The prosecution concealed police corruption in Zimmerman trial

July 21, 2013

Saturday, July 20, 2013

Good evening my friends:

The jury delivered its verdict in the George Zimmerman trial a week ago tonight. I was shocked and dismayed by the verdict. Like most of you I initially focused my wrath on stealth juror B-37 because she basically admitted on national television approximately 12 hours after the verdict was announced to having decided that “George” (referring to him as though he were a personal friend) was not guilty before she heard any evidence in the case. Indeed, her summary of the evidence matched the false narrative that Mark O’Mara had been preaching and the national media had been duly reporting for a year.

She bought O’Mara’s Trayvon-is-a-thug story despite no evidence to support it. Her race-based criticism of Rachel Jenteal’s manner of speaking and her consequent decision to ignore her testimony was a breathtaking admission of racist thinking that she quite obviously regarded as acceptable normative behavior that no one would question.

When I thought she could not possibly do more damage to herself, she added insult to injury with her giddy announcement that she had reached an agreement with a literary agent to sell her story to a publishing house before the story was even written. Never mind that she or her attorney husband must have contacted the literary agent in violation of the sequestration order, unless they contacted her in the middle of the night after the verdict was announced.

I seriously doubt that literary agents accept cold calls on late Saturday nights and early Sunday mornings from unpublished authors pitching ideas for unwritten books. Thankfully, the agent had the good sense to nix the deal once she realized she was dealing with an out of control racist wacko.

I was so disgusted and angered by B-37’s false statements under oath during voir dire, her willful violations of the sequestration order and her oath to follow the jury instructions that I urged the prosecution to prosecute her for perjury. Well, I have not seen any sign that Angela Corey intends to make an example out of her to warn future jurors not to engage in those behaviors. Seems to me that such a prosecution probably is necessary in Florida to convince jurors that an oath truly is a promise to tell the truth under penalty of perjury. In addition, B-37 truly is an unrepentant racist and egregious human being who deserves to spend time in prison for who she is as well as what she did.

While I have no doubt that B-37 contributed significantly to the miscarriage of justice, she was not alone. I also hold Angela Corey and Bernie de la Rionda responsible two disastrous tactical decisions; namely, the decision to remove race from the case and the decision to refrain from aggressively attacking Investigator Chris Serino and Officer Doris Singleton for their testimony supporting Zimmerman and vouching for his credibility. Serino, in particular, deserved to be raked over the coals for tampering with witnesses at the crime scene in an attempt to convince them that the defendant uttered the terrified death shriek.

Witness tampering in a murder case is a felony punishable by up to life in prison.

I first read about Trayvon Martin’s murder while the Sanford Police Department was still investigating the case and it seemed that Zimmerman was not going to be charged.

Their reluctance to charge appeared to me to have been imposed from the top down by State Attorney Norm Wolfinger and Chief Bill Lee due to as yet unknown reasons political reasons rather than the merits of the case.

That is corruption and that is not how our legal system is supposed to work.

As soon as I reviewed the defendant’s statements, including what he said during the NEN call, I realized that this case was all about race and could not be understood without mentioning race. If Trayvon Martin had been white, for example, the defendant would not have called the police.

I wrote an article in which I stated that anyone who believed George Zimmerman’s story was necessarily a racist. That is, one had to assume that Trayvon was a violent and crazy thug who all of a sudden for no apparent reason decided to attack and attempt to kill with his bare hands a menacing stranger who had followed him in a vehicle and then on foot after Trayvon had successfully eluded him by running away and hiding in a dark area behind a building containing townhomes. No person in their right mind would do that.

The defendant described Trayvon as a stereotypical black gangsta popularized in comics and blaxploitation films. In order to believe Zimmerman, people had to believe that the stereotypical black gangsta in films actually exists in real life.

I have represented black gang-bangers from Los Angeles who were members of the notorious Crips and Bloods. They were real flesh and blood people with more than a passing interest in survival. Yes, they had participated in gang violence and killed people but they planned what they did and they acted together. They did not utter dated movie lines or issue warnings to their intended victims before shooting them. They did not wander off unarmed and alone somewhere and suddenly decide to attack and kill a stranger with their bare hands. None of them would have believed Zimmerman’s ridiculous story. Only a white racist fixated on young black males who gets a thrill out of watching movies about mean and vicious black gangstas believing that they represent real people would even be capable of making up such a ridiculous story.

