The Two Photographs of the Defendant’s Head Damage the Defense

December 17, 2012

Monday, December 17, 2012

After reviewing and considering the remarks by Zhickel, Grbsb, Jun and Whonoze (AKA: Treeslaw), I am going to put on my judge’s robe and issue the following ruling:

I find that neither photograph was altered and, therefore, both photographs are authentic and admissible at trial.

This is not a bad result for the State, as you will soon see.

In effect and by design, because I set it up this way, we have had our own internet version of a battle-of-experts pretrial hearing regarding the admissibility of the two digital photographs taken at the scene of the homicide by Officer Wagner (face) and the neighbor named Jon (back of the head).

The legal issue was whether the photos were authentic (i.e., originals or authentic reproductions) or fraudulent reproductions (i.e., altered).

Zhickle (nice to see your fonts again) and Grbsb in effect testified as experts for the defense while Jun and Whonoze testified as experts for the State.

There has to be a winner and on balance I decided for the defense because giving them what they want on this issue does not hurt the State’s case and I did not want to give them an appellate issue that might result in reversing the defendant’s conviction.

In other words, I am thinking strategically, or big picture, rather than focusing on the relative merits of each argument.

I predict Judge Nelson will reach the same conclusion for the same reason.

Just as I would do, I predict she will permit the prosecution to use their experts to acknowledge the distortions in the photos and explain why they are present, just as our four experts did. Such factors will go to the weight, or value of the evidence, rather than its admissibility.

The jury will decide how much weight to give to those photos. The greater the distortion, the less weight they are likely to be given.

The photos taken at the station house also will be admitted. Those photos together with expert testimony from one or more trauma surgeons should establish to a reasonable medical certainty that the defendant’s injuries, including his claimed but unverified “broken nose” were minor and inconsistent with the defendant’s narrative claiming how he got them.

The absence of any detectable trace of blood on the cuffs and lower sleeves of Trayvon Martin’s two sweatshirts and the absence of the defendant’s DNA in Trayvon Martin’s fingernail clippings also do not support the defendant’s narrative, as one would expect detectable amounts of the defendant’s blood and DNA in both areas. That is, despite the rain, detectable amounts of blood and DNA would have been present, if the defendant’s narrative were true.

In addition, the pattern of blood flow as depicted in the photo taken at the scene, before an EMT cleaned his head, shows blood flowing in a downward direction toward and curling around the lower end of his ears, which does not support the defendant’s claim that he was lying on his back. Instead, it shows that his head was upright and leaning forward, which is consistent with the defendant straddling Trayvon Martin, as several witnesses described him doing (Selma and the teacher).

These photos do not help the defense case. Considered together with the physical evidence, they appear to not only rule out the possibility that the defendant was reasonably in fear of imminent death or serious bodily injury, they also appear to rule out Trayvon Martin as the person who caused those wounds.

Given some minor scratches to his face, it appears more likely that the defendant ran into a tree branch in the dark bumping his nose and fell down bumping his head on some object, possibly a sprinkler head or cover, or possibly the edge of the cement sidewalk or a sign. Whatever caused them, it was not likely to have been Trayvon because there is no evidence that Trayvon Martin hit the defendant.

Even if he did hit him, I think the jury will find that he was legally justified to do so in self-defense because the defendant followed him first in his vehicle and then on foot into a dark area where he confronted and attempted to detain him without ever identifying himself, contrary to the police dispatcher’s admonition and the Neighborhood Watch rules.

I hope this exercise was helpful to a better understanding of hearings on motions in limine, battles between experts and the strategic considerations that inform judicial thinking.

Thanks to all of you for participating and please give me some feedback regarding whether this worked for you as a learning experience.


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