State never proved its case, legal analysts say

 

dovalle@MiamiHerald.com

After five weeks of trial and 56 witnesses, few legal observers believed prosecutors came close to proving Sanford neighborhood watchman George Zimmerman committed second-degree murder when he shot and killed Trayvon Martin in February 2012.

So for many legal analysts, it was no surprise that jurors rejected even a lesser “compromise” verdict of manslaughter, acquitting Zimmerman outright of all criminal charges and deciding he acted in a reasonable way to protect his own life.

The acquittal was a stinging blow for prosecutors and their decision to file the second-degree murder charge against Zimmerman, who was not initially arrested by Sanford police after claiming self-defense. And it was a resounding embrace of the defense’s strategy during closing arguments not just to establish that prosecutors hadn’t proven Zimmerman guilty, but also to show he was “absolutely” innocent.

“Justifiable use of force is one of the most difficult areas of the law,” State Attorney Angela Corey acknowledged Saturday after Zimmerman’s acquittal. “Make no mistake, Trayvon Martin had every right to be on the premises as did George Zimmerman ... that’s what makes this case unique.”

Zimmerman defense attorney Don West Zimmerman defense attorney called the prosecution’s case a “disgrace.”

“We proved that George Zimmerman was not guilty,” he said.

Jude M. Faccidomo, the former president of Miami’s Florida Association of Criminal Defense Lawyers said the jury clearly believed in the right to self-defense: “Especially when cases are so gray, like this one was, self-defense really resonates because people can associate with being afraid.”

And while some also have questioned the state attorney’s office acceptance of a mostly white jury, a more diverse panel would have returned the same verdict, lawyers who have watched the case believe.

“After seeing the quality of the evidence presented by the state, the diversity of the jury really didn’t matter in the end,” said Larry Handfield, a prominent African American Miami criminal defense lawyer. “But it would have helped the community in giving more credibility to the decision to acquit Zimmerman.”

By now, the basic outline of the confrontation between the 29-year-old volunteer watch coordinator and the 17-year-old Miami Gardens student have become familiar through wall-to-wall television coverage and thousands of news stories.

Prosecutors said Zimmerman “profiled” Trayvon, who was returning from a nearby convenience store and was walking through the gated Retreat at Twin Lakes neighborhood where he was staying with his father.

Zimmerman called a non-emergency police number to report Trayvon as “suspicious.” A violent struggle followed on rain-slicked grass and a concrete walkway. During the confrontation, Zimmerman shot and killed Trayvon at point-blank range.

A look at the evidence shows why the jury rejected the state’s case. For prosecutors intent on proving the more serious charge, proving the “ill-will,” “hatred” or “spite” needed to convict on second-degree murder hinged on painting Zimmerman as a frustrated, would-be cop fed up with intruders in his gated Sanford community.

To do so, they focused on Zimmerman’s past — over defense objections — introducing evidence of his interest in law enforcement including a ride-along with Sanford police, a class on criminal justice, an unsuccessful application to a Virginia police department.

Prosecutors also played five calls to police that Zimmerman made in the several months before the shooting, in an attempt to show a pattern of “profiling.” They also introduced evidence about his membership at a mixed martial arts gym.

Their most important evidence to prove “ill-will” was Zimmerman’s call to a Sanford police non-emergency dispatcher when he first spotted Trayvon, saying “these a------ always get away” and, according to prosecutors, muttering “f----- punks” under his breath

“If there was ever a window into that man’s soul, it was that defendant’s words on that phone call,” prosecutor John Guy told the jury Friday in a poignant closing argument that appeared to have at least one juror emotionally strained.

Guy’s closing argument was typical of a state’s case that drew heavily on emotion and emphasized the youth of the victim, as well as one of the most important witnesses: Trayvon’s friend, Rachel Jeantel, 18 at the time of the shooting.

She was speaking to him by phone moments before he died and recounted her recollection that Trayvon told her someone was following him.

Jeantel told jurors that Trayvon told her of a “creepy-ass cracker” watching him as he walked home from the convenience store, and of hearing the man angrily demand to know what Trayvon was doing in the neighborhood.

Jeantel said she then heard a bump that she assumed was Trayvon’s cell phone headset hitting the ground, followed by Trayvon’s voice: “Get off! Get off!”

Her testimony was not polished or articulate, and she sparred for hours with defense attorneys — at one point crying “what!” when told she had to return for a second day of testimony. But her story remained unchanged.

“I thought she was a good witness. I thought the jury would be sympathetic to her because she was an [18]-year-old kid, she was inexperienced at testifying and that made her come across as credible,” said Miami defense lawyer Andrew Rier.

In the end, though, her testimony clearly wasn’t enough.

Zimmerman’s prosecution was made tougher under Florida’s 2005 Stand Your Ground law, which eliminated a citizen’s “duty to retreat” before using lethal force in the face of a deadly threat — an instruction given to jurors on Friday.

And the state’s case was filled with blunders, legal experts say.

Many of the witnesses called by the state seemed to benefit the defense, including one neighbor, John Good, who claimed he saw Trayvon pin Zimmerman to the ground. Another witness, Sanford Police officer Tim Smith, told jurors that Zimmerman, just after the shooting, claimed he was yelling for help to no avail. Both pieces of testimony seemed to bolster the defense’s version of the encounter.

