Liveblogging Michael Dunn trial defense case

February 11, 2014

Tuesday, February 11, 2014

Good morning:

We will be live blogging the Michael Dunn trial today and watching the proceedings via live stream link at First Coast News.

I recommend opening two browser pages, one for the blog and the other for the live stream. Size each one half-size so that you can view them side by side.

Court resumes at 8 am.

We are in the defense case.

Defense has possibly 2 more witnesses to call:

Doctor John Abuso, who is supposedly an expert regarding reactions by juveniles to extremely stressful situations, and possibly the defendant.

Here’s my take on Dr. Abus, who would presumably testify that fleeing from a shooting scene and ordering a pizza after attempting to kill four teenagers in an SUV is a normal human reaction (H/T to Lurker for the snarky remark):

Many thanks to Blushed Brown for providing a link to John Abuso’s website.

He has a D.Min after his name that I assume to be a Doctor of Divinity. He also claims to be an ordained minister.

Where he went to school to obtain his degree is not listed.

He lists no articles published in professional peer reviewed journals.

He claims to be:

Lic. Marriage & Family Therapist
Clinical Member AAMFT
Clinical Member ATSA

AAMFT is the American Association of Mariage and Family Therapists.

ATSA is the Association for the Treatment of Sex Offenders

He also claims to have received advance training in Ericksonian hypnotherapy.

I am not seeing any evidence of a scientific or medical basis to what this man does.

By almost any standard that I can imagine, this guy is not qualified to express a science or medical based opinion regarding any matter in this case. Therefore, his testimony should be excluded under Rule 702 as not helpful to the jury to decide an issue of that nature in this case.

Because there is no evidence of self-defense admitted into evidence, I do not believe Judge Healey will give a self-defense instruction unless Dunn testifies.

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Zimmerman: Day 8 Liveblogging Jury Selection Completed

June 19, 2013

Wednesday, June 19, 2013

Good afternoon:

We have completed liveblogging the 8th day of jury selection.

Bernie de la Rionda spent the day teaching and indoctrinating the panel of 40 prospective jurors (PJs) with the legal foundation of the case that he will present to them in opening statement. Judging by their reaction, he succeeded in building rapport and trust.

The defense has a big mountain to climb tomorrow.

Bernie used a mixture of one-at-a-time voir dire as to the entire group and then switched to what we used to call the Donahue Method after the former TV host, Phil Donahue.

We would never have been allowed to conduct a classroom style multiple-hour education of the panel regarding legal principles as Bernie did.

Judges instruct on the law, not lawyers.

Voir dire means to question.

During his initial questioning of the panel, he asked each individual juror how long they had lived in Seminole County and Florida, their marital status and children, and what they liked to do with their spare time.

Then he used the Donahue Method to question the panel of 40 as a group on the following subjects:

1. Knowledge of the defendant, lawyers, court personnel and witnesses to be called;

2. Familiarity with TV programs about forensics, cops and the law;

3. Difference between direct and circumstantial evidence;

4. Whether anyone was arrested and prosecuted for a crime;

5. Victims of crime, particularly violent crime;

6. Experience with Neighborhood Watch programs;

7. Whether anyone believes they have the right to take the law into their own hands;

8. Whether anyone believes any person by reason of wealth, education, employment, gender, race, ethnicity, religion, age, language or dress should be treated differently under the law;

9. Whether anyone has been a witness before or served on a jury;

10. Member of law enforcement or knows someone who is;

11. Whether anyone has medical experience or knowledge;

12. Owns a gun, has a license to carry concealed, NRA membership;

13. Whether people who own guns have a responsibility to learn how to use them;

14. Whether anyone is a fitness freak or trained fighter or been in a fight;

15. Whether anyone has special knowledge or training in cell phones, phonetics, linguistics, or DNA testing; and

16. Whether anyone would not be able to look at gruesome photographs for their evidentiary value.

No one was excused today although I believe 2 PJs should be excluded for financial and familial hardship, especially since the trial is expected to last 2-4 weeks and the jury will be sequestered. Both are Hispanic.

B-29 is a married mother with 8 children at home. The oldest is 22. She works as a CNA. She is juror #2 in the box and would be replaced by B-51, a retired white female from Oviedo with a dog and 20-year-old cat. Knows a good deal about the case, but said “I’m not rigid in my thinking.” She moved to Florida from Atlanta and was the Director of a call center for 1,200 employees.

P-67 is an auto mechanic whose job might not be there after the trial. He is 22nd on the list of 40.