I was and continue to be astonished that anyone believed his story.

I believe that the extent to which it is believed offers a pretty accurate measuring stick indicating the prevalence of racism against blacks in our current society.

George Zimmerman did not profile Trayvon Martin as a thug casing the neighborhood for a house to burglarize in the RTL around 7 pm on a rainy Sunday night in late February because Trayvon was wearing a hoodie and walking around in the rain. He profiled him because he was a young black male and he invented a self-defense claim to justify killing him by describing Trayvon Martin as character in a movie.

Race was the proverbial elephant in the living room and the prosecution should never have agreed not to mention it. Zimmerman selected Trayvon because he was black and he hunted him down and attempted to detain him because he assumed certain things about him because he was black. He was the aggressor because he was determined to prevent him from escaping out the back entrance before the police arrived just like all of the other fucking coons and assholes who got away.

A review of all of the defendants NEN calls establishes that he obsessed about blacks. Black residents of the RTL had negative experiences with him where he accused them of wrongdoing. A visible pattern emerges of Zimmerman repeatedly assuming that blacks engaging in normal activities actually were up to no good and he called the police NEN to report them.

All of this evidence was relevant to why he selected Trayvon and why he killed him

As John Guy said, “George Zimmerman did not shoot Trayvon Martin because he had to. He shot him because he wanted to.”And he did it because Trayvon was black.

In other words, he committed a federal hate crime and I hope the Justice Department prosecutes him.

I do not know why the prosecution decided not to stress the importance of race. I imagine Angela Corey made the decision with Bernie de la Rionda’s consent. I do not believe John Guy or Richard Mantei participated in that decision. I think Corey and de la Rionda owe us an explanation.

They also inexplicably allowed Chris Serino and Doris Singleton to support George Zimmerman’s claim of self-defense. I can understand not wanting to attack a law enforcement agency in order to avoid incurring the probable wrath of other law enforcement agencies. However, once Serino and Singleton turned against the prosecution, Bernie de la Rionda should have torn Serino to shreds by bringing out that he tampered with witnesses to get them to identify George Zimmerman as the person who uttered the terrified death shriek and he set up Tracy Martin at his most vulnerable moment to deny in front of other officers, including Singleton, that he could positively identify Trayvon as the person screaming.

Serino was obviously following orders issued before he arrived at the crime scene. The fix was in and the orders were issued from the top down. He ran that investigation to produce the appearance of an investigation and he only varied from that course of action at the last minute when he realized that the department was not going to get away with not charging Zimmerman. I think he made that decision on his own hoping to save his job and hoping people would not look closely at what he did.

I think he was a trusted player in the corruption game or the Chief would not have put him in charge of the investigation.

Bernie de la Rionda also should have confronted Singleton for wearing awards on her uniform that she had not earned.

The verdict in this case might well have been different if Angela Corey and Bernie de la Rionda had not made these decisions.

The bottom line is Chris Serino and Doris Singleton are corrupt cops in a corrupt police department. They still have their jobs and that suggests that the effort to clean-up the department is only for the sake of appearances.

The prosecution’s decision to allow them to lie and gut their case to justify and conceal how they mishandled the investigation bespeaks a form of intolerable corruption in which Angela Corey and Bernie de la Rionda aided and abetted corrupt police work.

And the end result is that a racist lying psychopath is now free to kill again.

That is why I cannot and will not accept this verdict as legitimate, ever.

This is why I join with LLMPapa in urging Attorney General Eric Holder to prosecute George Zimmerman for a hate crime.

I regret to say that I do not believe Zimmerman will be charged with a hate crime. I fear the decision will be made for political reasons rather than on the merits of the case itself.

Assuming I am right that will add even more corruption to a corrupt and shameful case.

