Judge Questions Zimmerman on Right to Testify

There was a very contentious exchange between Defense Counsel Don West and Judge Nelson as she placed Zimmerman under oath to ask him whether he wanted to testify. West said the case isn't over and he is not ready to answer. She overruled his objections and kept grilling Zimmerman about whether he needed more time to decide.

Defense expert Dennis Root is back on the witness stand. Mark O'Mara will call two more witnesses whose testimony will be brief, and then rest.

This morning, the judge granted the state's motion to exclude text messages to and from Trayvon Martin about his engaging in fights. She ruled the computer animation could be shown to the jury as a demonstrative aid, but not admitted into evidence.

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    Premature to demand a decision (5.00 / 3) (#2)
    by cboldt on Wed Jul 10, 2013 at 01:11:49 PM EST
    The state hasn't even rested yet.  Nelson is attempting to draw information from Zimmerman, for the benefit of the prosecution.

    If she is concerned about his rights, she tells him the last minute he may decide, and confirm that he understands that.  Instead, she is demanding a decision, and she wants it before the state has committed to final rest.

    That's the 3rd time she asked him. (none / 0) (#4)
    by Teresa on Wed Jul 10, 2013 at 01:31:21 PM EST
    This time under oath. I wondered about timing and you answered my question, too. Thank you cbolt.

    I don't understand asking in advance like she did even yesterday.


    Guy's cross opened up allowing (none / 0) (#5)
    by Teresa on Wed Jul 10, 2013 at 01:33:09 PM EST
    Root to give an answer to to O'Mara if GZ's actions were appropriate. Right? Because that was one of the no no's and she allowed it after the sidebar where O'Mara started saying "Mr. Guy asked..."

    Defendant has a constitutional (5.00 / 2) (#7)
    by oculus on Wed Jul 10, 2013 at 01:47:25 PM EST
    right to testify and the judge is correctly making a record of  his voluntary and knowing waiver, I gather.

    To ensure that a criminal defendant's right to testify is safeguarded,
    trial judges should be given the responsibility for both informing the de-
    fendant of this constitutional right and making a record of the defend- ant's knowing, voluntary and intelligent waiver of this right.125
    Assigning this role to the trial judge is consistent with Supreme Court precedent126 and such procedures are not foreign to trial courts.
    . [Fordham, 1991.]

    But why ask him three times now before (none / 0) (#8)
    by Teresa on Wed Jul 10, 2013 at 01:55:56 PM EST
    the case is over? Yesterday, even.

    Is he equivocating? She needs a clear record if h (none / 0) (#12)
    by oculus on Wed Jul 10, 2013 at 02:25:05 PM EST

    Can GZ change his mind later? (none / 0) (#9)
    by ruffian on Wed Jul 10, 2013 at 02:12:01 PM EST
    Clearly, yes, because she just asked again (none / 0) (#10)
    by Towanda on Wed Jul 10, 2013 at 02:18:11 PM EST
    and a commentator says that the judge is doing this to counter any claim of ineffective assistance by counsel.

    Still doesn't make sense to me, owing to the timing.  A decision that is effective now could be ineffective later.

    And she keeps asking first and then telling him to confer with his counsel.  I would ask first if he has had time to confer and to decide, and if not, don't ask for his definitive decision.

    A commentator just called out the judge for "unnecessary roughness."


    Wierd...would like to know what is (none / 0) (#11)
    by ruffian on Wed Jul 10, 2013 at 02:25:00 PM EST
    prompting her to do that. Someone said it aids the prosecution, but I don't see how.

    Remember the judge generally tries to (none / 0) (#13)
    by oculus on Wed Jul 10, 2013 at 02:27:28 PM EST
    give the jury an estimate of when the case will be submitted to them.  And they are sequestered.

    It allows them to foresee what to do in rebuttal (none / 0) (#15)
    by cboldt on Wed Jul 10, 2013 at 02:47:34 PM EST
    Knowing what witnesses will come in, especially the defendant, gives the opponent time to react.

    And the defendant should get the last word.


    A computer animation? In a murder trial? (5.00 / 1) (#17)
    by Andy Lewis on Wed Jul 10, 2013 at 02:56:47 PM EST
    "POW!  BIFF!  SOCKO!!"

    Ya gotta love it.

    Reasonable: Did you watch any of the trial? (5.00 / 1) (#35)
    by Aunt Polgara on Wed Jul 10, 2013 at 09:06:46 PM EST
    The question now is what else but the use of deadly force with his weapon did he intend to do when he got out of his car and followed Trayvan to confront him?

    No evidence that GZ intended to confront TM.


    In which case intent is clear. C.) He pursues a confrontation armed with a weapon with safety off and round chambered.

    Again, no evidence that he pursued a confrontation. Also, the gun he was carrying had no external safety and the testimony from law enforcement was that it should be carried with a round in the chamber.


    Then it Follows that he was intent on using deadly force in any confrontation and was seeking an excuse to do so.

    Since there is ZERO evidence that he wanted a confrontation, (or for that matter ever wanted a confrontation with those he reported to police), it doesn't follow that he wanted an excuse to do so.

