Reaction to the George Zimmerman Bail Hearing
As Tom Maguire aptly notes, some of us have day jobs and can't spend two hours watching a hearing. So I didn't watch the George Zimmerman bail hearing live. But I just read CNN's transcript (parts 1, 2 and 3) (again thanks to Tom for the links.)
While it cuts out in places for commercial breaks, it appears to be almost a compete transcript. My thoughts, based on the transcript, are below. I also recommend Tom's analysis which I just finished reading after writing this post. I'll probably add some others views later, or in a new post, since this one is so lengthy. [More...]
Thoughts From Reading the Transcript (admittedly not knowing what was said during commercial breaks), first as to bond, then the backstory to the affidavit, the consequences of the state's strategy and the weaknesses in the state's case:
Did the Prosecutor Blow It or Did It Fold? Answer: Both
The parties had a private meeting with the Judge the day before the bail hearing that was closed to the media, at which George's clothing and more importantly, witness logistics, were discussed. So the attorney representing the state at the hearing, Bernie De La Rionda, knew that he would have an opportunity to cross-examine George Zimmerman's wife, father and mother.
LESTER: It was purely for logistical purposes to figure out how to get Mr. Zimmerman dressed for the hearing and how to secure the appearance of the witnesses in a manner which preserves their safety.
The state's attorney is, according to statements by Angela Corey, one of her top homicide prosecutors. He's obviously familiar with the state's burden at a hearing on whether bail should be granted in a case in which capital murder or a life felony is charged. I explained the burden at length, with citations, here.
In order for bond to be denied, the state must establish more proof of guilt than that required for a jury to find beyond a reasonable doubt that Zimmerman committed second degree murder.
The state's attorney didn't even try. He didn't call any witnesses or introduce any evidence on the issue of guilt. He told the judge he wasn't there to try the facts. In closing, he told the judge:
We feel that we've established at least probable cause if not more based on the facts. What it boils down to, he shot somebody.
Since probable cause is not the test at a bond hearing on life charges in Florida, and an Affidavit for Arrest warrant does not suffice as evidence a crime was committed, and the prosecutor obviously knows this, it seems he chose to concede the detention issue (without saying so directly) and instead limit his arguments to flight and dangerousness, perhaps in hope of having bond set high enough to be out of Zimmerman's reach, which would have the same effect as an order of no bond. While he threw out the figure "$1 million," he gave no reason why that amount was reasonable under the circumstances. It didn't even seem like a serious request.
Most likely, the prosecutor figured the state would lose the no bond issue given its high burden, and decided it was better to not present evidence at all, keeping its cards close to its vest. Only, it didn't work out that way.
Information Revealed Due to State's Strategy
It seems like the state didn't think its strategy through carefully enough and miscalculated, getting blindsided by O'Mara's calling one of the state's two investigators on the case, Dale Gilbreath, to the witness stand. Gilbreath was the co-author of the much-ballyhooed arrest warrant affidavit.. Since no prior arrangements had to be made for his safety, O'Mara may not have mentioned at the secret hearing yesterday that he intended to call the investigator. Nor did he have to. There's no requirement the parties exchange witness lists in advance for a bail hearing. It seems likely to me O'Mara knew at least one of the investigators would be in court and decided to surprise the state by calling him to the stand. Added: The investigator testified he did not know he would be called to testify, which means neither did the prosecutor.)
O'MARA: Did you bring any supporting documentation with you to the courtroom on his bond motion at all?
GILBREATH: No, I was not planning on testifying.
The prosecutor seemed completely unprepared for his cross-examination of the investigator. What stood out to me was the number of disclosures that suggest the state's evidence is speculative, at best, and the degree to which the state's attorney participated in the preparation of the affidavit.
The investigator testified he was not the one who chose the misleading, inaccurate, emotion-charged words and phrases in the affidavit, and the only others involved were his fellow investigator and "Bernie." The prosecutor's name is Bernie de La Rionda.
First he described the affidavit as a collaborative effort between the two investigators and their supervisor (who appears from later statements to be prosecutor de La Rionda.) Gilbreath said it wasn't his choice to use the word "profiling" (as in Zimmerman profiled Martin,) "confronted" (as in Zimmerman confronted Martin) or to put quotes around "these as*holes" and "f*cking punks" but no other phrases in the affidavit. There's a reference to the final affidavit being the third version, with the first two containing mistakes. It sounds like the affidavit initially written by the investigators was re-written by the prosecutor and they just signed off on the changes.
