I have changed my mind and now support Judge Nelson’s decision

June 22, 2013

Saturday, June 22, 2013

Good afternoon:

I was in the waiting room at my doctor’s office down in Tennessee browsing through a dictionary looking for new words with which to torture y’all when CNN announced that Judge Nelson had issued an order excluding the State’s audio experts (Tom Owen and Dr. Alan Reich) from testifying at the trial. For those of you who may not be as familiar with the case as we are, both experts would have testified that George Zimmerman did not utter that haunting shriek. Dr. Reich also would have testified that Trayvon Martin likely uttered the shriek.

The anchor person said Judge Nelson determined that there is an absence of agreement in the scientific community that the methodologies used by Mr. Owen and Dr. Reich were capable of identifying the source of the terrified death shriek due to the current inability in the scientific community to match a voice exemplar with a shout, the poor quality of the 911 recording, and the short length of time in which there are no competing sounds on the recording and only the shriek can be heard (approximately 3 seconds).

Although I predicted Judge Nelson would deny the defense motion, I cannot say that I am surprised or dismayed by her decision. In fact, and I may surprise some of you with this statement, I am going to compliment Judge Nelson for her decision because it is the right decision at the right time in our nation’s courts and I believe it took a lot of courage for her to make it, especially in a high visibility case like this one in which the whole world is watching.

I have previously written about the deplorable state of forensic science in our nation and the need for standards, regulatory oversight, and mandatory blind proficiency testing of lab personnel modeled after the Clinical Laboratory Improvement Act (CLIA). There is no question in my mind that Dr. Nakasone and Dr. Weyman are on the right track attempting to establish a national set of standards and accepted methodologies for use in forensic voice identification. Judge Nelson did the right thing by endorsing their efforts and her decision was courageous because a lot of forensic scientists and the prosecutors and defense lawyers who employ them will criticize her.

My support for the admissibility of the results obtained by Mr. Owen and Dr. Reich is based on the unique set of circumstances of this case in which the shriek could only have been uttered by one of two known individuals. This situation only requires eliminating one of the two individuals. Since all of the experts who testified agreed that the methodologies used by the State’s experts have been used for many years and continue to be used today; it was easier to exclude than to declare a match; the defense was unable to find an expert willing to testify that George Zimmerman uttered the shriek; and the circumstantial evidence proves that Trayvon Martin uttered the shriek; I concluded that the State’s experts should have been permitted to testify. I still believe that would have been an appropriate conclusion to reach applying the Frye rule.

I am very pleased and proud of your reaction to the news. I anticipated dismay, some panic, and cynical complaints that Judge Nelson is corrupt and the outcome is rigged. I anticipated this reaction because I confess that it was my first reaction. A 2-hour motorcycle ride home on a beautiful afternoon driving on a lesser-traveled 2-lane highway curving through forests and corn fields with the Crane-Station sitting behind me was the perfect antidote. I fully engaged in driving my motorcycle, forgot my disappointment, and realized the prosecution is in a much better position because of her ruling.

When I arrived home and checked the blog I saw that y’all were taking it in stride without any help from me. Y’all know that the prosecution does not need the expert testimony to convince the jury that Trayvon Martin uttered the shriek and I think y’all also realize that not presenting the expert testimony avoids the inevitable distraction and confusion that a battle of the experts might cause. Indeed, in a case like this with only two possible individuals who could have uttered the shriek, there is virtually no chance that any jury would conclude that the shooter uttered that shriek when the evidence will show that he was the person who was armed, he was the person who got out of his vehicle and ran after an unarmed Trayvon when Trayvvon attempted to get away from him, he was the person who admitted to establishing control over Trayvon with a wristlock before pulling his gun and shooting Trayvon, and the shriek ends with the gunshot. Just as we do not need a weatherman to tell us which way the wind blows, we also do not need experts to tell us who uttered that shriek. Neither will the jury.

Therefore, Judge Nelson did the prosecution a huge favor by excluding the experts. In essence, she applied the KISS rule and is forcing the prosecution to do the same thing. She deserves to be thanked for that, not criticized. Y’all realized that without any assistance from me and that is why I am so proud of you and so delighted to see how much you know about the case and how sophisticated you have become in understanding the evidence and the rules governing the use of expert witnesses.

