquittal on all charges would be a just verdict. To suggest, as so many demanding justice for Trayvon have, that the jurors were unjust in accepting the defense’s well-articulated theory, a theory that (unlike prosecution) never wavered, was crystal clear, and (again, unlike prosecution) actually matched the testimonial and forensic evidence- is as ridiculous as the prosecution’s case itself.

Though I am not remotely persuaded by the defense’s version of events as it pertains to self-defense, when O’Mara finished his impeccable closing argument, I absolutely knew what that version of events was. It defies logic to believe, based on the evidence [the totality of the evidence, not the evidence as poorly presented by this prosecution at trial], that Trayvon Martin was in any meaningful way the true aggressor on Feb. 26, 2012- even if he confronted the man following him, even if he perhaps swung the first blow at the man he may well have felt was hunting him that rainy February night. But can I see how six jurors could accept defense’s version of events? Absolutely.

Even without Zimmerman ever testifying, his attorneys [thru cross-examination of prosecution’s witnesses (a process that rendered almost all state’s witnesses more beneficial to the defense than to the prosecution who called them), direct and re-direct of defense witnesses, expert handling of forensic evidence, and an absolutely brilliant closing argument] presented a case for self-defense. If they were attentive, the FLvsGZ jury surely knew by trial’s end what the defense’s version of events was, and if they were going to follow the law, that defense version of events supported acquittal.

But the state of Florida never presented a plausible alternative story that was even consistent with the evidence, much less proven beyond a reasonable doubt in their case in chief. A smart prosecutor, one fighting for a conviction, makes 100% sure the jury knows their version of events, one that supports a guilty verdict. The prosecution failed in its closing argument/rebuttal to do so. The first time de la Rionda articulated an iron-clad linear case for conviction and theory for guilt was in the post-verdict press conference. Yet again: too little, too late.

As bad as the prosecution’s closing argument was [yes it was powerful, yes it was emotional, but it was not fact-based, did not summarize a case for finding guilt beyond a reasonable doubt, did not give jurors a roadmap to conviction], the defense’s was every bit superior. Defense closed by relying on more than just emotion; the defense relied on evidence to make their case for self-defense. Many observers insisted that defense counsel O’Mara was boring, professorial, but in fact his was the perfect contrast to a hollow prosecution closing.

Prosecution rebuttal was John Guy’s chance to finally (finally!) give the jury a coherent, linear, convincing case for guilt beyond a reasonable doubt. With apparent disregard for the principles of primacy and recency, prosecution had already opened their case with weak direct-examinations culminating in the unfortunate testimony of Rachel Jeantel, then closed both weeks one and two on increasingly disastrous notes. After ending both of the first two weeks in ways that should have embarrassed an office that claimed it was committed to convicting a killer, on the third Friday [final day] of trial, the prosecution had its worst day yet.

Despite the fact that at almost every conceivable turn the prosecution bungled this case, many court watchers held out belief until the bitter end that the prosecution might salvage a conviction. Perhaps those of us expecting a conviction were as naive as the prosecution itself? My prediction of a guilty verdict was born from sheer statistics; I almost always predict conviction, even when guilt has not been proven: even in Florida, state prosecutors win more than 50% of their cases.16 But when John Guy stepped into the well of Judge Nelson’s courtroom for the last word, the prosecution’s case ended as shamefully as it had proceeded in the preceding weeks.

So just what was the prosecution’s version of events? What was their theory of what precisely transpired on Feb. 26, 2012 that equated to second degree murder? I don’t know. I watched every televised second of the trial, thus being privy to far more than even the jurors would. Many of us paid rapt attention, took copious notes, but if we couldn’t discern the prosecution’s precise theory or theme, who could expect jurors to do so? Apparently: John Guy did. It was painful to listen to the prosecution’s rebuttal and hear the SA all but acquiesce that he had no case. Consider these excerpts, verbatim direct quotes from John Guy’s closing argument:

  • John Guy: “This isn’t a complicated case.”
    • Translation: “It’s so uncomplicated, that I’m not even going to articulate the prosecution’s theory. Ever.”
  • John Guy: “I don’t have any timelines.”
    • Translation: “I don’t have a version of events. I have no helpful demonstratives. Also, I’m less prepared than defense counsel.”
  • John Guy: “Use your common sense.”
    • Translation: “I have no theme of my case; please make one up for me. Just ignore the evidence and please vote guilty.”