On the use of the word "profiling"
O'MARA: Why did you use the word profiling rather than noticed, observed, saw, or anything besides the very precise word profiled? And by the way, was that your word?
GILBREATH: I don't recall. This was a collaborative answer -- excuse me, collaborative document.
O'MARA: Between who in addition to the two people who signed it as being true?
GILBREATH: Detective Osteen and I prepared the majority of this. It was reviewed by our supervisor. There were several mistakes in it. They were corrected.
O'MARA: Do you know whose word profiling was?
GILBREATH: No, I do not.
A few minutes later, he says:
O'MARA: Who was in this decision making process?
GILBREATH: As I said, Detective Osteen and myself and Bernie.
The use of the word "profiling" was either picked by O'Steen or the prosecutor. My money's on de La Rionda. The word "profiling" is not typical cop jargon and is a legal term.
O'Mara also asked Gilbreath where the statement in the affidavit "Zimmerman felt Martin didn't belong in the gated community and called the police," came from -- he asked if Zimmerman told him that or if it came from his sworn statements.
Gilbreath responded that he has never spoken with Zimmerman and it came from Zimmerman's call to the police dispatcher.
But, Zimmerman never used those words during the call to the dispatcher. (Transcript here.) Since he doesn't recall it being in Zimmerman's sworn statements, and he never spoke to Zimmerman himself, (nor apparently did investigator O'Steen or anyone in the state's attorney's office after it got the investigation from the Sanford police) it seems to me those words were chosen by Prosecutor Bernie as well.
Moving on to the line in the affidavit stating Zimmerman followed Martin home, falsely assuming he committed a crime: Gilbreath says that wasn't his choice of words either.
GILBREATH: It was the three of us throughout the process. I don't recall who did which sentence in this. This was not everybody sitting in one room. This was proof given to somebody else and then prepared.
A reasonable but not definitive interpretation of these exchanges is that the investigators submitted a draft of the affidavit to the prosecutor, who said it contained mistakes, crossed things out and inserted and substituted his own words, had it retyped, signed by the two investigators and then submitted to the court.
Who chose the word "confronted"? That's not as clear but the upshot is that Gilbreath acknowledges he has no evidence Zimmerman "confronted" Trayvon as opposed to that the two just met up.
O'MARA: Zimmerman confronted Martin, those words. Where did you get that from?
GILBREATH: That was from the fact that the two of them obviously ended up together in that dog walk area. According to one of the witnesses that we talked with, there were arguing words going on before this incident occurred. But it was between two people.
O'MARA: Which means they met. I'm just curious with the word confronted and what evidence you have to support an affidavit... And I want to know your evidence to support the word confronted if you have any.
GILBREATH: Well, it's not that I have one. I probably could have used dirty words.
O'MARA: It is antagonistic word, would you agree?
GILBREATH: It could be considered that, yes.
O'MARA: Come up with words that are not antagonistic, met, came up to, spoke with.
GILBREATH: Got in physical confrontation with.
O'MARA: But you have nothing to support the confrontation suggestion, do you?
GILBREATH: I believe I answered it. I don't know how much more explanation you wish.
Added: The CNN transcript says the detective said "dirty words" but others who saw the exchange report he said "thirty words."
I don't feel bad for Gilbreath. He's got decades of experience, and here's his view of his obligation in signing a affidavit under oath:
O'MARA: And you swear this is true.
GILBREATH: I don't believe those statements are untrue.
Keep in mind this is the same affidavit that got what seems like the judicial equivalent of a rubber-stamp of approval from Judge Mark E. Herr at Zimmerman's first court appearance, minutes after it crossed Judge Herr's bench.
The State's Investigator Reveals New Facts Damaging to Its Case
O'Mara walked Gilbreath through the affidavit, establishing several things damaging to the state's case:
- The state never asked Trayvon Martin's father to identify the screaming voice on the 911 witness calls as being Trayvon's voice.
O'MARA: You're not aware of any inquiries made to Trayvon's dad as to whether or not he could identify that voice as being his son's? GILBREATH: No.
- The only outside analysis the state relied on to identify the screaming voice was that conducted for the Orlando Sentinel and the FBI. Neither provided insight.