Anyone lacking your knowledge of the evidence in this case would have thought the prosecution had lost any chance to convict George Zimmerman, given the near unanimity of so-called legal experts characterizing this ruling and the selection of an all woman jury as devastating disasters for the prosecution.

Before I got involved in this case, I did not believe my low opinion of the national media and their so-called legal experts could possibly get any lower. However, the nonsense they are spewing as informed opinion has significantly lowered the bar. Despite its availability, they are ignoring the evidence that we have so carefully analyzed and discussed. They have accepted Mark O’Mara’s false narrative and joined in demonizing an innocent 17-year-old kid with loving parents and a bright future. I would have considered myself extraordinarily fortunate if Trayvon were my son and I would have been extremely proud of him. Anyone lawyer who has joined in the demonization of Trayvon and his parents by appearing on national television and voicing an expert opinion regarding the case that endorses the false narrative as though it were true, is a fundamentally dishonest human being without empathy or moral compass.

In many ways, Travon’s case functions as a mirror reflecting the prejudices people have about race, black male teenagers, and black people as parents and citizens. With the selection off an all female jury, the case is reflecting the prejudices people have about women as decision-makers.

Before this case, I knew we had a long long way to go before we reach a place where we no longer disrespect people by the color of their skin and their gender.

Trayvon’s case has taught me that our society is far more racist and sexist than I imagined. His case is an opportunity to set the record right and recommit to seeking equality and justice for all of our people as opposed to a privileged few.

Congratulations to all of you from your humble professor.

Fred

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Do not fail to see the forest for the trees in Zimmerman case

March 3, 2013

Sunday, March 3, 2013

Greetings to everyone.

I write today to present a simple theory of the case that illustrates the KISS rule.

The prosecution must prove beyond a reasonable doubt that the defendant committed murder in the second degree when he killed Trayvon Martin. That is, that shooting Trayvon was “an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.” See 782.04(2), Fla.Stat.

The jury will be provided with these definitions to apply in deciding whether the prosecution satisfied its burden of proof:

An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.

In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

(Florida Supreme Court Pattern Jury Instruction 7.4)

Notice that the prosecution is not required to prove that the defendant intended to kill Trayvon or that he violated any law by following him.

Notice too that, given this set of definitions, the killing would constitute an act “imminently dangerous to another and evincing a depraved mind regardless of human life,” if the jury finds that the prosecution proved beyond a reasonable doubt that the defendant did not act in self-defense.

For the following reasons, I believe that the evidence will establish beyond a reasonable doubt that the defendant was the aggressor.

We can tell from the NEN recording that he got out of his vehicle to follow Trayvon because he admitted that he did.

He also agreed not to follow him when the dispatcher told him “We don’t need you to do that.”

We know that he lost Trayvon because he admitted that he did not know where he was after he said, “He ran.”

We know that he was frustrated and feared Trayvon would escape because he said, “fucking coons” (or punks, if you prefer) and “these assholes, they always get away.”

We know that he disregarded the dispatcher’s admonition to not follow Trayvon because he asked the dispatcher to tell the officer en route to call him on his cell phone after he arrived in the neighborhood, instead of agreeing to meet him at a specific location, such as the clubhouse or his parked vehicle.

We know he lied to the police when he said Trayvon emerged from behind some bushes and jumped him at the T-intersection of the sidewalks as he was walking back to his parked vehicle because there are no bushes there. Also, Trayvon’s body and the spent shell casing ejected from his KelTec 9 semiautomatic were found 40 feet south of the T-intersection, which is inconsistent with his claim that the shooting occurred where he was knocked to the ground.

There are many other problems with the defendant’s statements that we have identified and discussed ad nauseum. Suffice to say that the evidence I have mentioned here is sufficient to establish that the defendant followed Trayvon in his vehicle, lost him when Trayvon ran out of sight behind a row of townhouses, got out of his vehicle, ran after him with the intent of finding him and preventing his escape, and subsequently lied to police when he denied following him insisting instead that Trayvon jumped him at the T-intersection as he was walking back to his vehicle.