In his rebuttal, though he was lovely and passionate and set my feminine heart all aflutter (I can only imagine at least one of the six female jurors shared my fondness for John Guy), despite his theatrics SA Guy was [substantively] no better in his prosecution rebuttal than his colleague de la Rionda had been in prosecution’s closing argument. Each time John Guy implored the jury to use their “common sense” in his closing rebuttal17, I cringed. By asking jurors to use their common sense (without explaining to them what a linear common sensical version of events that fit the legal definition of second-degree murder would be) he essentially implored the jury to do his job for them: he asked the jurors to fill in a story that he and his fellow prosecutors never satisfactorily articulated nor supported themselves.

What was so poor about presentation was not style, but was substance. The prosecution failed to present a minute-by-minute version of their story. You can’t leave that up to the jury and expect a warranted conviction. Contrast that with the defense team, who not only told their version in opening, and closing, and elicited it through [prosecution] witnesses, defense counsel illustrated their version with visuals and audio (plus poignant use of powerful timed silence in closing argument). The defense team brought their version of events to life, while the prosecution did little to lobby for the conviction of a dead boy’s killer.

Perhaps the prosecution miscalculated that a jury of all women, mostly mothers, would be more moved by emotion than argument? If so, an effective prosecution would have made sure to give the jury both. I do not mock John Guy for his poetic rhetoric; I criticize him because his emotional pleas were unaccompanied by legal arguments that matched the evidence and made a case for Zimmerman’s guilt beyond a reasonable doubt.

In one of their more ostentatious moments, prosecutors de la Rionda and Guy in their closing and rebuttal, respectively, spoke to the jury about what Trayvon “deserves.” de la Rionda and Guy meant a conviction, yet what Trayvon really deserved, after his tragic killing, was a prosecution that brought appropriate charges, that properly prepared witnesses and exhibits, who came prepared to present a coherent theory of the alleged crime to prosecute a killer. Trayvon deserved Angela Corey and her SAs to be attentive to the makeup of their jury, and to tailor their presentation and arguments accordingly. That is what Trayvon deserved in a Sanford, Florida courthouse; and from that, a conviction might naturally result.

Trial is a marathon, not a sprint. Unfortunately for those hoping to see Zimmerman convicted of murder for killing Trayvon Benjamin Martin, by the end of the prosecution’s case in chief de la Rionda and Guy had squandered all the momentum they had coming into the FLvsGZ trial. The political pressure and social outrage that led to an arrest were not enough to carry this prosecution to the finish line of conviction.

Until and unless each of the six women who voted to acquit speak out, we can’t know with certainty just what factors they would say most influenced the verdict. We can’t [yet] be sure if the jury accepted defense’s claim of self-defense [a claim I reject], or if they just thought prosecution failed to prove either charge beyond a reasonable doubt [as I insist]. Seeing overwhelming reasonable doubt in state’s case and excusing Zimmerman’s depraved conduct are not synonymous.

Had this prosecution adequately prepared for and presented a case of Zimmerman’s guilt beyond a reasonable doubt, I might join those lamenting the jurors unwillingness to convict after an effective, convincing prosecution. But that isn’t what happened in this trial. Far weaker cases than FLvsGZ have resulted in convictions, and if this verdict is unacceptable, if this verdict is unjust, that lies18 squarely at the feet of Corey, de la Rionda, Guy, and Mantei- NOT in the lap of six jurors who followed their oath and obeyed the law.

All style and no substance may often be enough to win a trial, but it wasn’t this time. Corey had more than enough evidence to convict Zimmerman of murder, or, had her SAs even bothered to make a case for it- which inexcusably they did not, manslaughter. The FLvsGZ prosecution failed miserably at the tasks of adequately preparing and appropriately presenting the evidence in a way to convince reasonable jurors of Zimmerman’s guilt, but it is wrong to blame any individual juror or the collective jury for the prosecution’s failed efforts.