O'Mara: Did you do any forensic analysis on that voice tape?
GILBREATH: Did I?
O'MARA: Did you or are you aware of anything?
GILBREATH: The "Orlando Sentinel" had someone do it and the FBI has had someone do it.
O'MARA: Is that part of your investigation?
O'MARA: Has that given any insight as to the voice?
- The state has no evidence who started the physical fight
O'Mara: So do you know who started the fight?
GILBREATH: Do I know?
O'MARA: Do you have any evidence that supports who may have started the fight?
- The state has no evidence contradicting that Zimmerman started to walk back to his car after the dispatcher told him he didn't need to follow Martin.
The Prosecutor Reveals How It Intends to Impeach Zimmerman:
De La Rionda tells Gilbreath when its his turn for cross-examination, "Mr. Gilbreath, I didn't know we were going to be trying the case." Again, it sounds like de La Rionda had decided not to press for no bond so as not to have to put on a case.
But he can't help himself and wants to show the state really does have evidence:
I'm not going to get into every little contradiction but wouldn't you agree that a lot of his statements can be contradicted by the evidence [of other] witnesses or just based on what he says himself?
De La Rionda then proceeds to give examples of things reported by others, not revealed so far in any police reports or official accounts released to the public:
Did he not describe to the police that Mr. Martin had him on the ground and kept bashing his head on the concrete over and over and just physically beating him with his hands?
...Did he also not state that at some point, he the defendant -- did he not state or claim that the victim in this case, Mr. Martin, put both hands one over his mouth and one over his nose so that he couldn't breathe?
...And all of sudden that's when he was able to get free and grab the gun. Or I'm sorry, Martin was grabbing for the gun, did he not claim that too at some point. climb that?
So the state will claim that at one time, Zimmerman said when he got free from Martin after having his head bashed on the cement, he reached for his gun. And that on another occasion, Zimmerman said Martin grabbed for the gun. And because these statements are inconsistent, Zimmerman is lying and his self-defense claim is not credible.
Only, during de La Rionda's cross-examination of Zimmerman, Zimmerman denied giving inconsistent versions of events to police. De La Rionda couldn't ask him about the specifics of his earlier statements. Zimmerman took the stand only to make a statement of apology directed to the Martins, and not to testify about the crime. Questions about his prior statements to police about the charged crime were outside the scope of his testimony. De La Rionda could only question Zimmerman about matters relevant to his apology.
But, I'm wondering whether Zimmerman ever said both of those statements to police, or Zimmerman said one and the other is what a relative or spokesman for Zimmerman represented on TV as being what Zimmerman said to them. If it's the latter, it means little to nothing.
De La Rionda kept returning to the theme that there was no evidence Trayvon was breaking into anybody's house or committing any type of crime, and had a perfect right to be walking down the street that night, with his lawfully purchased skittles and iced tea.
He ignores the issue of whether Trayvon or Zimmerman turned the encounter into a physical one. He never claims Zimmerman attacked Trayvon or Trayvon didn't attack Zimmerman.
Through a series of leading questions, the state's theory becomes even clearer. It's that Zimmerman, by asking Martin a question when they first encountered each other, "confronted" Martin.
And sir, you were asked about the next paragraph here that Zimmerman confronted Martin and a struggle ensued and you were asked a lot about what "confronted" means. If Mr. Martin was minding his own business and was going home and somebody comes up to him and starts accusing him (inaudible), wouldn't you consider that a confrontation?
DE LA RIONDA: That is, Mr. Martin didn't turn around and start -- he was minding his own business and Mr. Zimmerman's the one that approached Mr. Martin, correct?
But that last question was just de La Rionda testifying, not the evidence. Because the state chose not to put on any evidence at the hearing, the question assumed facts not in evidence, was objected to, and the court sustained the objection. So there is still no evidence Zimmerman first approached Martin.
More importantly, I think who first approached whom is irrelevant if Trayvon threw the first punch, and Zimmerman sustained a broken nose and the lacerations we saw in the photo released today by ABC News, taken three minutes after the shooting. Whether Trayvon was doing anything wrong before their encounter is not the issue and neither is who spoke to the other first. No one is legally permitted to punch another person because they were asked a question.