Since he was hunting with the intent of preventing this particular “fucking coon” (or fucking punk, if you prefer) and this particular “asshole” from getting away and lied about that to the police, I do not believe the jury will have any difficulty concluding that he killed Trayvon during an attempt to prevent him from getting away.

However, the defendant had no legal cause to touch, much less physically restrain Trayvon.

Trayvon, on the other hand, had the legal right to use reasonable force to resist the defendant’s use of force to restrain him.

Nevertheless, I do not believe Trayvon attempted to hit the defendant or slam his head against a cement sidewalk because no trace of the defendant’s blood or DNA was found on his fingernail clippings or on the lower sleeves of the two sweatshirts he was wearing. Even if he did, however, the injuries were minor and required no stitches and the defendant declined several offers by EMTs and police to take him to the ER for a check-up.

Those minor injuries were insufficient to create a reasonable fear in the defendant’s mind that he was in imminent danger of death or serious bodily injury. This conclusion is amply supported by his vital signs, which were all normal a mere 15 minutes after the shooting.

If I were the judge deciding this case instead of a jury, I would enter the following Findings of Fact and Conclusions of Law based on the evidence I have discussed.

FINDINGS OF FACT

1. the defendant created the situation that ended with Trayvon’s death;

2. the defendant never told Trayvon who he was or that he was a neighborhood watch person, despite at least two opportunities to do so as noted by Investigator Chris Serino in his capias request;

3. Trayvon was a guest staying at Brandi Green’s residence and had a right to be where he was at all times relevant to this tragedy;

4. the defendant believed Trayvon was “up to no good” even though Trayvon was not engaged in any suspicious activity;

5. The defendant followed Trayvon first in his vehicle and then on foot with the intent of preventing him from escaping from the neighborhood as other “fucking coons” (or fucking punks, if you prefer) and “assholes” had done in the past.

6. The defendant was the aggressor and had no legal basis or reason to touch, much less use any force against Trayvon to restrain or detain him for any purpose;

7. Trayvon would have been justified in using reasonably necessary force to stand his ground and prevent the use of force against him, including using deadly force since deadly force was used against him.

8. There is no credible evidence that Trayvon ever struck or injured the defendant, but if he did, his use of force was lawful and justified in self-defense.

9. The defendant’s injuries were minor and he was never in imminent danger of death or suffering serious injury.

CONCLUSIONS OF LAW

1. The defendant was the aggressor at all times relevant to this confrontation and his use of force was unlawful.

2. The defendant’s aggressive course of conduct and his use of deadly force by shooting Trayvon Martin in the heart without lawful justification was an act “imminently dangerous to another and evincing a depraved mind regardless of human life.”

3. The defendant committed the crime of Murder in the Second degree.

In conclusion, I want everyone to realize that arguments regarding whether the dispatcher had the authority to order the defendant to not follow Trayvon, or whether the defendant violated any law by following Trayvon, are irrelevant.

The relevant issues are what did the defendant do and what did he intend to do when he did it. For example, it does not matter whether the dispatcher had the legal authority to order him to not follow Trayvon. What matters is that he agreed not to follow Trayvon while he was running after him, he kept on hunting for him until he found him, and then he lied about it to the police because he wanted them to believe he had complied with the dispatcher’s request.

Do not fail to see the forest for the trees.

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Short and Sweet

January 12, 2013

Saturday, January 12, 2013

I wrote Short and Sweet to follow-up on my article yesterday titled, Keep It Simple, Stupid.

The defense in the Trayvon Martin murder case apparently does not have any credible evidence that he was a martial-arts trained aggressive bully who assaulted people. I say “apparently” because I am certain we would have heard about it, given the defense effort to try its case in the court of public where defense counsel can testify with impunity, rumor and innuendo are admissible, and the prosecution cannot cross examine or introduce any evidence. Since evidence that Trayvon was a martial-arts trained aggressive bully who assaulted people would not be difficult to find, if it existed, I believe we can reasonably conclude that such evidence does not exist.