The defense will voir dire tomorrow starting at 9 am EDT.

If the defense has not completed questioning the PJs by 2 pm, Judge Nelson will excuse them for the day in order to resume and complete at least the evidentiary portion of the Frye hearing. The prosecution will be presenting one rebuttal witness, Tom Owen.

I doubt she will be ready to issue her decision at the conclusion of the hearing, so look for it early next week, probably Monday.

I will see you all tomorrow morning at 9 am EDT.

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Zimmerman: Day 6 of Jury Selection Completed

June 17, 2013

Monday, June 17, 2013

Good evening:

Judge Nelson just recessed court for the day at 8:30 pm EDT after a very long day in court.

Day 6 of jury selection concluded at 4 pm. Counsel questioned 8 prospective jurors (PJs), 4 were excused for cause.

The 4 who were passed for cause on the hardship and pretrial publicity issues are H7, H18, H29 and H35.

They join the pool of 29 PJs (Total 33).

Here is the updated list of 33 PJs for your scorecard:

1. B-12 F 40s-50s White
2. B-29 F 40s Black
3. B-76 F 50s-60s White
4. B-7 M 40s-50s White
5. B-35 M 40s-50s Black
6. B-37 F 50s White
7. B-51 F 60s-70s White
8. B-55 F 20s E. Indian
9. B-86 F 50s White
10.E-6 F 20s-30s White
11.E-40 F 50s-60s White
12.E-54 M 60s-70s White
13.E-73 F 60s White
14.M-75 F 30s Black
15.B-61 F 20s White
16.B-72 M 20s White/Bi-racial
17.E-22 F 50-60 Black
18.E-13 F 20s White
19.E-28 F 50s-60s White
20.K-80 F 40s-50s White
21.K-95 F 40s-50s White
22.P-67 M 40s-50 Hispanic
23.G-14 F 40s-50s White
24.G-29 F 30s Black
25.G-47 M 20s White
26.G-63 M 20s Mixed
27.G-66 F 50s White
28.G-81 M 30s-40s Black
29.H-6 M 30s-40s White
30.H-7 M
31.H18 M
32.H29 M
33.H35 F

Judge Nelson wants to get a pool of 40 PJs passed for cause on hardship and pretrial publicity before she switches to group voir dire.

She will gather that group together seating the PJs in the jury box, and subsequently the benches, in the order in which they were called and likely instruct them to raise their hands indicating an affirmative answer as she asks a series of questions, pausing to record each PJ’s affirmative answer to each question.

For example, she might ask for a show of hands by each PJ who has been a victim of a crime and write down each PJs number who raises their hand.

After she completes her list of questions, the lawyers, starting with Bernie de la Rionda, will question the first PJ on the list (B12) regarding each question she answered affirmatively. After both lawyers have finished with B12, they will pass or challenge her for cause. If she is excused, she will be replaced in the box by PJ B51 (she is 7th in the order).

This process will be repeated with B51 until she is passed or excused for cause. If she is excused, her seat will be taken by B55. If she is passed, the lawyers will question B29, the PJ in the second seat in the box.

This procedure likely will be followed until 30 PJs have been passed for cause.

Then the lawyers will exercise their peremptory challenges, which is usually done secretly with the lawyers passing back and forth a sheet of paper alternately listing a PJ number until one or both sides exhaust their allotment of peremptory challenges.

If one side accepts the jury of 6 before exhausting their peremptories, they retain the right to use a peremptory challenge to excuse the PJ who replaces a member of the jury struck by their opponent after they accepted the jury.

In other news today, the defense rested its case in the Frye hearing after calling Dr. James L. Wayman.

Dr. Wayman testified that science does not have the capacity yet to identify who screamed in the background of the 911 call or identify anything said.

In a surprising development, Don West may have provided him with a document that does not describe the test that Tom Owen conducted thereby rendering Dr. Wayman’s criticism of Owen’s results irrelevant.

The State is going to call Owen to the stand in rebuttal on Wednesday at 4 pm after the court concludes jury selection for the day.

Jury selection resumes tomorrow morning at 9 am EDT.

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Expert opinions about the death shriek are admissible at trial

June 9, 2013

Saturday, June 9, 2013

Good afternoon:

The defense presented the testimony of two expert witnesses yesterday, Dr. Peter French from the UK and George Doddington from the United States, who agreed with Dr. Nakasone of the FBI Crime Lab that there is insufficient information in the background of the recorded 911 calls with which to form an opinion regarding whether Trayvon Martin or George Zimmerman uttered the terrified death shriek.