If Trayvon struck Zimmerman first, the only issue will be whether the attack was severe enough to reasonably cause a person to fear serious bodily injury or death. And even in the unlikely event the Court were to agree with the state that Zimmerman was the aggressor merely for following Trayvon for no good reason, he'd still be entitled to claim self-defense after such an attack by Trayvon, unless he had the opportunity to get away.
The state did not even suggest today that Zimmerman had an opportunity to get away from Trayvon.
Last for now: the weakness of the state's evidence is shown in this question and answer:
DE LA RIONDA: Why did you use the word "confronted" sir?
GILBREATH: Because Zimmerman met with Martin and it was compiling the facts that we had along with the witness statements of the argumentative voices and the authoritative voice being given from one of the witnesses and then the struggle that ensued that came from several witnesses.
This is an acknowledgement that no one saw the start of the struggle. Most of the witnesses described what they heard. A few may have seen it in progress. We're back to the "authoritative voice" that was heard, but its speaker not seen. Zimmerman has a low-modulated, almost timid voice. What happens if recordings of Trayvon are introduced and his voice is deep and assertive? Even his phone friend says he demanded Zimmerman tell him why he was following him. If Trayvon's voice turns out to be more authoritative than Zimmerman's, this authoritative voice theory will hurt, not help the state's case.
De La Rionda never even insinuates there is evidence Zimmerman started the physical alteration. Why? Most likely, because they have no evidence of it. And, in my view, they probably have evidence it was Martin who started the physical fight. They have at least one witness, John, who told them Zimmerman was the one crying out for help and on the bottom during the struggle.
One of the first rules of trial practice is that a lawyer, in creating a theme and a theory for a case, must accept the "facts beyond change." You build your story from that.
De La Rionda's strategy and questioning today leads me to believe even more strongly that they won't dispute that Martin was the physical aggressor -- the one who first resorted to violence. Instead, they may tell a story that has Martin being followed for no good reason, and that Zimmerman's verbal demand to know what he was doing in the neighborhood, based on his unjust perception that Martin was a criminal, somehow provoked Martin into hitting him. They will add that Martin was scared, acted impulsively, and didn't hit Zimmerman hard enough to warrant a reasonable fear by Zimmerman of serious bodily injury or death.
Trying to cast Zimmerman as a de facto aggressor because Martin shouldn't have been followed in the first place, will not work. For one thing, Zimmerman wasn't breaking the law in following Trayon or even in demanding he account for his presence, if that's what happened.
Was it morally objectionable? Yes, but that's why citizens' watch groups and programs encouraging people to report suspicious behavior are a bad idea. "Suspicious" is far too subjective a term.
Also, the state doesn't dispute that Zimmerman was on a personal errand that night and not acting in his capacity as watch person. Nor is Zimmerman a law enforcement officer or agent of the state, whose actions are subject to the 4th Amendment.
No one is entitled to respond to being followed or verbally confronted with physical force. No matter how much of a saint Martin was before that, if he threw that first punch, I think Zimmerman's only burden is to show some evidence, not a lot, that as a result of the force used against him, he was reasonably in fear of serious bodily injury or death.
Even if he is saddled with the extra burden of showing he couldn't get away (which in my view he shouldn't be), his medical records showing a broken nose (which O'Mara offered to produce today) and the photographic evidence of his head injuries taken three minutes after the shooting, should easily suffice to meet it.
The state didn't do well today. O'Mara and Zimmerman fared better. I think Zimmerman's 2005 arrest is a dead issue now. The judge, in downplaying its relevance at the bond hearing, is probably going to find it inadmissible at trial. Not only did it not result in a conviction, it was too long ago and dissimilar to the shooting.
My biggest objection to the prosecutor's questioning of Zimmerman today was when he asked:
Ok. And tell me, after you committed this crime and you spoke to the police, did you ever make that statement to the police, sir? That you were sorry for what you've done or their loss?
It has not been established that Zimmerman committed any crime. He had the opportunity to prove a crime today and chose not to. Nor has Zimmerman ever admitted committing a crime. While O'Mara didn't object, someone needs to call him out for it.
Just to be clear, I have no inside information. I view all cases through the lens of the defense. My conclusions are based on my analysis and assessment of information that has been publicly released by officials and presented in court, my research on Florida law, other documentation such as photographs I believe to be credible, and my instincts and experience as a criminal defense lawyer. Many facts have yet to be revealed, and my opinions are subject to change as new facts develop.
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