The one thing we do know from reviewing the complaint filed by the security/investigation company against the defendant, his wife and the defendant’s attorney is that its investigators found nothing useful for the defense and could not even confirm a rumor that a client’s daughter could have purchased marijuana from Trayvon.

Instead, the prosecution apparently has a mountain of evidence that Trayvon was peaceful and non-violent.

This evidence is not admissible unless the defense opens the door by claiming that Trayvon was the aggressor and initiated the confrontation by sucker-punching the defendant in the nose, knocking him to the ground.

Difficult to imagine the defense will not make this claim during its opening statement, since this is an important and necessary part of the defendant’s self-defense claim that he provided to the police and to a national audience during the Hannity interview. Therefore, I think we can reasonably assume that the defense will open the door during its opening statement and the prosecution will be introducing evidence of Trayvon’s non-violent and peaceful disposition during its case-in-chief.

On the other side of the coin, the defendant has shown that he has a violent temper and a willingness to assault others when he loses his temper. That uncharged-misconduct evidence is not admissible under rule 404(b), unless the defense opens the door by claiming he is a non-violent and peaceful person or a person with good character.

The defense will make a bad mistake, if it opens this door, but I think they will do it.

Why?

Because the defendant still appears to be driving the bus and he is as clueless as clueless gets.

Katie bar the door, if they do.


Keep it Simple, Stupid

January 11, 2013

Keep it simple, stupid or KISS is a fundamental rule of trial practice. It is so important that I am seriously considering adding it as a new Fourteenth Commandment to the Thirteen Commandments that I wrote about on September 25, 2012.

I credit Sheila Dunn for inspiring me to write about this rule today. She shocked me yesterday when she criticized Piranha Mom’s recent article as pro-Zimmerman. She shocked me again when she said the blog was turning pro-Zimmerman. Quite a few of you were similarly shocked and most of the responses, including my own, fell into the are-you-nuts category.

I reconsidered and decided that probably she was warning us that we are violating the KISS rule by entertaining theories that unnecessarily complicate and weaken the prosecution’s case. I responded a second time stating that the prosecution is not likely to attempt to prove something that it cannot prove. That is, we are not the prosecution team and we are not subject to the KISS rule. Specifically, Piranha Mom was not asserting that her theory was true. She was discussing the theory and the evidence that supports it.

It may be true and it may not be true. We may find out that it’s true or we may not. Right or wrong the exercise is useful because it forces us to sharpen our critical thinking skills by examining the evidence again from another perspective.

When we engage in a theoretical exercise, we also have to consider the rules of evidence. We need to consider what evidence is admissible and what evidence is inadmissible. In this situation, we need to consider whether and to what extent is uncharged misconduct admissible in a criminal trial.

I wrote an article about this subject on December 18, 2011. The title is Criminal Law: Admissibility of Uncharged Misconduct Evidence. Here it is, including the hilarious clip from the film, My Cousin Vinnie.

Two what?

Author’s note: I refer to the Federal Rules of Evidence for the sake of convenience because most states have adopted them verbatim, or with only slight changes. They have even retained the same numbering system for ease of reference.

In criminal trials, prosecutors often seek to introduce evidence that a defendant has committed misconduct other than that charged in the information or indictment.

Why?

Answer: Since prosecutors are required to overcome the presumption of innocence by proof beyond a reasonable doubt, they fear they will not be able to convict a defendant without relying on uncharged misconduct evidence, especially in weak cases.

Rule 401 of the Federal Rules of Evidence (FRE 401) provides:

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

FRE 402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

No one disputes that, under some circumstances, such evidence is relevant, for example, to show a defendant’s state of mind where his state of mind is an issue in a case.

Let us say that a 31-year-old defendant is charged with statutory rape in a hypothetical jurisdiction where the crime prohibits a person over the age of 25 having sex with a person under the age of 16. He claims that he did not know and had no reason to know that she was underage because she told him she was 19 and she appeared to be that old. Thus, the issue is whether the defendant knew she was under the age of 16 .