The three experts also agreed that there is insufficient information to support an opinion regarding whether there are any identifiable words or phrases in the background of those calls.

Note that the three experts have described the prosecution and defense effort to rely on expert witnesses to identify the source of the terrified death shriek, as well as any words or phrases that either of them might have used, as an absence-of-evidence problem. That is, they agreed that the methodologies used by the prosecution experts are generally accepted by audiologists and neither novel nor new.

This conclusion is all that is required to satisfy the Frye rule, since the rule is a counting-heads test that establishes a threshold requirement or legal foundation to introduce an expert opinion that is based on a novel scientific theory or new methodology. The expert’s conclusion is irrelevant.

In other words, there was no need for a Frye hearing since the prosecution experts based their opinions on long accepted methodologies. Therefore, their opinions are admissible.

How much weight should be accorded to those opinions is a separate issue that only the jury can decide.

Defense counsel have focused their effort during the Frye hearing on attacking the validity of the opinions expressed by the prosecution experts. They are going to have to repeat that effort during the trial.

I predicted long ago that expert opinion regarding who uttered the terrified death shriek would not play a significant role in the outcome of the trial.

If I were arguing the State’s case to the jury, I would emphasize the strength of the circumstantial evidence that proves Trayvon Martin uttered the shriek. I would briefly add that the conclusions reached by the prosecution experts independently confirm the circumstantial evidence.

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If I were the judge l would admit expert opinion evidence regarding who uttered the death shriek

June 6, 2013

It’s important to remember that every scientific principle, law, or methodology that is generally accepted in the scientific community today was once a novel theory or new methodology.

The process by which these novel theories and new methodologies become generally accepted in the scientific community can take many years.

It can be extremely frustrating to have to wait for general acceptance to develop in the scientific community when a pressing need exists to use a novel theory or methodology to solve crimes as was the case with applying DNA testing to solve otherwise unsolvable crimes or to hold a pharmaceutical company liable for birth defects that mighth ave been caused by anti-nausea medication prescribed by doctors for pregnant women.

The so-called DNA Wars of which I was a part in the late 80s and 90s resisting the admissibility of DNA test results that implicated my clients in death peenalty cases and the pressure on the courts to provide a legal remedy for parents of children born with birth defects possibly because the mothers ingested prescription Bendectin at the recommendation of their physicians to overcome morning sickness placed a mighty stress on our legal system.

The National Association of Prosecuting Attorneys pressured the courts to admit DNA testing and they were eventually successful in overcoming criminal defense lawyers like me who fought hammer and tong to prevent the evidence from bein admitted.

Plaintiff’s personal injury lawyers fought hard to persuade the courts to permit them to show a link between not only Bendectin and birth defects, but also between certain lung cancers and exposure to radioactiviy, coal dust, asbestos or smoking.

The SCOTUS decided the Daubert case in the midst of this war being fought in the courts to reject or at least loosen the strictures of the Frye Rule to allow litigants a shot at convincing juries to rule their way.

For those who cling to the Frye Rule believing the scientific tradition should be respected and followed before a litigant should be permitted to introduce into evidence the results of a scientific test based on a novel scientific principle or new methodology, I think they need to reexamine their view in a manner that recognizes that most trials consist of a lot of evidence from different sources that often independently confirm a result obtained using an experimental theory or methodology.

In addition, one party or the other has to satisfy a burden of proof and each side can call its own experts to challenge or support the results obtained with the new theory or methodology.

I have confidence in the ability of jurors to evaluate evidence obtained as the result of new scientific theories and methodologies in light of other evidence in the case and to fairly and impartially determine guilt or innocence according to which party has the burden of proof in any case, whether civil or criminal.

Of course this requires skilled lawyerswho understand science and can explain it to lay people. Unfortunately, we have a shortage of those lawyers, but the times are changing.

Daubert recognizes that, although a courtroom is not a laboratory, it is an excellent crucible for determining the truth and judges, lawyers and jurors are capable of making correct decisions and delivering justice in a way that no laboratory can accomplish.

The death shriek in the Zimmerman case is an excellent example of a situation where other evidence in the case confirms the hypothesis that Trayvon Martin uttered the death shriek.