Blame George Zimmerman for the unjustified killing of Trayvon Benjamin Martin. If you interpret acquittal as injustice, do not blame jurors: blame Angela Corey, Bernie de la Rionda, John Guy, Richard Mantei, and the state of Florida for this verdict. But do not blame these jurors. Do not boycott Florida.19 And please do not sign that asinine NAACP petition demanding a civil rights action or justice department inquiry into Zimmerman.20

Just because we may disagree with the jury’s vote does not make the verdict unfair; just because a killer walks free does not mean an acquittal was wrong; just because we are heartbroken at the outcome does not make the jury’s verdict an injustice. Based on the evidence as presented, the six women jury got this verdict right. And based on their Lack of Preparation, Poor Presentation, and strategic failures in the three key areas of (1) “wannabe cop”, (2) [racial] profiling, and (3) self-defense, the prosecution got it all wrong.

The state’s failure to convict George Zimmerman of anything, not of second degree murder as charged nor of the lesser included offense of manslaughter, might be forgivable if the prosecution had done a superior job and a rogue jury nullified. But that’s not what happened here. Corey’s SAs did not do a superior job; they barely even did a mediocre job prosecuting Zimmerman. And Corey’s failure to convict Zimmerman of anything is a failure of sufficient magnitude to warrant her removal from office. Trayvon deserves better; the state of Florida deserves better; we all deserve better than Angela Corey and the disastrous prosecution she led to an outright acquittal in FLvsGZ.

____________________
Elisabeth Epps graduated from the University of Virginia School of Law in 2011. Maybe one day she’ll put her super expensive legal education to good use. Until then, feel free to follow her, her trial coverage, and her tweets about far less legitimate topics than the law: @ElisabethEpps on Twitter.
____________________


 

Part V: Footnotes.

  1. State of Florida vs. George Zimmerman: SA No. 1712F04573 18th Judicial Circuit In and For Seminole County, Florida. Hereafter FLvsGZ. []
  2. …”Harvard Law Professor Alan Dershowitz says Florida prosecutor in Zimmerman case should be disbarred.” Huckabee. July 14, 2013. []
  3. …I do not [necessarily] suggest that Corey should have stepped to the podium and said, “We botched this. I mean, wow- we REALLY f’d this up,” (although they did). []
  4. …”M.E. Shiping Bao: FL Prosecutors Threw Zimmerman Case.” News One. Sept. 11, 2013. (Footnote added 9/15/13.) []
  5. …#KGvoice. []
  6. …2 states (Virginia, Colorado) + 1 District of Columbia. []
  7. …”Zimmerman’s Lawyer Opens Trial With Knock-Knock Joke.” Think Progress. June 24, 2013. []
  8. …No defense attorney would *permit*, but then again Zimmerman did give a ridiculous interview on Hannity with O’Mara by his side. Maybe the interview was over O’Mara’s kicking and screaming objection; or maybe O’Mara saw the Fox News interview as an opportunity to influence the jury pool in his client’s favor. Either way, ultimately if your hard-headed client is determined to speak to the media, #minuswell do it on a “friendly” network and absolutely better to have your attorney present. []
  9. …This question is probably rhetorical and/or sarcastic, or both. Either way, it’s tacky; snarky jabs have no place in civil discourse. []
  10. …Court recessed for the Independence Day holiday late on Wed. 7/3/13; trial resumed on Fri. 7/5; court was not in session on Thurs. 7/4. []
  11. …”Medical Examiner Shiping Bao Fired After Zimmerman Case.” CNN. Sept. 12, 2013. (Update + Footnote added 9/15/13.) []
  12. …Judge Nelson ruled that prosecutors were permitted to use the term “profiling”, but not “racial” [profiling]: “Judge bars some words in George Zimmerman murder trial.” LA Times. June 21, 2013. []
  13. …I am, of course, talking about the theoretical law-abiding honest cops. FWIW, I also believe in unicorns and Narnia. []
  14. …In one of many moments of sheer brilliance by Mark O’Mara, defense counsel never even mentioned Zimmerman during his 4-minute direct of Ms. Bartalan. Not once. When John Guy on cross-examination asked Bertalan about Zimmerman, O’Mara immediately objected, interrupting whatever momentum prosecutor Guy might have had and again showing that by this point the defense was in control of the trajectory of FLvsGZ, a trial that the state was by then losing at every juncture. []
  15. …Equally incredulous was defense counsel Mark O’Mara’s suggestion that any 17-year-old could have run a 4-minute mile (much less while wearing jeans and a hoodie, in the rain, on the phone, carrying candy and tea), easily one of the most ridiculous moments in the trial. But, unsurprisingly, the outmatched prosecution once again missed on the opportunity to exploit the defense’s mistake and highlight the impossibility of the defense’s scenario to the jury. []
  16. …[Insert link to statistics that I’m too lazy to look back up right now.] []
  17. …I lost count somewhere around a dozen. []
  18. …lies? vs. lays? Ugh. I never know. []
  19. …A boycott of Florida’s tourism industry would disproportionately affect the working poor and people of color, but that’s really another essay- one that’s irrelevant since we all know black people aren’t giving up Spring Break in Miami, Disney World, nor post-Heat parties in South Beach. Spare me. []
  20. …Why not? Briefly: The purpose of a civil rights action is to prosecute “hate crimes” where race is THE REASON (for a murder), not A FACTOR (in a murder). Having DOJ seriously pursue a Civil Rights claim here is waste of resources (time, money, attention)- both because it’s a loser of a case vs Zimmerman, and because it diverts those resources from legitimately deserving cases worthy of DOJ inquiry. If DOJ does press it, they will lose. What’s more, having black leaders demand that our black President and black Attorney General spend the end of this administration focusing on a non-Hate-Crime is a misstep. DOJ may be damned if they do, damned if they don’t, but it’s better to be damned if they don’t. AG Holder should take a cursory look at the Zimmerman case, decline to pursue it, and refocus his creative energies on crafting new ways to lie to the American people about Guantanamo. []