At the very least, by speaking truth to power, we draw a line in the sand and declare for all who have eyes to see that we are not fooled by the appearance of justice. We saw through to the corrupt core of this case and in this way we honor Trayvon Martin and his memory.


Defendant faces Hobson’s Choice

July 4, 2013

Thursday, July 4, 2013

Happy Independence Day to everyone!

I write today to allay concerns regarding the sufficiency of the State’s case.

First, we know they are going to call the Dr. Bao, the Assistant Medical Examiner who did the autopsy. I think we can reasonably expect that he will tie up any remaining loose ends regarding Trayvon’s death. Expect graphic and gruesome photographs that will firmly ground this case in the reality of a death that did not need to happen.

Second, the prosecution always ends its case-in-chief with what we call a wind-up or summary witness who ties everything together with the aid of charts, graphs and timelines that bring the evidence into focus. I am anticipating that FDLE Detective Gilbreath will be the witness and Bernie de la Rionda will ask the questions that steers him through the maze and haze.

Third, I am expecting the State will call Sybrina Fulton and she will identify her son as the person who uttered the terrified death shriek.

I believe the State will use most of tomorrow to finish up its case.

After the State rests, the defense will move to dismiss the murder charge and enter a judgment of acquittal on the ground that the State failed to present a prima facie case.

The test sJudge Nelson will apply in deciding that motion requires her to assume for the purpose of deciding the motion that all of the evidence introduced during the State’s case-in-chief and all reasonable assumptions that can be drawn from that evidence are true. Given those assumptions, she must decide if a rational trier of fact (i.e., a juror) could find the defendant guilty beyond a reasonable doubt of murder in the second degree.

Expect Judge Nelson to deny the defense motion.

After she denies that motion, the defense will have to decide whether to present any evidence. I believe sufficient evidence of self-defense has come in through the defendant’s statements to support instructing the jury on self-defense. Therefore, the defendant will not have to testify to get that instruction and the defense could rest without calling any witnesses.

Will the defendant testify?

As I commented last night,

The combination of the SPD photographs that show no significant injuries to the defendant’s face and head and the absence of any of the defendant’s blood and DNA on Trayvon Martin’s fingernails and his hoodie sweatshirt, particularly the sleeves and cuffs, put the lie to the defendant’s story.

Trayvon Martin did not hit the defendant repeatedly or slam his head against a cement sidewalk because, if he had done so, he would have been covered with the defendant’s blood and DNA.

Therefore, the defendant was never reasonably in fear of death or serious bodily injury.

Trayvon Martin’s fingernails and sleeves would have been drenched in blood, if the defendant’s story were true. The argument that the rain washed away the defendant’s DNA, and/or the packaging of the damp hoodie in a plastic biohazard bag degraded all of the defendant’s DNA is specious because Trayvon’s blood and DNA were detected.

There is no question that the defendant followed Trayvon Martin first in his vehicle and then on foot with the intent of preventing this “asshole from getting away.”

There is no question that Trayvon Martin attempted to run away from the defendant.

There is no question that the defendant had two opportunities to identify himself but decided not to do so.

There is no question that the defendant ignored the dispatcher’s warning to cease from following Trayvon Martin when he told the dispatcher to have the officer en route call him for a location and he subsequently pursued Trayvon Martin into the grassy area behind the townhomes south of the T intersection.

Given his unambiguously expressed intent to prevent Trayvon Martin from getting away, there is no doubt that he confronted him when he found him.

The defendant’s hostile pursuit makes him the aggressor and he cannot legitimately claim that he acted in self-defense, unless Trayvon Martin resisted his effort to detain him with deadly force and he could not withdraw from the encounter.

The defense claim that Trayvon Martin was “armed” with a cement sidewalk is controverted by Dr. Rao’s testimony and the DNA evidence.

I think the jury will likely find the defendant guilty, if he does not testify.

Yet, I cannot imagine how he can talk himself out of the mess he has created.

He has the right to decide whether to testify.

We will have to wait and see what he decides to do.

I am not expecting the defense to present any other evidence, with the possible exception of calling a family member(s) to identify the defendant as the person who uttered the terrified death shriek.

