Jury to decide whose voice on 911 call in Zimmerman case

06/22/2013 10:48 AM

06/22/2013 3:02 PM

Jurors will listen to a recording of the chilling 911 call that captured the distant, fearful cries in the vicious outdoor fight between George Zimmerman and Trayvon Martin.

But the jury in the closely-watched case won’t hear from two prosecution audio experts who suggested that the voice screaming out in fear belongs to Trayvon, a Seminole County judge ruled Saturday in a decision some legal observers called a significant blow to the prosecution two days before the trial opens.

Testimony from the experts, Tom Owen and Alan Reich, both of whom analyzed a 911 call made by a neighbor, could have been important evidence for state prosecutors because it would have helped portray Zimmerman as the aggressor.

The neighborhood watchman is accused of second-degree murder in killing Trayvon, an unarmed teen from Miami Gardens, during a confrontation inside a gated Sanford community in February 2012. The Sanford police department’s delay in charging Zimmerman, who claimed self-defense, sparked large civil rights rallies in Sanford and drew worldwide headlines.

With a jury now sworn in after two weeks of jury selection, opening statements are scheduled to begin Monday morning.

Prosecutors, in charging Zimmerman, say the 29-year-old “profiled” 17-year-old Trayvon, who was visiting his father in Sanford and was returning from a convenience store that night.

The ruling by Seminole Circuit Judge Debra Nelson does not bar testimony of others who may be able to identify the voices on the recording. That could include testimony from Trayvon’s mother, Sybrina Fulton, who initially identified her son’s voice on the recording and is listed as a witness in the case.

Benjamin Crump, the Martin family attorney, downplayed Saturday’s ruling, pointing out that Zimmerman himself told a police detective that the screams on the recording did not sound like him.

“This ruling is not a blow to the prosecution,” Crump said, calling the evidence against Zimmerman “overwhelming. “The jury can use their common sense in this matter along with all the other evidence. I don’t think it will affect the case.”

Zimmerman defense attorney Mark O’Mara has long said he wants jurors to decide what they hear on the 911 call for themselves.

And in another last-minute legal twist, Zimmerman’s defense team - in an issue to be taken up Monday - is asking the judge not to ban “hearsay” statements Zimmerman allegedly made to people in the minutes after the shooting.

“Mr. Zimmerman spontaneously stated that he had yelled for help and that no one helped him,” a defense motion said Zimmerman told a Sanford patrol officer just after the shooting.

But on the ruling issued Saturday, some legal observers called it a considerable win for the defense and a good move by the judge because the issue could have been reversed by an appeals court if Zimmerman is convicted.

“It’s a big score for the defense,” said Miami criminal defense lawyer Terry Lenamon. “Why muddy up the waters with science that is new, novel and not generally accepted, especially in a high-profile case? It was a smart move by the judge.”

Former Miami-Dade prosecutor Matthew Baldwin said that while the ruling is a setback for prosecutors, dueling experts at trial often cancel themselves out in the jury’s view.

“The practical reality is that juries often give the most weight to their own opinions when it comes to evaluating this kind of evidence,” Baldwin said. “Since they can listen to the tape as often as they want when they deliberate, their playing Sherlock Holmes is inevitable.”

The judge’s decision on the audio experts was highly anticipated.

Previous hearings on the experts, heavy on scientific jargon and explanations of computer software and national standards, unfolded during five separate days over the past two weeks, concluding Thursday afternoon.

One expert, Reich, claimed in his report that he hears Zimmerman say “these shall be,” which he calls a “seemingly religious proclamation,” while Trayvon, scared and in a high-pitched voice, screams, “I’m begging you,” just before the shooting.

The other expert, Owen, used computer software to analyze a four-second snippet of cries. He compared it to a sample of an audio clip of Zimmerman, and concluded the voice on the 911 call did not belong to him. He could not say the voice belonged to Trayvon.

In an effort to keep the testimony from being used as evidence for jurors to consider, Zimmerman’s defense team challenged the reliability of the science involved. During the hearing, defense expert James Wayman testified that Owen’s methods were “fundamentally flawed.”

During arguments over the motion to exclude the testimony, defense attorney Don West mocked Reich’s report, saying it showed Trayvon and Zimmerman “having a conversation” and that the document should begin, “It was a dark and stormy night.”

Both experts had rendered opinions about the recording for newspapers before they were hired by the State Attorney’s Office.

In her 12-page order, sent via e-mail Saturday to the lawyers in the case, Nelson found that the methods the two men used to analyze the audio were not generally accepted in the scientific community.

“There is no evidence to establish that their scientific techniques have been tested and found reliable,” she wrote.

She singled out Reich, saying his report to the prosecution, which differed from one given earlier to a newspaper, “would confuse issues” and “mislead the jury.”

And she hinted that Owen might not have been completely objective in reaching his conclusion after he “acknowledges he markets and has a small financial interest in the software program he utilized.”

Nelson also pointed out that one expert, FBI communications analyst Hirotaka Nakasone, said the audio was too poor to compare to voice samples. For a scientist to claim to have identified the voices on the recording was “disturbing,” he said.

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