    If given the known facts as established in trail ( A, B, C, above) and he sought to avoid a physical confrontation, that he knew he was unlikely to prevail in, then the only reasonable alternative, if one were to accept the pressing need to pursue Trayvon, would be to do so with the gun in hand to dominate and intimidate from the very beginning.

    Those are not known facts, and there is zero evidence that he pursued TM with gun in hand. In fact, when the NEN operator said they "didn't need him to follow" TM, the wind noise stopped and GZ stopped following TM.

    Reasonable, there are (5.00 / 0) (#37)
    by Aunt Polgara on Wed Jul 10, 2013 at 09:33:34 PM EST
    so many factual errors in your post, it is hard to know where to start.

    1. Zimmerman's gun didn't have an external safety.

    2. It was testified to that carrying a round in the chamber is the recommended way to carry that gun.

    3. Z was not "directed" to stay in his car.

    4. There is no evidence that Z was concerned about a crowbar

    5. Z attempted to follow TM to let the cops know where he had run to and then stopped when he was told that the cops didn't need him to follow.

    6. You are right that TM didn't use insulting language to the police about GZ, only to his friend Rachel, unless you consider "crazy ass- cracker" as a compliment.

    7. GZ wanted to become a lawyer and ultimately work for the DA's office, as testified to by his instructor. He was not a wannabe cop. In fact, he rejected an offer to become a civilian volunteer for the police dept.

    8. GZ was never instructed to "stay in his car"

    9. Zimmerman was not "bigger" than TM. He may have been heavier, but scroll down here to check out a picture of TM's physique compared to GZ's "soft" physique.

    10. By Rachel's own testimony, TM challenged GZ first even though he had plenty of time to make it safely to Brandy Green's house.

    11. Do you have any theory on why GZ called the police before he supposedly set out to kill TM?

    There was no police instruction (5.00 / 0) (#40)
    by chezmadame on Wed Jul 10, 2013 at 09:45:42 PM EST
    to stay in the car. GZ was already out of the car when he spoke to the dispatcher.

    reasonable's comments were deleted (none / 0) (#43)
    by Jeralyn on Thu Jul 11, 2013 at 03:04:03 AM EST
    for demonstrably false facts.

    You need a new name! (5.00 / 1) (#41)
    by Teresa on Wed Jul 10, 2013 at 09:55:18 PM EST
    You missed my point which was since the gun was zimmermans only option in case of any confrontation if he wished to avoid using it he should have been carrying it in his hand to immediately cow Trayvon.

    That's intentinally breaking the law and not a short sentence in Florida. You're wrong on other facts, too. I didn't know a lot either until I watched the trial.

    Jeralyn, is the judge's action typical? (none / 0) (#1)
    by Towanda on Wed Jul 10, 2013 at 01:06:19 PM EST
    I would think it prejudicial -- or whatever would be the appropriate legal word -- and cause for appeal for a judge to create such a contentious exchange (I just watched it) that, if I were a juror, makes a big deal of Zimmerman testifying or not testifying and make it look bad, if he does not do so.  

    The jury was not in the courtroom (5.00 / 2) (#3)
    by cboldt on Wed Jul 10, 2013 at 01:12:34 PM EST
    The exchange didn't make an impression on the jury.

    Ah, thanks; I ought to have guessed that (none / 0) (#6)
    by Towanda on Wed Jul 10, 2013 at 01:43:09 PM EST
    and thank heavens for that.

    Order of questions and decisions (none / 0) (#14)
    by cboldt on Wed Jul 10, 2013 at 02:42:34 PM EST
    Nelson elicited from Zimmerman that he would not testify.  After that, she asked whether or not the state would have rebuttal.  The state said it would have two or three.

    Nelson finds that there is substantial evidence of 2nd degree murder, and substantial evidence against self defense, denies Zimmerman motion for judgment of acquittal.

    Jeez, judge, even I know the answer (none / 0) (#16)
    by Teresa on Wed Jul 10, 2013 at 02:52:02 PM EST
    to this one! And they're still talking.

    What is the hang up? (none / 0) (#18)
    by Teresa on Wed Jul 10, 2013 at 03:20:58 PM EST
    A definition of rebuttal? I can handle that one, lol.

    They are debating (5.00 / 1) (#19)
    by jbindc on Wed Jul 10, 2013 at 03:23:46 PM EST
    Whether the state recalling the gym trainer is proper rebuttal material

    I hear from the commentary that issue (5.00 / 1) (#20)
    by ruffian on Wed Jul 10, 2013 at 03:27:21 PM EST
    is whether the gym owner's ad for a 'Zimmerman workout' is proper fodder for rebuttal. Commentators are not sure if it just appeared today, or if it was already there when the gym owner testified and the prosecution just found it.

    I'd bet money (none / 0) (#38)
    by SuzieTampa on Wed Jul 10, 2013 at 09:43:08 PM EST
    that commentators are misunderstanding the gym owner. He testified that GZ lost up to 80 pounds by going on a diet suggested by the owner as well as by increased exercise. I imagine a lot of people would love to know what that diet is.