10 thoughts on “Florida vs Zimmerman: why the jury got it right, and how the prosecution got it wrong.

  1. Geoff Kagan-Trenchard says:

    On the defense council in GZ- I thought they did a great job of good guy bad guy. Mark O’mara rebounded off of Don West’s terrible opening joke. Made Mark look like a grown ass man and West the focus of any disgust. Who doesn’t feel bad for a friend with a Cheddar Bob haning on? To the jury, West might be a dick, but O’mara, he’s a reasonable guy.

    Good point on the under prep of the witness. Rachel could have been amazing. I think their biggest blunder regarding the evidence, I think I mentioned this before in a tweet, was the Prosecution let the image fight start when contact began rather than when GZ got out of the car. Once the Guy was holding up AN ALL BLACK DUMMY and mock wrestling with it, it was a wrap.

    I like that you are linking up that because the Prosecution tried to make GZ’s suspicion look unreasonable they force the jury into a critical racial analysis they were not going to have. They all totally grab their purses in an evaluator. Maybe even feel bad about it, but not so bad they stop doing it.

    After reading Terry v. Ohio, a similar idea struck me. The cop in Terry was not just any cop. He was something like a 20 + year vet who worked that area. And the accused weren’t just walking down the street minding their business. They had big out of season coats, were all men, looking at a women’s shoe store. This is LIGHT YEARS away from our current practice of the doctrine. I think this is the real crux of the problem with the RS standard when it comes to profiling. Profiling should not generally in a person’s skill set if they don’t work in law or related fields. The prosecution should have gone with the concept that some people get to profile. Some people get to use deadly force if they deem it necessary. But GZ wasn’t one of those people. He had attempted it and was rejected. Prosecution should have made the narrative more Taxi Driver and less Every Rogue Cop Movie Ever.

    • Elisabeth says:

      Geoff, Thanks for reading and thanks so much for the feedback. I don’t think I ever consciously thought about the color of the dummy- interesting point… And re: Terry, yes! I actually discussed this with a Prof. in law school. Fast forward to last summer, it’s triple-digit heat, and folks are posting photos of themselves in hoodies with the hood up. Their photos were captioned “Do I look suspicious?” All I cld think was: it’s two hundred degrees and you’re in a hoodie? Yeah, you look suspicious. Of course I know it was meant only in solidarity with TM, my son and I took a similar pic, but as a practical matter it just reminded me of Terry, as your comment has now done again. Great points, all. Thank you again for the feedback.

  2. Fox Forlenza says:

    Elisabeth,

    Wow! Just, wow! What a thorough and detailed look at the trial. You did an exemplary job of describing the many mistakes of the prosecution. Unfortunately, you are absolutely correct about the handling of this case as a whole. It made the entire justice system of Florida look like a sham, all because the prosecution and over zealous Angela Corey found their case in the media, not for the jurors.

    Until I read this piece, I hadn’t given much credence to the effect of the prosecution describing Zimmerman as a “wannabe cop”. They could have used that better to their advantage.

