New Discovery in George Zimmerman Case
The state released some of its 6th and 7th round of discovery in the George Zimmerman case to the media today. The material was released about a month ago to the defense. Not everything released to the defense is included.
The conclusions in the DNA reports of the gun, holster, trigger and slide are pretty much a retread of previously released reports. Contrary to what some news outlets are reporting, they don't hurt Zimmerman's case since Zimmerman never said Trayvon Martin grabbed or even touched his holster or gun. He said he sensed or felt Trayvon reaching towards his gun after it became exposed while they were struggling on the ground, and that he grabbed Trayvon's hand to prevent him from getting to his gun. Obviously, Martin's DNA would not be on the holster or gun if Zimmerman stopped his hand from reaching them. [More...]
One of the drawings included appears to be that of Witness 6 (John), from his March 20 interview. The drawing is consistent with what he has said all along -- that he saw two males wrestling on the grass and then on the sidewalk. At both points, the male with the black shirt (Trayvon Martin) was on top. It appeared to him the man on the bottom (George) was struggling to get up.
The released material does not include cell phone records, which the state claims are exempt. The state obtained records on three phones: Zimmermans; Trayvons (belonging to Tracy Martin); and Witness 8 (Trayvon's phone friend Dee Dee.) It obtained Dee Dee's records by subpoena. George brought his phone to the police when requested in late March, and signed a consent to search. His February records were most likely obtained by a faxed supboena. A search warrant was issued for one of the phones, and most likely it was for Trayvon/Tracy Martin's phone. (The search warrant, return, and Tracy Martin's phone records from 1/1/12 to 3/1/12 were released together to the defense several months ago.) On March 5, police had asked Tracy Martin for the pin number to the phone and he declined to provide it, saying he would have to first consult with his lawyer. It seems they got a search warrant for the records instead. Why not a subpoena? Probably because they can't get "content" with a subpoena, and they didn't just want call records, but any text messages, photos, voice-mails, etc. stored on the phone.
The state has previously said it would not be publicly releasing Trayvon/Tracy's phone records, due to an exemption in Florida's public records law. Since the records contain Tracy's subscriber information, that seems to fit the exemption. But it's not clear to me that why the records for Witness #8 (Dee Dee) were not released. The state has previously released a report stating they subpoenaed records for 786-419-3726 on April 2, belonging to Witness #8 (Dee Dee) and had received an Excel spreadsheet of calls to and from her phone number between 2/26/12 and 4/2/12 and 9 pages of documentation.
The state says the records are exempt under Florida public record law 119.071(5)(d), which provides:
(d) All records supplied by a telecommunications company, as defined by s. 364.02, to an agency which contain the name, address, and telephone number of subscribers are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. (my emphasis.)
The phone records for this number do not contain a subscriber's name or address. According to the state's disclosed report, it is a Simple Mobile pre-paid phone account with no subscriber information. It seems to me the state should release the records, and at most, redact the last four digits of anyone else's phone number they think should be protected for privacy reasons. Whether intentionally or not, the state has already released her phone number.
The statute seems to provide protection to the subscriber of the phone, not to those who call or are called by the subscriber. While the state also maintained disclosure would reveal Witness 8's identity and the identity of Trayvon's parents, that's not quite accurate and it's not a good excuse. The records do not contain her identity, her phone number has already been disclosed by the state, we know the identity of Trayvon's parents, and in their interviews with police, they both disclosed separately contacting Witness 8 (Dee Dee.) See here and here.)
If the state wants to protect Trayvon's parents' phone numbers, they could do so by redacting the last four digits of their phone numbers. When Trayvon's parents first contacted Dee Dee is relevant to the issues in the case. The state has listed her as a Category A witness and relied on her phone calls with Trayvon in its affidavit for probable cause and at Zimmerman's bond hearing. Yet she didn't come forward for almost five weeks after the shooting, and when she did, she didn't go to the police, but to the Martins' lawyers. She is probably more identifiable by her voice than her phone number, which is already known, and she agreed to allow the Martins' lawyers to play portions of their taped interview with her for the media and public back in March. The Martins' lawyer at the time referred to their interview with her as an "oral affidavit."
At a minimum, the dates and times she placed and received calls should be made public. As should any GPS or cell tower information received which could show where Trayvon was at various points when he was speaking to her. The location records could support Zimmerman's version of events and impact the credibility of Dee Dee's recollection. Who can bring this to the court's attention? The Florida media. (The defense already has the information.)
While the state's report refers to her being a juvenile, it doesn't seem like there is a blanket protection under the public records law for juvenile witnesses, since the state has previously released two of her audio statements -- one with the state's attorney and one with the Martins' lawyers. (Added: I believe the juvenile reference pertains to Trayvon as the subject of the investigation, not Dee Dee. That disclosure seems to be on most of the reports.)
Nor does today's discovery include the report of Trayvon Martin's toxicology testing by NMS labs. Discovery previously released included the conclusion of the toxicology report, but not the actual tests. I'm not sure why those are exempt under the public records law. They don't depict the victim or the shooting. Here is the Volusia County Medical Examiner's webpage on disclosure of the contents of the autopsy report. Trayvon's autopsy was performed by their office. The state's public records law web page states:
While autopsy reports are public record, autopsy photos are confidential. An agency may not delete information from a public record in the absence of a statute providing for the confidentiality or exemption of such information. Nor may an agency refuse to release an entire record because it may contain some confidential or exempt information; rather the agency is required to redact the exempt material and release the rest of the record.
The medical report says the toxicology report was included with the autopsy and medical examiner's report. So why wasn't it released?
Also released today were a large number of e-mails to Sanford, FL officials, and the audio interview of the 7-11 clerk who said he did not recall Trayvon.
Here is a list I made in August of missing discovery I'd like to see. Very few of those items were supplied today.
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