Briefly, the evidence will show that Trayvon was an unarmed 5’11,” 158-pound 17-year-old male walking home in the rain minding his own business after purchasing Skittles and an iced tea at a 7/11. He spent most of his time during his walk home talking to his girlfriend on his cellphone informing her about a creepy man who followed him slowly at a distance in his vehicle in a menacing manner without identifying himself or attempting to engage him in a conversation. Trayvon attempted to elude the creepy man by running away from the street and ducking into a grassy area corresponding to the backyards of two rows of town houses,That area was not visible from the street and once there he told his girlfriend that he thought he had successfully eluded him.

The evidence will also show that the defendant was a 5’8,” 207 pound 28-year-old Neighborhood Watch Captain, professionally trained fighter and former bouncer, who was armed with a fully loaded 9 mm semiautomatic handgun that he carried in a holster concealed from view inside the right rear waistband of his pants.

The evidence will show that he got out of his vehicle after Trayvon ran away, ran after him in hot pursuit, and continued running after him despite being warned not to do so and agreeing not to do so by the NEN dispatcher. Then, instead of agreeing to meet the officer dispatched to the scene at a set location such a his parked vehicle, the RTL front gate, Clubhouse, or the rear entrance to RTL though which “these assholes always get away,” he instructed the dispatcher to tell the officer to ring him up on his cell phone when he arrived at the RTL so that he could tell him where he was.

Finally, the evidence will show that Trayvon’s girlfriend heard Trayvon say to someone, “Why are you following me for?” and then she heard an older male voice challenge Trayvon stating, “What are you doing here?”

Then she heard a sound like two bodies coming together and Trayvon yelling, “Get off me. Get off me.”

Then the phone went dead.

Less than one minute later, the defendant shot Trayvon in the heart, killing him.

I contend that nothwithstanding Dr. Nakasone’s legitimate concerns about the capability of audio technology today to positively identify the source of the death shriek from an isolated 3 second recording of a 911 call, a jury can reach the right conclusion by considering Dr. Nakasone’s opinion together with the opinions of other experts, and most importantly, the other evidence in the case, and the possibility that only Trayvon Martin or the man with the gun could have made those screams.

This, by the way will be the State’s argument, given the questions that Mr. Mantei asked Dr. Nakasone.

I hope this clarifies your understanding of the issues that relate to the admissibility of expert opinion evidence regarding the identity of the person who uttered the death shriek.

In my experience, judges have almost always allowed the expert witness to testify and express an opinion in a situation like this. They rule that objections by counsel go to the weight that the jury should give to any expert’s opinion rather than to the admissibility of the evidence itself.

I believe Judge Nelson will reach the same conclusion.

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Cross Examining the Expert Witness: Messing with Hypotheticals

February 11, 2013

Monday, February 11, 2013

I write today about effectively cross examining expert witnesses, which was one of my specialties.

I could write a book about the subject, and maybe someday I will, but today I am going to focus on unraveling the expert’s hypothetical question.

Briefly, Rule 702 of the rules of evidence defines an expert witness as someone who is qualified by education, training or experience to express an opinion regarding a disputed matter in a legal proceeding.

When a jury needs the assistance of an expert witness to decide a disputed matter, either side may present the testimony of a duly qualified expert witness who may express an opinion regarding the disputed matter, including the answer to the ultimate question in the lawsuit.

The party that calls the expert begins by qualifying her as an expert. This normally involves having her tell the jury about her education, training or experience and publications in professional peer reviewed journals. Most experts have a curriculum vitae or CV, that lists their educational credentials and an up-to-date list of their publications. The CV is admitted into evidence.

The expert then tells the jury what evidence she has examined in the case.

Next comes a hypothetical question in which the expert is asked to assume a set of specific facts and asked if she can form an opinion to a reasonable medical or scientific certainty about the significance of those facts.

The witness will answer, “Yes.”

Next question: “What is your opinion?”

Next comes the rat-a-tat-tat of a nail gun.

One of the most effective ways to cross examine an expert is to attack the validity of the assumptions in the hypothetical question.

Undermine one and the expert’s opinion usually falls apart.

Since assumptions typically consist of assuming that disputed facts are undisputed, in a manner that benefits the party that called the expert, the opposing party cross examining the expert simply asks the expert to assume the contrary view.

Another way to challenge an expert opinion is to introduce an additional assumption into the hypothetical that undermines the conclusion.

Let us take, for example, the issue regarding whether Trayvon or the defendant was on top when the defendant fired the fatal shot.

The undisputed facts are the trajectory of the shot, which was direct from front to back, the intermediate range from which the shot was fired, the nonalignment of the two aligned holes in the sweatshirts with the entry wound and the muzzle of the gun was in contact with the outer sweatshirt when the fatal shot was fired.