    As a citizen of Seminole County, FL living only 2 miles from where this happened, I followed this trial closely and cringed as the prosecution laid out their case. By the end of week 1, I knew they would have to make a major comeback or else risk putting it right into the defense’s hands. And I was right.

    I must admit, however, I was happy with the verdict for one reason only: Angela Corey. I had hoped it would be the straw on the camel’s back in getting her removed from office, or at the very least her resigning. Sadly, the woman’s ego and greed for power made that a moot point.

    Thank you again for allowing me to read this wonderful article. It had facts, opinions, and a little bit of humor (part re: Prosecution practically enrolling him in the police academy had me cracking up! (Of course, I hope you meant to add a little humor!)

    – Fox

    • Elisabeth says:

      Fox: many thanks for reading and many more thanks for such thorough comments. I did not realize you were in Seminole County… HOW does that woman still have her job?! I’m not being rhetorical; I genuinely do not understand. You all deserve better.

      re: police academy, with both that line and several of the footnotes I know I’m walking a fine line. Not for one second am I making light of any of this, but at the same time it feels like a bit of levity can help us keep our sanity while wrestling with such tragic situations. So I especially appreciate that bit of feedback bc I’m glad to know you interpreted that remark as it was intended: reflecting my exasperation at the unfathomably poor prosecution, but never ever making fun of this tragedy. I still can’t wrap my mind around what befell Trayvon that night.

      Thank you again for taking time to read and respond. It means more than you know. I sincerely hope we aren’t right back hear discussing another dead boy and another Corey failure a year from now.

  3. Jerry M says:

    So much of this is just spot on. I always felt the prosecution was going to have a difficult time disproving the SD narrative. After the verdict, I believed the acquittal was based on an exceptional defense and a prosecutor that over charged the case. So, I was partially right. Now I know why Angela Corey rubbed me the wrong way.

    Here’s something you missed. George had a conceal carry permit (assumably issued by the state of Florida). In order to get one, in FL, a certain amount of training is required. It goes beyond just how to shoot/when to shoot, and includes what to do/not do while carrying. Following a ‘suspicious’ character. at night, in the rain, would be example number 1 in any CCW class. Prosecution should have said something like: We KNOW GZ received training that emphasized descalating a situation when carrying a firearm. Was following TM a devaluation? We KNOW GZ received training on avoiding dangerous situations. Was GZ avoiding a dangerous situation by following someone he already deemed SUSPICIOUS down a dimly lit area, at night, in the rain?
    In other words would a reasonable man, with the training we know had to occur to get a conceal carry license, have acted the same way?

    Next, the only thing I think you got wrong was about how the role of aggressor flips back and forth. it absolutely can. I can site a case or 2 when I get home in a few days. That said, you definitely do not want to be the initial aggressor. We’ll never know who initial aggressor was. Wasn’t GZ for getting out of car and following. That was a legal (and stupid, idiotic) example of absolutely piss poor judgement. GZ could have hurled every racial epithet at TM becoming aggressor for ex.

    Role of aggressor can change based on who escalates from verbal to physical, to degree of physicality. I have a good list of criteria for how aggressor role can change but it is 300 miles away right now.

    Also note: Your John Guy translations required me to explain to my car-mates why I was laughing. I was not expecting to laugh while reading a legal analysis of a murder trial. Well played!

    • Jerry M says:

      And now that I’m home I can respond with some more detail, starting with defining an “aggressive” act. “An affirmative, unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences” US v Peterson, 483 F.2d 1222 (DC Cir. 1973).

      So that’s why I don’t think that Zimmerman’s following of Martin constituted his being the “aggressor” at that point. It was a lawful act. Although as I said, the Prosecution should have hammered the point that Zimmerman not only SHOULD have known that it was a bad idea, given his carry permit, and the required training, he DID know it was a bad idea.

      Now how could Zimmerman have been the aggressor? State v Effler 698 S.E.2d 547 (NC Ct. App. 2010) “A person is considered to be an aggressor when he has provoked a present difficulty by language or conduct towards another that is calculated and intended to bring it about”. We’ll never know whether or not Zimmerman said or threatened anything towards Martin because only one side of the story can be told.

      Finally, completely irrelevant to this case are steps in which the role of aggressor can switch from one person to another. One must first, stop fighting. Second is to withdraw and third, effectively communicate your intent to withdraw. If the initial aggressor can prove he did those 3 things, he ceases to become the aggressor. If the other party continues to fight, they become the aggressor. I suppose this is only tangentially related to the Zimmerman case. I recall at one point prosecutor Guy, arguing that Martin stopped fighting and was leaning away from Zimmerman at the sight of the gun. As I recall that argument didn’t receive much traction.

