Zimmerman: Dee Dee, Show Don’t Tell and The Importance of Listening

October 21, 2012

Whonoze asked the following question that I believe warrants a lengthy response, as it touches on a number of important issues about this case and lawyers in general.

He said,

Prof. L.:

If you were Zimmerman’s attorney, how would you handle the segment of DeeDee’s interview with BdlR in which, as I put it, “she offers to perjure herself.” Please review that segment of the recording. At ~15:51 into the interview, BdlR asks DeeDee if Trayvon said the man was coming to hit him just before the confrontation.

DeeDee: [very quietly] Yeah. You could say that.
SA d l R: I don’t want you to guess. Did he ever say that?
DeeDee: [after long pause, still quietly] How he said it, he just…
SA d l R: [interrupting] No, no. Do you understand? Did he say that or not? If he didn’t, that’s alright…
DeeDee: The man, he got problems. Like he crazy.
SA d l R: Trayvon told you that?
DeeDee: Yeah the man lookin crazy. Looking at him crazy.
SA d l R: When did Trayvon tell you that?
DeeDee: …He was walkin, before he say he was gonna run….
SA d l R: He said the guy looks what?
DeeDee: Crazy. And creepy.

Thus, despite BdlR’s admonition, DeeDee never says anything amounting to “No, Trayvon did did not say that,” but instead goes back to an earlier point in the conversation to bolster her assertion that Trayvon was afraid of Zimmerman.

Now, I do not care how anywhere here interprets this passage, or how they think it speaks to DeeDee’s overall veracity. I know that (and I mostly agree). But we are not going to be sitting on a jury in Seminole County FL, and we are not defense attorneys with an ethical obligation to present a zealous defense of George Zimmerman.

So, first, I would like an experienced defense attorney to role-play, evaluate this part of DeeDee’s statement to BdlR from a defense point of view, and imagine how you might use it at trial (if at all.)

Second, role playing a prosecutor, how would you prep DeeDee in anticipation of any strategies you think the defense might take?

My Answer:

I honestly do not believe Dee Dee offered to perjure herself in that exchange.

This appears to be a classic example of a witness having formed an opinion of what was happening in those final moments before the phone went dead. She’s struggling with attempting to differentiate between her opinion and what she actually heard Trayvon say or not say.

Thus, when “BDLR asks her if Trayvon said the man was coming to hit him just before the confrontation,” she answers

DeeDee: [very quietly] Yeah. You could say that.

BDLR picks up on her apparent uncertainty and says,

“I don’t want you to guess. Did he ever say that?”

She resists being pinned down to a “yes” or “no” answer because her opinion is based on more than what Trayvon said or did not say in those final moments.

For example, she knows Trayvon is a non-violent person who would never pick a fight with anyone and he had been expressing fear and describing strange, creepy and aggressive behavior to explain why he felt that way. She’s reviewing all of that preparing to tell him why she believes all of it can be summarized and expressed as a “Yes” answer to his question. In other words, she wants to supply context because context, rather than what he actually said or did not say in that final moment before the line went dead, answers the question everyone is asking.

She says,

“DeeDee: [after long pause, still quietly] How he said it, he just…

BDLR, who is not warm and fuzzy and lacks patience and an ability to listen, doesn’t “hear” what she is telling him. He interrupts.

“SA d l R: [interrupting] No, no. Do you understand? Did he say that or not? If he didn’t, that’s alright…”

Now, she realizes he doesn’t get it, so she tries to summarize it all by saying the man was crazy. She says,

“DeeDee: The man, he got problems. Like he crazy.”

BDLR is basically a bull in a china shop and he needs to develop some people skills.

Lawyers have an expression for context. We call it “totality of the circumstances.”

Story tellers have a rule for telling stories that they call “Show, don’t tell.”

Someone with some patience and listening skills needs to spend some time with her and tease out all of the specifics that she was attempting to identify and sort out before BDLR started pressuring her for a “yes” or “no” answer.

When she testifies, he needs to ask her to relate those specifics to the jury and leave out her opinion. What the hell does he expect her to say, when she wasn’t actually there and can only rely on what Trayvon told her and who she knew him to be?

Most of what Trayvon said to her, is admissible hearsay pursuant to the excited-utterance and present-sense-impression exceptions to the hearsay rule The rest is admissible non-hearsay because it will be offered to show his mental state, as opposed to being offered to prove the truth of the matter asserted in the statement.

BDLR needs to let her show, not tell.

When the defense inevitably attempts to pin her down on cross with the “yes” or “no” answer that BDLR asked, the jury will already have figured out what happened from the context that she supplied by showing rather than telling.

Her denial that Trayvon told her Zimmerman attacked him immediately before the line went dead becomes irrelevant because the jury, everyone else in the courtroom, and the world watching on TV will know that Trayvon did not have an opportunity to say anything when Zimmerman attacked him.

I used to spend a lot of time listening before I decided to do anything. It’s a good practice to develop and I do not believe very many lawyers have developed that skill.

BDLR seriously needs to spend some time working on it because he can be a hot mess without it.


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