Zimmerman: Anticipating Mark O'Mara's Closing

Mark O'Mara will give his closing argument tomorrow morning, using a vivid computer animation showing step by step the defense theory of how the encounter occurred. There were hours of testimony about the accuracy of the animation, and the Judge ruled it would not come into evidence but O'Mara could use it as a demonstrative exhibit during his closing.

In his closing today, State's Attorney Bernardo de la Rionda used Powerpoint slides that seemed straight out of a 1990's continuing legal education seminar. They were impersonal and had too much text. The jurors couldn't possibly read it all and listen to him talk at the same time. I said in my earlier post that his theme of "assumptions" was a poor one, because coupled with his tossing rhetorical questions at the jury asking "isn't it possible" that such and such happened without answers, he merely created the very reasonable doubt he is obligated to overcome for a a conviction. Surely it wasn't lost on the jurors that when he told them (more than once) to "use your G-d given common sense" he was really telling them he didn't have the goods and wanted them to ignore the contrary evidence and rely on "assumptions" instead of proof. [More...]

I have no doubt that O'Mara will give an excellent closing. For each point he makes, he will remind the jury of which witness or exhibit supports it. He'll have the animation. He'll be calm. He invites trust.

Since I'm convinced there's no match between what O'Mara will do tomorrow and what de la Rionda did today, I'm focused on the state's next move.

The prosecution gets the last word because they have the burden of proof. De la Rionda's closing was so weak, I'm wondering if it wasn't planned to be that way, to keep the defense from guessing what John Guy will unleash in his closing. The rebuttal closing by BDLR's co-prosecutor John Guy is what I'm focusing on now.

Shorter version: It was a lousy day for the prosecution's case but they're sneaky, as demonstrated throughout this trial, from the withholding of the identification of material extracted from Martin's phone until jury selection (providing a bin file instead) to not disclosing Rachel Jeantel's lies about her age and hospital story for months, to this morning's attempt to ambush the defense by asking for a lesser included offense on third degree murder with child abuse, when just yesterday they claimed they would be asking for a lesser of aggravated assault.

In other words, I'm not breaking out the bubbly yet. Instead, I'm going to try and figure out what trick of illusion John Guy has stored up his sleeve. I'll start a new post for his rebuttal closing shortly.

In the meantime, today can best be summed up as Advantage: Defense. The biggest loss for the state was the court's refusal to instruct the jury on the aggressor portion of the self-defense instruction, which creates an additional hurdle for a defendant who asserts self-defense if he provoked the victim's use of force against himself.

The state's theory hasn't changed from day 1. We can all recite it by heart: Zimmerman improperly profiled Martin as a criminal and pursued him, making Zimmerman the one who initiated the confrontation. The state can argue that it amounts to ill-will, hatred and spite, but it doesn't defeat Zimmerman's self-defense claim. If the jury finds Zimmerman acted in self-defense, his actions were justified and lawful, and he's not guilty of either murder 2 or manslaughter.

It's a thin reed the state is hanging on by, which is precisely why I think they're up to no good and will pull some kind of stunt tomorrow.

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    Bernie De la Rionda reminded me (5.00 / 1) (#1)
    by Payaso on Thu Jul 11, 2013 at 10:08:17 PM EST
    of a defense attorney scrambling desperately to raise reasonable doubt.  Except that guilt has to be more than one of several reasonable inferences.

    It's really scary that the state went forward with this under a theory that Zimmerman might be guilty.

    It's scarier (none / 0) (#3)
    by HammerHead on Thu Jul 11, 2013 at 11:34:34 PM EST
    That jurors might think it's a reasonable compromise for Zimmerman to spend thirty years in prison because he might be guilty.

    The jurors won't know that it might be... (none / 0) (#4)
    by Cashmere on Thu Jul 11, 2013 at 11:42:03 PM EST
    30 years.  That they may opt for a compromised verdict, not understanding the punishment, is shocking.

    If there is a conviction, there will (IMHO) likely be a reversal.  I worry about the state retrying the case, however.


    I know! (none / 0) (#8)
    by HammerHead on Fri Jul 12, 2013 at 02:14:48 AM EST
    They'll just keep trying him again and again.  Until they get what they want.

    They're like drug addicts or hungry ghosts.

    Is that how it's supposed to work?


    John Guy is mostly to be feared (5.00 / 1) (#7)
    by DennisD on Fri Jul 12, 2013 at 01:03:15 AM EST
    because he's dramatic, attractive and has a strong presence. O'Mara should tell the jury to keep their eyes on the evidence and law, that that is why there was a trial, that impassioned arguments are not how a juror is to be swayed.

    Anyone notice that Guy sounds just like Kevin Costner?

    The state is trying to hammer home that Zimmerman is a liar and O'Mara needs to shut that down. He can do so by showing how Zimmerman's story has been borne out by the evidence and that the inconsistencies that the state wants to emphasize are minor, to be expected, that they were not problematic for the lead detective himself.

    Pink Elephants (5.00 / 1) (#15)
    by jbindc on Fri Jul 12, 2013 at 07:53:38 AM EST
    Did O'Mara just pull this trick out for they jury>

    "O'MARA: "If decision was made by State to not present evidence, don't consider it."