      • Elisabeth says:

        (@ your 2nd comment) Thanks for those citations Jerry. I recognized the case names but certainly did not remember their nuances until I just reread them right now. Thanks for that. You’re right. Of course self-defense can flip from person to person; I was wrong to oversimplify that. But just bc it can, does not mean it did here; the evidence does not support a reasonable conclusion that the right to self-defense passed like a baton from Trayvon to Zimmerman on 2/26/12. Similarly, and again you’re right both to correct me and to hold me to a standard of accuracy that a case of this magnitude deserves, status of aggressor can also pass from one party to another during a confrontation based on the factors you summarized. But, again, the evidence does not suggest that was the case here.

        My description of self-defense not flipping oversimplified a complex legal idea. What I mean though, and wished I’d stated more clearly and precisely, is that given the facts of this case Zimmerman’s claim is less plausible than the alternate interpretation of the evidence (which prosecutors failed to present). Let’s re-imagine this scenario: Nevermind who initiates contact and/or is the initial aggressor for just this moment. Fast forward to the terrible final moments of Trayvon’s short life. If Zimmerman were “winning” the fight, perhaps atop Trayvon, landing blows, and then Trayvon acting in his own self-defense was able to flip the scenario both literally and figuratively, so that then Trayvon was atop Zimmerman (as Good reported witnessing)… in that moment with Zimmerman, now on the ground and “losing”, the right of self-defense does not then *snap* transfer from Trayvon to Zimmerman in such a way that justifies the introduction of a firearm into what had until that point been a fist fight. (I find O’Mara and West’s clever proposition that Trayvon’s fists of apparent fury and/or the sidewalk were deadly weapons to be an effective suggestion, yet to defy credulity.)

        So perhaps the argument here is one more about reasonable force, bc given the circumstances [nearby lights are coming on, a man with a flashlight is walking up, people are hollering for them to stop fighting, multiple people are calling the police, whatever GZ claimed to have seen Trayvon reaching for in his waist band has yet to appear nor had any other weapon…] it was disproportionate responsive force in the moment GZ shot for him to do so, even if he were at that point acting in self-defense, which is not the conclusion that best matches the evidence (the actual totality of the evidence, not the evidence as presented incongruously by the state).

        I disagree with you that we’ll never know who the initial aggressor was. Yes, of course, barring some miraculously late discovered well-lit video from all angles with full audio beginning many minutes before GZ’s phone call and lasting unbroken until Trayvon’s death… no, we’ll never *know*. But the evidence gets us pretty close to knowing. Someone has to be the aggressor between Trayvon and GZ, and of the two, on balance, Zimmerman’s actions tilt that balance overwhelmingly in his own direction. The state failed to prove this.

        Indeed, otherwise legal actions can evince illegal aggression. Legal or not, GZ following Trayvon (and I agree with you that though ill-advised, it was an independently legal act) first in his vehicle and then on foot were acts of overt aggression. I don’t contend that those acts- getting out of the relative safety of a vehicle and following were necessarily singularly dispositive of GZ being the aggressor, but they are evidence of it. On the 911 call we hear GZ say that Trayvon looked like he was “up to no good, like he’s on drugs.” This boy that the evidence shows was walking home with candy for a middle schooler and to watch a game, looked like he was “up to no good.” Zimmerman’s words are not those of a man approaching Trayvon out of mere suspicious curiosity, they are words of an aggressor prepared for a confrontation likely emboldened by his loaded gun.

        If GZ’s 911 call is to be believed, Trayvon was “staring at him, something was wrong with him, he’s coming to check me out, I don’t know what his deal is.” But then… “he’s running [away].” So even if Trayvon had been going towards Zimmerman, according to GZ, the boy then turned and ran off. Yet when the dispatcher advises that they do not need him following Trayvon, Zimmerman dismisses that instruction and follows anyway. Disobeying a dispatcher and chasing a boy is not in and of itself illegal, but it’s the act of an aggressor. Then on the 911 call GZ says he doesn’t see Trayvon anymore, he indicates that he is actively searching for Trayvon: still the act of a continued aggressor.