Let us further say that the prosecutor can prove that the alleged victim met the defendant when she approached him in a parking lot outside a convenience store and asked him to buy her a pack of cigarettes because she was not old enough to buy them. He agreed, and after he gave her the cigarettes, they spent some time together that ended several hours later when her father discovered them in flagrante delicto while parked outside the family house. A person must be 16 in this jurisdiction to buy cigarettes legally and it is a misdemeanor to purchase cigarettes for a person under the age of 16.

Should the prosecutor be permitted to introduce evidence about the cigarette purchase?

Answer: Yes, the incident is relevant under FRE 402 because it establishes that he knew she was under the age of 16, and relevant evidence is admissible under FRE 401.

What about other instances of uncharged misconduct? Are there other rules that apply?

Answer: Yes, FRE 403 and 404.

FRE 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Would the cigarette purchase evidence be inadmissible under FRE 403?

Answer: No, because the probative value of the evidence to prove that he knew she was under the age of 16 is high and the danger of unfair prejudice is low. There is little danger that the evidence will confuse the issues, mislead the jury, or waste time.

Note that any analysis under FRE 403 requires a weighing of probative value versus prejudicial effect.

FRE 404 provides:

(a.) Character evidence generally.

Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1.) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.

(2.) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

(3.) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b.) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

(emphasis supplied)

FRE 404(a) states the general rule, which prohibits the use of character evidence (e.g., the defendant is a liar) to prove that the defendant lied on a particular occasion relevant to the case. I believe this rule makes sense because no one lies all the time with the possible exception of the obamanable one, of course. Such evidence would invite the jury to basically presume the defendant lied at the time in question, rather than basing its decision on the evidence, and that would violate the presumption of innocence.

FRE 404(b) begins with a general prohibition against the use of uncharged misconduct. The second sentence sets forth the exceptions.

Uncharged misconduct is admissible to prove:

1. motive,

2. opportunity,

3. intent,

4. preparation,

5. plan

6. knowledge,

7. identity, or

8. absence of mistake or accident.

In our hypothetical, the defendant’s uncharged misconduct (i.e., purchasing cigarettes for the underage girl) would be admissible to show knowledge (i.e., that he knew she was less than 16-years-old) and absence of mistake (i.e., that he did not mistake her to be 16-years-old, or older).

As before, the judge would have to balance the probative value of the evidence against its potential prejudicial effect pursuant to FRE 403, but we all know how that will turn out.

Whether any one or more of these factors will be present in any given case depends on what the prosecution must prove to convict a defendant and whether the prosecutor knows about and can prove prior uncharged misconduct.

Note: FRE 404 applies when a prosecutor seeks to introduce uncharged misconduct evidence during its case-in-chief (i.e., when the prosecution is presenting its case). FRE 609, which governs the admissibility of a defendant’s prior conviction, applies during the defense case after the prosecution rests, if the defendant testifies (i.e., if the defendant testifies, the prosecution gets to introduce the prior conviction to impeach or undermine the defendant’s credibility. The prosecution cannot introduce the prior conviction, if the defendant does not testify). Prior felony convictions are admissible, if less than 10-years-old, subject to the judge weighing the probative value versus the potential prejudice to the defendant, unless the crime involves dishonesty or false statement. Even misdemeanors that involve dishonesty or false statement are admissible under this rule.

Some examples:

1. Prior drug use should be excluded in a drug case since it merely shows propensity to use drugs, which has low probative value and high prejudicial value and it does not fall into any of the 8 exceptions listed in FRE 404(b).

2. A prior felony drug conviction should not be admissible as impeachment, if the defendant testifies, because its potential prejudicial value outweigh its probative value, However, some jurisdictions permit it on the ground that a drug conviction involves dishonesty or false statement.

3. So-called signature crimes are admissible under FRE 404(b) to prove identity of the perpetrator.

Conclusion: The admissibility of uncharged misconduct evidence is one of the most complicated and litigious issues in criminal law. This essay is a brief overview of the subject to explain what it is about in laymen’s terms. Should you or someone you know be involved in a case in which this issue comes up, educate yourself with this article and use it to intelligently discuss the issue with your lawyer. As always, rely on your lawyer. If you do not trust your lawyer, hire another one.


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