Prosecutors also called the lead Sanford police investigators, using them to introduce each of Zimmerman’s videotaped statements and a walk-through of the crime scene Zimmerman did with police a day after Trayvon’s death.

During one of the statements, lead Detective Chris Serino seemed skeptical when Zimmerman insisted he never “followed” Trayvon. While there were some inconsistencies between his accounts of what happened, they seemed fairly small, court observers said. And defense attorneys got Serino to agree during testimony that it’s normal for stories to vary slightly with each re-telling.

Legal observers noted that playing the videos in court eliminated the need for Zimmerman himself to take the stand — a tactic that may have helped the defense by allowing Zimmerman’s voice to be heard in court without risk of cross-examination.

“I think it was a strategic error [for the state] to allow him to testify without getting cross examined,” Faccidomo said. “I don’t think the inconsistencies carried as a great a weight with the jury as they thought it would.”

Serino, on defense questioning, also suggested he believed Zimmerman’s account, a statement later stricken from the record by the judge — but nevertheless heard by jurors.

“The state should have objected before he had a chance to answer,” said attorney Handfield. “But it’s too late. You can’t unring the bell. You can’t ask the jury to not consider something they already heard. They’re human.”

Prosecutors also pinned their hopes on a chilling recording of a 911 call made by a neighbor near the fight scene.

After a number of hearings away from the jury, Nelson ruled against prosecutors’ request to allow audio experts to testify that Trayvon was the one crying out for help on the recording before the fatal gunshot is heard. So prosecutors turned to Sybrina Fulton, Trayvon Martin’s mother, and Jahvaris Fulton, the dead teen’s older brother, to identify the voice on the recording as Trayvon.

They served as powerful emotional witnesses. Sybrina Fulton, head held high, told jurors that she wished that her son hadn’t died. “My youngest son is Trayvon Benjamin Martin,” she articulated carefully when asked his name. “He’s in heaven.”

And Jahvaris Fulton recounted for jurors the shock and grief of listening to the recording for the first time.

But their testimony also seemed to spur the defense to call a wave of eight witnesses, from Zimmerman’s own mother to his best friend, to make the opposite claim, that the voice crying out for help on the tape was Zimmerman’s. The testimony also served a more important purpose: to humanize Zimmerman and show a circle of friends that included an African American neighbor.

In the end, neither the state nor the defense dwelled at length on the recording in closing arguments.

“A battle of family members, of whom you believe more, that’s a big prosecution loser,” said Jean-Michel D’Escoubet, a former Miami-Dade prosecutor. “The evidence was so conflicted that the jury can’t make heads or tails of it. It just muddied up the water and created reasonable doubt.”

The defense case suffered some setbacks too, especially when Nelson on Wednesday refused to allow into evidence text messages from Trayvon’s phone which suggested that the teen was a brawler at home in Miami Gardens. Nor did the judge allow the jury to consider as evidence a high-tech computer animation showing a defense version of how the deadly fight between Zimmerman and Trayvon unfolded.

But in all, lawyers say, the defense presented a mostly confident, methodical case that sought to pick apart the lack of evidence in the state’s case.

Lawyers Mark O’Mara and Don West even shunned the chance to tarnish Trayvon though Nelson had allowed the defense to introduce the slain teen’s toxicology report showing he had smoked marijuana.

“The state would have argued that marijuana doesn’t make someone hostile, and the defense probably didn’t want to look like they were disparaging Trayvon Martin,” said John Priovolos, a Miami criminal-defense attorney.

Their approach was evident at closing arguments. While prosecutor Bernardo de la Rionda was mocking and at times shrill, O’Mara was calm and conversational, opening with a long, professorial discussion on the history of trial law, then dissecting the state’s case.

Zimmerman’s neighborhood watch history? “Tell me one witness who said George Zimmerman patrolled that neighborhood ... not one,” he told jurors.

The sound of the wind on Zimmerman’s call to police, suggesting he was chasing Trayvon? The weather report shows “the wind was up,” O’Mara said.

The belief Zimmerman was the aggressor? “One piece of evidence that my client attacked Trayvon Martin?” O’Mara asked jurors. “Landed one blow even?”

Miami defense attorney David O. Markus said that the closings arguments offered something of a role reversal for prosecutors and the defense.

“The initial summation by the prosecution was what you see many times from defense lawyers — passionate and trying to poke holes or raise doubts in Zimmerman’s version of events,” he said. “On the other hand, the defense accepted the burden of proof and methodically and dispassionately went through the evidence and the elements, much like a prosecutor would normally proceed.”

The acquittal vindicated O’Mara’s strategy. He not only maintained that the state hadn’t proven its case beyond a reasonable doubt, but riskily admitted he wanted to take on the “burden” of proving his client’s “absolute innocence.” He even wished, half-playfully, that the verdict form has a check box for “completely innocent.”

Under the law, the defense has no burden to prove anything. Only prosecutors must prove a case, beyond a reasonable doubt.

“I really like the strategy,” Markus said. “Many times, cases come down to whether you can show the jury that you really believe in your client. What better way to do that than to tell the jury that you aren’t relying on burdens of proof but instead that you believe he is innocent?”

Miami Herald Staff writers Audra D.S. Burch and Evan S. Benn contributed to this report.

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