        Given all of that, if and when Trayvon and GZ meet again and Trayvon asks Zimmerman (as Rachel Jeantel suggested) something like, “Why are you following me?”, Trayvon does not then become the aggressor. No, as you say, we don’t *know* what Zimmerman said to Trayvon, but given how many obscenely off base conclusions he’d already drawn and reported to 911, it’s a fairly safe bet that Zimmerman didn’t say “hey kid. I don’t recognize you. Been some odd characters and break-ins lately and I’m with Neighborhood Watch. Do you live around here? Would you like a ride home? Let’s get you out of this rain.”

        Whenever they met up, at that point GZ was hunting a boy who, according to GZ, had run away from him. Of the two, and it has to be one of them, the boy who GZ says is running away is not the aggressor, neither initial nor subsequent. When GZ finally finds Trayvon, that is when he finally encounters the boy he’s been searching for contrary to 911 direction, and if that boy then turns and even if that boy throws the first blow at the man who was hunting him bc he looked suspicious: Trayvon does not then become the aggressor. Legal aggression, as you remind, is about more than literal physical first contact.

        Zimmerman’s initial suspicion was reasonable. But his further suspicions, indeed conclusions, about Trayvon were not reasonable. If Zimmerman’s perceptions about Trayvon were so off-base (ie about him being up to no good, being on drugs [nvm the nominal marijuana, Zimmerman did not notice behavior consistent with a few nng of THC], reaching for a weapon in his waist band, that he was “looking at houses” [clear implication = casing for planned criminal activity])… if ALL these perceptions by Zimmerman were inconsistent with the available evidence, then how in the world could Zimmerman’s self-reported perception of his life being in danger somehow be a more reasonable conclusion than all his many misjudgments up until that point? And more importantly, why didn’t the prosecution use its opening, directs, crosses, objections, and closing to leave this question in the mind of the jurors?

        For our purposes here (ie weighing evidence to conclude who was the more likely aggressor), it does not now matter what GZ should/could have known that night. What GZ should/could have known/thought is absolutely relevant to a determination of self-defense, but is immaterial to this hindsight-benefited discussion of who was the aggressor. The evidence shows us that Chad Joseph had asked for Skittles, Trayvon was bringing those back to the house. He had a tea; he had headphones. He was on the phone with a friend. He was eager to get home in time to watch the All-Star Game. Contrast what we now know of Trayvon on 2/26/12, with what we know of Zimmerman. Zimmerman was then a 28yo man with (as you so well detail) extensive concealed carry instruction, with a loaded gun, who by his own words had decided the boy was not only suspicious- a reasonable thought, but was “up to no good.” He ignored 911’s guidance and followed, indeed searched for a boy who according to him had already run off. Those facts are undisputed. Of the two of them, one has to be the initial aggressor. All signs point to Zimmerman.

        Here the totality of the circumstances suggest that even if we can never know, we can reasonably conclude that the grown man with a loaded gun following, chasing, then searching for the 17yo (who was taking candy home to his dad’s girlfriend’s son, ready to watch ASG, on the phone with the girl, in the rain…) is the initial aggressor. What’s more, Zimmerman was an aggressor who did not deserve his actions excused as justifiable homicide or self-defense.

        You are wise to remind that we can’t know with certainty who was the initial aggressor, but ultimately that seems to be engaging in burden shifting. Because self-defense is an affirmative one, that burden were it asserted rests squarely with the defense. It is the defense’s job to prove that Trayvon was the aggressor, merely saying “we don’t know who the aggressor was” is insufficient to justify homicide. Your saying “we don’t know” should be then a strike against self-defense. Why didn’t the prosecution highlight this deficiency? It is the state’s job to disprove self defense; in order to do so they must teach a jury that Zimmerman was the aggressor and that Trayvon never ceded his own right to self-defense. It was the state’s job to lay out a case from opening to closing (vs just mentioning in closing) that Zimmerman not only did not have a right to self-defense in the moment he ended Trayvon’s life, but that even if he did, the force he used was infinitely (fatally) far too excessive to equal justifiable homicide.