    What do most people do when you tell them NOT to think about pink elephants?  They think of pink elephants!

    The rebuttal closing (none / 0) (#2)
    by ding7777 on Thu Jul 11, 2013 at 10:25:09 PM EST
    Is rebuttal closing like rebuttal cross-examination (i.e, Guy can only rebut points made in O'mara's closing)?

    Good question! (none / 0) (#5)
    by Cashmere on Thu Jul 11, 2013 at 11:43:31 PM EST
    Doubt it as Jeralyn is predicting some "surprise" by the State.  They do seem to play dirty.

    Geragos (none / 0) (#6)
    by friendofinnocence on Fri Jul 12, 2013 at 12:06:43 AM EST
    Geragos said rebuttal in only supposed to be directed at items covered by the defense in its closing.  However, he says the prosecution always saves something powerful for the last thing the jury will hear, and will get it in regardless of what the defense covered.  So, I guess judges are universally complicit in ignoring the rules and give the advantage to the prosecution.

    I keep hearing the prosecution gets a rebuttal because they have the "burden".  My question is, if this burden is so hard to overcome, why do they win almost all of the cases? Why do they get to lie in court?  I keep hearing they have "leeway" in closing, but is that supposed to include telling lies to the jury?  It must, because MOM didn't object to any of them, except for "misinterpretation of the law".


    Your comment about Prosecution winning (none / 0) (#14)
    by Metternicht on Fri Jul 12, 2013 at 07:45:41 AM EST
    Sorry, but the real statistics (if I could present them) would show that the Prosecution fails in well over 50% (and I'd venture 80%) of cases.  The statistics that are appropriate are only those where the case is contested at trial, and not plea bargains.  

    I would, any day, trade the burden of proof of the State (beyond a reasonable doubt) for that of the defense: reasonable doubt.  

    The standard for objections to argument is restricted to statements and interpretations of law.  Argument is not evidence.  If a Persecutor says the "Moon is made of Green Cheese," the Defanse Attorney has no legitimate objection. However, the Defense Attorney has a legitimate objection if the Persevutor says "Statute ZXWQ states that the Moon is made of Green Cheese," if indeed the statute does not.


    Answer to your question (none / 0) (#13)
    by Metternicht on Fri Jul 12, 2013 at 07:34:36 AM EST
    The answer is yes, the Persecution is allowed to argue aboput the Defense theories.

    Is it just one or all? (none / 0) (#9)
    by ZucchiTadre on Fri Jul 12, 2013 at 04:12:02 AM EST
    The state can argue that it amounts to ill-will, hatred and spite,

    When I was watching Bernie today he seemed to be using the language of OR and that had me wondering.  Do they all three of those terms mean something slightly different from one anther in a legal sense?  Does it have to be just one or all three?  Maybe I'm just being hyper-technical but seems lawyers tend to be that way about their jargon.

    Just One (none / 0) (#10)
    by nomatter0nevermind on Fri Jul 12, 2013 at 06:00:06 AM EST
    . . . according to the text of an old post by Jeralyn, although the title confusingly has 'and'.

    The language is from case law, not the statute, which says 'a depraved mind regardless of human life.' Apparently 'ill will, hatred, spite, or an evil intent' is part of how the case law defines 'depraved mind'.

    Jeralyn has discussed the case law, but I don't know where.


    Case law and jury instruction (none / 0) (#11)
    by cboldt on Fri Jul 12, 2013 at 06:14:36 AM EST
    I don't where it appeared first, but "ill will, hatred or spite" appears in the jury instruction for 2nd degree murder.

    I find a reference to the phrase in a 1944 Florida Supreme Court case, Underwood v. State.


    Lesser Charges (none / 0) (#12)
    by Metternicht on Fri Jul 12, 2013 at 07:32:18 AM EST
    If I were O'Mara, I'd make a motion for a directed verdict on any lesser charges based upon 3rd Degree Murder or Child Abuse (the predicate crime for Murder 3rd) because the Persecution filed to present any evidence that the Defendant ever knew or had reason to know that TM was a minor.  I'd point out that the State can only convict on charges that are proven by evidence, and, to my knowledge (which isn't absolute on the case) the Persecutors presented no evidence that would support a charge of child abuse or endangerment.  

    Sloppy, Sloppy Persecutors.  

    This is not to forgive the incompetent Judge.  She should never have allowed the lesser charges where the evidence does not support those lesser charges.  Political hack.

    The instructions ened up just fine (none / 0) (#17)
    by cboldt on Fri Jul 12, 2013 at 09:17:50 AM EST
    #rd degree murder on child abuse was tossed.  Not in the charging document, not in evidence.

    Excellent presentation by O'Mara (none / 0) (#16)
    by melamineinNY on Fri Jul 12, 2013 at 09:09:09 AM EST
    just before the break addressing the unasked question of what was on Trayvon Martin's mind during the 4+ minutes (when State claims all he was doing was going (directly) home after buying Skittles and an iced tea drink.