    I don't see the wording on the website as an "ad." I see it as a convenient way to tell people that the owner would get back to them after the trial is over.


    This judge is bending over for prosecution (none / 0) (#21)
    by RWunder on Wed Jul 10, 2013 at 04:23:09 PM EST
    The judge is aggressively pro prosecution in my opinion. If I were the defendant in this or any other case and the judge asked that question before the defense had called all the witnesses it wanted to call I would tell that judge I don't know and I object to you asking me. Another way of saying pound sand you control freak.

    Although a commentator calls it (5.00 / 2) (#23)
    by Towanda on Wed Jul 10, 2013 at 04:32:46 PM EST
    an attempt by the judge to avoid appeal on the grounds of ineffective counsel (not advising him of his right to testify in his own defense, etc.), I tend to agree with you that the judge's actions in continually asking the question, and too soon, could even constitute questions as to her conduct of the case.  Add in her rulings to not allow the defense to bring forward evidence accepted in other courts (as we know owing to Jeralyn's excellent essays) and to not allow the defense to even have time to depose witnesses, and . . . all not good.

    Judge's questions (5.00 / 2) (#24)
    by RWunder on Wed Jul 10, 2013 at 04:43:42 PM EST
    Yes. I don't think it's too much for her to wait until the defense says it rests. Then she can question the defendant allshe wants if her true motivation is simply to protect the defendant's right to testify. Rather, I suspect she is more concerned with absolute control of the court and the schedule etc. Disgusting waste of judiciary to have this mindless control.

    Don't forget the sequestered jury. (none / 0) (#31)
    by oculus on Wed Jul 10, 2013 at 07:48:32 PM EST
    West has really locked horns (none / 0) (#29)
    by MKS on Wed Jul 10, 2013 at 06:26:53 PM EST
    with the Judge.  He has in the past continued to argue after the Judge has uttered the magic words, "I have made my ruling."   Last night he did it again.

    I believe the tone of the Judge today is the result of past problems with West.  She and O'Mara seem to get along fine.


    Donnelly's testimony stays in (none / 0) (#22)
    by jbindc on Wed Jul 10, 2013 at 04:26:10 PM EST
    No sanctions

    ^^^Misstatement of known facts (none / 0) (#26)
    by Teresa on Wed Jul 10, 2013 at 05:58:36 PM EST

    Prosecution has the burden (none / 0) (#27)
    by cazinger on Wed Jul 10, 2013 at 06:19:32 PM EST
    Even if what you say is true, the prosecution has certainly not established part C.) that you list above.  They have not established that GZ pursued a confrontation, as another reasonable conclusion is that GZ merely wanted to follow from a safe distance in order to keep the suspicious person in sight so that he may more effectively direct the police to that person's position.  Given GZ's statement that "these @ssholes always get away", that pretty much establishes that GZ would expect that the suspicious person is trying to ... get away.  Given the time sequences involved (several minutes lapsing from the time GZ loses sight of TM and presumably (according to RJ) vice versa), there certainly WAS time enough for TM to "get away".

    These are all reasonable conclusions that the prosecution has yet to produce ANY evidence to contradict.

    There is ZERO evidence that GZ sought or initiated any confrontation.  There is ZERO evidence that GZ even tried to follow after it was suggested that he not do so.  There is ZERO evidence that GZ started ANY physical altercation.  There is AMPLE evidence that TM did attack GZ.  In fact, the facts you describe (GZ's lack of physical prowess) suggest that the last thing GZ wanted was a physical confrontation.

    Or are you suggesting that GZ started the physical confrontation and then let himself get beat severely about the head for in excess of 40 seconds just in order to have an excuse to shoot TM.  That defies logic (especially given the unknown nature of the other party - they could have been armed themselves).

    After all (none / 0) (#28)
    by cazinger on Wed Jul 10, 2013 at 06:22:30 PM EST
    After all, if GZ thought TM was trying to commit a burglary, then GZ could also reasonably conclude that TM WAS armed, perhaps at least with a crowbar or screwdriver or some other tool a burglar might use.  That seems like WAY too much risk of loss to be starting a physical altercation in that situation, just as an excuse to use your pistol.

    There is something in between (5.00 / 2) (#30)
    by Towanda on Wed Jul 10, 2013 at 07:38:20 PM EST
    for which we have learned to watch in my neighborhood:  When we are being watched, "cased," for patterns such as our schedules, unlocked garage doors, etc.  The person checking out our area often is young by comparison with the ones who follow to actually commit the crimes.

    Jeralyn, what do you think? (none / 0) (#34)
    by citizenjeff on Wed Jul 10, 2013 at 08:24:42 PM EST
    Was the judge out of line to press Zimmerman on whether or not he had made a decision, and on how much more time he needs to decide?

    It has a built in safety, but I agree with you (none / 0) (#42)
    by Teresa on Wed Jul 10, 2013 at 09:57:01 PM EST
    on the stupidity of concealed carry laws, though.