Zimmerman: To Exhume or Not to Exhume, That is the Question

November 5, 2012

GBRBSB asked an interesting question that occurred to me awhile ago, but I did not follow-up on it. The question is how would someone go about obtaining an order to exhume Trayvon Martin’s body to determine if there is any evidence that he suffered a peri-mortem injury (i.e., before death) that would be consistent with him having sustained a soft tissue injury from being placed in a painful hold by George Zimmerman before Zimmerman shot him.

Many years have passed since I looked at this issue, so I decided to to follow-up and take a look at Florida law.

First, here is my answer off the top of my head:

“I did not see any indication in the autopsy report that the Assistant Medical Examiner discovered or even checked for peri-mortem injuries of the sort you describe. I also don’t know if they could be detected anymore, if the body were exhumed to check.

The party seeking an order to exhume the body for further testing would bear a heavy burden of persuasion to establish a necessity, including a reason to believe that something important to the outcome of the case would likely be found, to justify granting the order.

I suspect that is unlikely, given the amount of time that has passed and the other evidence in the case.”

My answer was not far off.

First, the cause of death must be the primary issue in the case. Buenoano v. State, 527 So.2d 194 (Fla 1988); Coppolino v. State, 223 So.2d 68 (Fla 2nd DCA 1969). This prong of the test probably is satisfied because, although we know that the gunshot was the cause of death, we are attempting to find out if the shot was fired in self-defense.

Second, the results of the autopsy must be relevant to a material issue in the case, no matter the outcome. Villela v. State, 833 So.2d 192 (Fla 5th DCA 2002) (exhumation to determine if two bodies were in the casket); Albritton v. State, 769 So.2d 458 (Fla 2nd DCA 2000) (exhumation to determine if a hand was missing); Nichols v. State, 60 So.2d 181 (FL 1912) (exhumation of a child’s body to establish fractures); Lambright v. State, 16 So.2d 582 (FL 1894) (exhumation of body to extract a bullet). In other words, the result would determine whether the shot was fired in self-defense.

I do not believe this prong can be satisfied because we do not know if the evidence existed or if it did, whether it likely still exists. Zimmerman may have had Trayvon in a painful hold without causing a detectable injury and, assuming he did, the soft tissue may have decomposed by now.

Therefore, we would need to consult with a forensic anthropologist and/or a forensic pathologist to see what they think.

It would also help if Trayvon’s parents supported the request.

Fortunately, I do not think exhuming the body to look for the injury that may or may not be there is necessary to convict George Zimmerman.

Also, if the body were exhumed and no evidence of injury were found, Zimmerman would have another argument to make on his behalf.

This would force the prosecution to counter with the argument that evidence of absence is not absence of evidence.

When searching for yet another nail to secure the lid on the opponent’s coffin, one must avoid taking unnecessary risks that might weaken one’s situation.

Thanks for giving me the idea to check out this issue.

Don’t forget to vote tomorrow.


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