The disputed fact is whether Trayvon or the defendant was in the superior position straddling the other.

The defense probably could find an expert who, given those undisputed facts, could testify to a reasonable scientific certainty that the defendant was on the bottom when he fired the fatal shot.

The problem with the hypothetical, however, is that it does not account for the presence of the gun in the defendant’s hand.

According to the defendant’s statement, he pulled the gun out of the holster that he carried inside the waistband of his jeans behind his right hip.

The expert’s opinion falls apart when you add this undisputed fact to the hypothetical because the defendant could not draw the gun and get it into the necessary position to fire the fatal shot.

Note BTW, that one also could conclude to a reasonable scientific certainty from the original set of undisputed facts that the defendant was in the superior position straddling Trayvon.

This is how you shoot down credentialed experts in just a few words.


Was Trayvon Martin a Peaceful and Non-violent Person?

January 13, 2013

I write today regarding a game within the game. I am specifically referring to trial by ambush despite discovery rules that require the prosecution to basically turn over everything it has to the defense long before trial.

My inspiration to write about this subject comes from a series of questions asked by Diaryofasuccessfulloser, who wanted to know where to find evidence that Trayvon was a peaceful and non-violent person in the discovery that has been released.

You can look but you will not find much.

The discovery rules require the prosecution to identify the witnesses it intends to call and to provide copies of their statements to the defense and to the public.

Those statements do not necessarily include all of the information obtained from those witnesses. Defense counsel have a duty to investigate their cases and that includes tasking an investigator to interview the witnesses or to be present and take notes when the lawyer interviews them. Florida permits the use of depositions under oath in criminal cases.

Interviews and depositions provide an opportunity to obtain information not included in the statements and reports.

The best source of information about Trayvon’s non-violent and peaceful nature is his family and friends like Dee Dee. She described him that way to Benjamin Crump and to Bernie de la Rionda. So did the librarian where he used to study after school. His parents have described him that way publicly.

Note that the defense, which has been trying its case in the court of public opinion, has not produced any evidence at all to support its claim that he was an aggressive martial arts enthusiast who picked fights and bullied others. Obviously his school records contained no information to support that claim or the defense would have shouted it from the tree house.

According to the complaint filed by the security/investigation firm, the investigators did not find out anything useful to the defense about Trayvon. We do not know what they were tasked to do, but given the importance of such evidence to support the defendant’s claim, I suspect they looked for such evidence, but did not find it.

The absence of evidence to support the defense claim might reasonably be considered evidence that he was not an aggressive martial arts enthusiast who picked fights and bullied others.

That absence of evidence is consistent with what we have heard from his family and Dee Dee.

There are other witnesses too. I vaguely recall his former football coach describing him that way, for example.

In other words, you have to read between the lines sometimes because the prosecution is not required to document all of its evidence.

Remember that most witness statements and reports will never be admitted into evidence because most of them are hearsay. The evidence in court will consist of the exhibits admitted into evidence and the testimony of the witnesses under oath

Witness statements and reports rarely contain the whole story. They are like movie trailers and serve as a starting point to find out what the witness knows. Only a fool would assume that they contain all of the relevant information that a witness knows.

The prosecution has no obligation to reduce all of that information to writing and share it with the defense. The prosecution is only obligated to disclose exculpatory evidence to the defense and this evidence is not exculpatory. Evidence that Trayvon was peaceful and non-violent hurts the defense. Therefore, the prosecution has no duty to reveal it to the defense, unless it is in a statement.

I suspect the prosecution has a lot of evidence that has not been recorded or written down anywhere in a report.

Part of the game is to conceal as well as reveal only that which you are required to reveal.

The only way the defense can discover the information not included in the reports is to use an investigator to find it or acquire it during a deposition.

Unfortunately, the defense does not appear to have any investigators or experts to assist the lawyers.

This is one reason why I have been so critical of the defense effort. With the exception of the one report we know about, which they did not pay for, the defense appears to have sacrificed the use of investigators in favor of maintaining and paying for the defendant’s comfort and unnecessary security. In a case where the forensics likely will determine the outcome, the defense also appears to have sacrificed the use of experts for the same two reasons.

With O’Mara potentially indebted to the security/investigation firm for $27,000 and not having been paid a cent for the work he has performed, I can only shake my head in amazement that the priorities in this case are so upside down.

This is what can happen when a lawyer lets a selfish and clueless client run the show.


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