I suspect the jury will not believe them since the defendant was never in any danger and the shriek abruptly ends with the gunshot that silenced Trayvon Martin forever.

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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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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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Prosecution experts exclude the defendant as the source of the death shriek

June 7, 2013

Friday, June 7, 2013

Good evening:

The Frye hearing is developing much as I expected it would, although I am surprised by how far afield the testimony has wandered.

The scope of the hearing should be confined to determining whether the methodologies used by the experts are generally accepted by forensic audiologists. Dr. Nakasone, Tom Owen and Dr. Reich agreed that they are and that resolves the Frye inquiry.

The defense presented evidence questioning the accuracy of the results due to the very short (3-second recording) length of time in which the death shriek is not competing with other sounds. However, that argument and the rest of the defense arguments affect the weight that should be given to the results rather than the admissibility of the evidence.

Therefore, we basically watched a full dress rehearsal of the defense case challenging the accuracy of the opinions expressed by Tom Owen and Dr. Reich.

They agreed that the defendant did not utter the death shriek and indeed the circumstantial evidence independently confirms their opinions.

I confess that I had a difficult time hearing what the experts were saying because the audio was fuzzy and cutting in and out.

West’s monotone and stubborn nitpicking instead of focusing on the general acceptance issue, which is the purpose of the Frye hearing was quite annoying.

I think the defense committed a potentially serious tactical error by asking for a Frye hearing this close to trial because they have little or no chance to win and the hearing creates an opportunity for the State to remind everyone that their experts have excluded the defendant as the source of the death shriek.


Zimmerman: Pssst hey buddy what’s a Frye hearing

May 7, 2013

Tuesday, May 7, 2013

To Frye or not to Frye,
that is the question.
Whether ’tis nobler in the mind
to suffer the slings and arrows
of outrageous fortune
or to take arms against
a sea of troubles
and by opposing end them.

Hamlet, Act III, by William Shakespeare

Good morning:

I write today to explain the Frye Rule and Mark O’Mara’s latest strategic mistake. Let’s begin with the mistake.

If Judge Nelson grants his motion, there will not be any testimony by an expert witness regarding the identity of the person who uttered the terrified shriek. That will not help the defense because that intense, high-pitched, and prolonged nightmarish shriek of sheer terror ends abruptly with the fatal gunshot to the heart.

Just as it does not take a weatherman to tell which direction the wind blows, no juror is going to have any difficulty figuring out that the person who uttered that inhuman shriek is the victim of that gunshot. No juror is going to believe that the person armed with the gun; who pulled it out of a holster; who extended his arm; who aimed the gun taking care to make sure his left hand was out of the way; and who pulled the trigger at point-blank range is the person who screamed.

I am certain the prosecutor will not forget to remind the jury that the defendant told the police that he kept screaming for help after the shot because he thought he missed Trayvon Martin.

Apparently, Mark O’Mara has not listened to that agonizing shriek because, if he had listened to it, he never would have filed this ridiculous motion that can only hurt his client, if Judge Nelson grants it, since the absence of expert testimony would simplify identifying Trayvon as the source of the shriek while also disproving the defendant’s claim that Trayvon was beating him to death and attempting to smother him when he fired the fatal shot.

Breath. Taking. Stupidity.

Now, let’s take a look at the Frye-hearing request.

Every once in awhile someone develops a new theory or a new way of performing some task (i.e., a new methodology). A lawyer finds out about it and decides he wants to apply that new theory or methodology to win a case. Opposing counsel says, “Not so fast, pal. Not without a Frye hearing.”

A Frye hearing is a pretrial hearing to determine if evidence obtained pursuant to a new theory or methodology should be admitted or excluded during the trial. Think of it as a judicial screening device to exclude potentially inaccurate and unreliable evidence based on a new untested theory or methodology.

We call it a Frye hearing because the first published case that dealt with this issue was Frye v. United States, 293 F. 1013 (D.C. Cir 1923). Judge Van Orsdell laid out the facts:

A single assignment of error is presented for our consideration. In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant. The test is described as the systolic blood pressure deception test. It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject’s mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.

In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.

Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained. The offer was objected to by counsel for the government, and the court sustained the objection. Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury. This also was denied.

Judge Van Orsdell then proceeded to define the new rule:

The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.

Numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

(Emphasis supplied)

The issue Judge Nelson would have to decide, assuming she decides to hold a Frye hearing, is whether the methodologies used by the state’s experts are generally accepted by audiologists as capable of producing accurate and reliable results.

The Frye test has been described as a counting-heads test because it does not require the judge to understand the theory or methodology at issue. The judge need only count the heads of the experts in the particular field and decide whether they generally accept the methodology.

As I recall, two experts used different methodologies to compare the shriek to a voice exemplar provided by the defendant. One methodology has been used for many years and the other one, which was developed recently, involves the use of a software program.

Both experts have excluded the defendant as the source of the scream.

Since the first method has been used for many years, it probably has survived a Frye challenge in Florida.

The second method may be too new to have been challenged at a Frye hearing.

The glaring, and I believe fatal, omission in O’Mara’s motion for a Frye hearing is the absence of any supporting affidavits from experts in audiology that one or both of the methodologies used are not generally accepted by audiologists as capable of producing accurate and reliable results.

Nobody gives a damn about what the non-expert lawyer thinks. He is not qualified to express an opinion about general acceptance of these methodologies.

Therefore, I would deny his motion for a Frye hearing.

Notice that regardless whether Judge Nelson grants or denies O’Mara’s motion, the State will still be required to lay a proper foundation for each of its expert audiologists at trial pursuant to Evidence Rule 702 that the witness is a duly qualified expert in the field and the result obtained using the particular methodology in question will assist the jury to decide who is screaming.

In conclusion, if I were the prosecutor, I would be inclined to try the case without putting on any audiologists during my case-in-chief for the simple reason that I do not believe they are necessary. This is another illustration of the KISS rule.

BTW, all that sparring about whether Tracy Martin could identify Trayvon as the source of the shriek does not matter.

Hardly anyone ever shrieks like that and lives to tell about it, so it stands to reason that no one, including his father, ever heard Trayvon utter a shriek like that. This may explain why it may not be possible for any expert to positively identify the source of the shriek without considering the circumstances or context that produced it.

That’s why it sounds inhuman.

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Thank you,

Fred


Zimmerman: O’Mara admits he cannot prove defendant utters terrified shriek

May 5, 2013

Sunday, May 5, 2013

Good Evening:

Amanda Sloane of HLN TV reported last Tueday after the hearing before Judge Nelson:

Cries for help: Is it Zimmerman or Trayvon?

Defense attorney Mark O’Mara said Tuesday that a 911 call could be the key piece of evidence in the case against George Zimmerman. In the background of the audio recording, you can hear someone screaming for help.

If it’s Zimmerman, O’Mara said it shows that the night watchman was the one under attack “and documents his story completely — it also documents his injuries.” If, however, it’s 17-year-old Trayvon Martin’s voice on the recording, then it could show Zimmerman was “acting in a very aggressive way toward him,” O’Mara said.

So which one is it?

O’Mara told In Session correspondent Jean Casarez that witnesses for the prosecution and the defense can’t seem to agree. So, he wants to have a hearing to decide if anyone should be able to testify about the voice at all.

Should jurors be able to decide for themselves whom they hear on the call?

Translation of O’Mara-speak into ordinary English: O’Mara knows that Trayvon uttered the 40-second terrified shriek.

Quite an admission by the man who has been so certain in the past that his client uttered the shriek.

Most of us are not surprised because we figured it out last summer.

We have been wondering when everybody else would finally figure it out.

So, what does O’Mara want to do?

He wants to exclude the tape, so the jury will not even hear it.

There is absolutely no chance Judge Nelson will grant that motion.

The legal rule is that arguments regarding the identity of the person who uttered the terrified shriek go to the weight that the jury should assign to the opinion of each witness and not to the admissibility of the testimony itself.

Notice the disappearing defense.

No immunity hearing and now this damning admission.

Say good-bye, George.

Justice for Trayvon

(H/T to Elcymoo for providing the link to the HLN article)

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