        You saw the pictures. Yes, Zimmerman had a few cuts on that face and head of his. They don’t look serious, especially not when you consider the dense concentration of capillaries on the head tend to make even minor wounds seem more pronounced. Zimmerman was, evidently, not being beaten to death. Was not in *reasonable* fear for his life nor for significant bodily injury, not to a level that warranted shooting a boy dead. Neighbors were calling the cops, and calling out to Zimmerman and Trayvon. Police help was on its way and lay witnesses had already arrived. Even if the self-defense baton had passed to Zimmerman in those final moments, his actions went lethally beyond legally justified response of force. The prosecution did not make this argument. As you well know (but as most folks seem to have ignored), Zimmerman did not actually assert stand your ground. By not doing so, he forfeits the possibility of a legal right to respond with disproportionate force. A gun shot to the chest is not proportionate force to respond to being hit on one’s nose, or having one’s head hit the ground, certainly not when Zimmerman was the initial aggressor anyway.

        And that’s my ultimate point though Jerry. You in 2 (insightful, supported by law, thoughtful) blog comments did more to analyze self-defense than this prosecution did. All these ideas we are discussing are concepts that (in a less legalese way of course) should have been hammered home by this prosecution. Because more important than what thoughtful people like you and I might theorize about who was/not the aggressor, is that the Prosecution failed to make the proper evidence based legal argument to the jury that Zimmerman was the aggressor. Unfortunately for those hoping to see a conviction: Corey’s SAs didn’t even make or properly support this argument.

        No one can ever predict with certainty what any jury will do. But we can predict that, all other factors being equal, no jury can be reasonably expected to convict if a prosecution does not present a case that warrants a guilty verdict. The prosecution seemed to try half-heartedly at the end of defense’s case and in closing to finally properly address self-defense, but they did not lay out a case from jump that: 1) GZ was the initial aggressor; 2) Trayvon never became the aggressor; 3) Trayvon had a right to self-defense; 4) Trayvon never forfeited his right to self-defense; 5) even if Trayvon had been or had become the aggressor… even if Zimmerman had a right to self defense and Trayvon had forfeited his own… it was still disproportionate and legally inexcusable for GZ to shoot the boy dead. It is Point 5, setting aside 1-4, that the prosecution was obligated to prove and explain if they wanted to convict. The prosecution did not prepare their witnesses nor present the evidence in a way that laid out that argument to the jury. Which, amongst other reasons, is why Angela Corey needs to go. Yesterday.

    • Elisabeth says:

      Hi Jerry, Wow. A million thanks for reading and for such poignant feedback.

      I am familiar with GZ’s permit and training, and I really like the way you articulated those criteria. What you’re saying about GZ’s training falls right into line with the point I’d hoped to make about how the prosecution mishandled evidence concerning GZ’s law enforcement aspirations. Because you’re right, not only would a policeman following protocol and acting within the scope of his duties have handled the scenario differently and in a manner that would not lead to Trayvon’s death, but indeed, as you point out so well, no one with the gun permit and firearms training GZ who was acting reasonably would have acted as GZ did (from long before the physical confrontation).

      re: John Guy I actually live-tweeted about a dozen translations during his closing. He was so ridiculous. Smart, talented, but he was floundering. He had nothing at that point, and it was evident. Poor guy. (Bad pun intended.)

  4. I am floored by this spot-on, poignant analysis of the trial especially what the Prosecution did wrong. You pointed out so many things I’d blogged/tweeted about and it makes me feel good because for awhile I thought I was the only one who noticed. In the end, I felt the jury made the right decision but not because I thought GZ should get off, I didn’t. It was because the prosecution didn’t prove the case. You can’t convict based on feelings, you have to convict based on evidence. That’s the bottom line.

    I often go back to that moment when GZ made that fateful decision to get out of his car and pursue Trayvon. The police told him to stay put for a reason. They’re trained in this, he’s not and he should’ve known better. Also…if he was a “wanna be cop” with training and knowledge he would’ve known that. It was ego. There’s so much more I could say but what you didn’t already say, the rest covered. Every time I think about Angela Corey’s BS press conference after the fact, I get angry. She should’ve been tossed out on her behind!

    This was truly an amazing read. I enjoyed it from start to finish!

    • Elisabeth says:

      Jess, Thank you for taking the time to read and reply. You most definitely weren’t alone. Even almost a year later, I am sickened by what George Zimmerman did. My son is 17 now, the same age Trayvon Martin was when he was killed, the age Jordan Davis was when he was shot dead. I can undertand the legal issues, but I can never understand the depths of their mothers pain. Even though it will never bring their sons back, their mothers (and Floridians in general) deserve so much better than Angela Corey did in those trials.

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