Zimmerman: Predicting the State's Rebuttal Closing

I ended my last post on today's closing argument by the state and Mark Mara's anticipated closing tomorrow, with this thought:

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. It's Guy's rebuttal, not O'Mara, that I'm focused on now.


I think John Guy is going to pull out some exhibit that was admitted by stipulation but not focused on at trial, and make some grandiose claim it shows something it does not -- but the defense will have no chance to rebut him. All of the exhibits that were admitted into evidence go back to the jury room for their review in deliberations.

There were a lot of exhibits the parties admitted in a hurry at the end of a long trial day or right before a recess. Some of the court's daily minutes and exhibit lists (available here) individually list the exhibits admitted that day, but others don't.

What's the state hiding? I have some theories, but I need to do some fact-checking of the trial record, so check back later or before tomorrow. In the meantime, let us know if you come up with anything.

Update: Guesses: Something to do with (1) the clubhouse video clip they introduced on 6/28 of a shadow figure and one headlight and/or (2) the button Trayvon Martin was wearing which his mother testified he always wore and (3) Selene Bahadoor, another shadows and fog witness.. I think they will argue he was not at the T but claim he was closer to Brandy Green's house.)

Update: I still haven't had time to watch Guy's closing, but from what I'm reading elsewhere, he didn't play fast and loose with the evidence, but with the race, gender and sympathy card instead.

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    Rebuttal closing (5.00 / 1) (#13)
    by MJW on Fri Jul 12, 2013 at 01:22:52 AM EST
    Unless there's a district split between the 4th and 5th DCAs, the rebuttal closing will have to be a true rebuttal, not a free-ranging second closing.

    Brown v. State, 18 So. 3d 1149 (Fla. 4th DCA 2009):

    The proper limit of a rebuttal is a reply to what has been brought out in the defendant's closing argument. The State's rebuttal not only contained references to evidence that was never admitted at trial, but went beyond its function as a reply to Brown's closing argument. This was improper.

    (Quotation and citation omitted).

    But O'Mara will argue the kitchen sink (none / 0) (#16)
    by Jeralyn on Fri Jul 12, 2013 at 01:30:02 AM EST
    so I don't know what would be outside the issues he raises. I would think anything admitted into evidence that bears on any topic O'Mara raised is fair game for him to bring up in rebuttal. Again, I'm thinking about things that were admitted but not discussed or dwelt on.

    That's no doubt true (none / 0) (#19)
    by MJW on Fri Jul 12, 2013 at 01:45:57 AM EST
    But I do think the fact that it has to be a rebuttal somewhat changes the dynamic. My own state has no such restriction, and the state prosecutor can waive the initial closing and argue everything in the "rebuttal."

    Why is the defense not given a chance to rebut? (none / 0) (#1)
    by vml68 on Thu Jul 11, 2013 at 10:24:51 PM EST

    The prosecution gets the last word (none / 0) (#2)
    by Payaso on Thu Jul 11, 2013 at 10:47:55 PM EST
    because they have the burden of proof.

    Thanks! (none / 0) (#5)
    by vml68 on Thu Jul 11, 2013 at 11:14:12 PM EST

    What's the logic? (none / 0) (#8)
    by citizenjeff on Thu Jul 11, 2013 at 11:51:05 PM EST
    I don't understand why the fact that the burden of proof is on the prosecution, means the defense should get one less chance to argue.

    Primacy and recency (5.00 / 1) (#24)
    by jbindc on Fri Jul 12, 2013 at 08:01:54 AM EST
    People generally remember the first and last things they hear better, so with the higher burden, that's why the prosecution goes first and last.

    Also, the prosecution usually (always?) sits closest to the jury in a court room for the same reasons.


    Think of it this way: (5.00 / 1) (#25)
    by Anne on Fri Jul 12, 2013 at 08:06:22 AM EST
    Picture the scales of justice. The presumption of innocence tips them in the defendant's favor.  Giving the state, which has to prove guilt, the last word, brings those scales back into balance.

    Hope that makes sense.


    Same rule applies in (none / 0) (#23)
    by MKS on Fri Jul 12, 2013 at 07:56:07 AM EST
    civil cases.  Universal rule built into the common law jury system.....

    Beyond the scope objections (none / 0) (#3)
    by MKS on Thu Jul 11, 2013 at 11:02:49 PM EST
    But almost everything will be covered, so a lot will be fair game.

    Bringing up exhibits in closing that were not discussed during trial:  Not so sure jurors will pay attention or think it fair.  If it wasn't worth dicussing during trial testimony, why should the jurors care now at the eleventh hour?

    I have seen this tried a couple of times and it did not work...anecdotal observation, so YMMV.

    Recency effects (none / 0) (#17)
    by BackFromOhio on Fri Jul 12, 2013 at 01:32:46 AM EST
    Whatever is presented at closing has the benefit of "recency effects" -- a term that refers to our tendency to recall things presented to us most recently.  

    Is there something about that Button? (none / 0) (#4)
    by Nettles18 on Thu Jul 11, 2013 at 11:10:30 PM EST
    You'll recall that the locker room couldn't be opened the day that Sybrina testified.  

    Sybrina was the first witness and BDLR said that his first two witnesses didn't need any exhibits and they could just go ahead.  So they did and started with Sybrina.

    Right after he called her to the stand he asked for a sidebar and left Sybrina sitting in the witness box for a long time.  Before she got off the stand he said she'd be recalled once the evidence room got unlocked.  He then called her up after the door got opened and once again asked for a sidebar.

    All he did was ask Sybrina to identify the button as belonging to Trayvon and then she was done again.

    What was that all about?  

    I wondered that myself... (none / 0) (#6)
    by Cashmere on Thu Jul 11, 2013 at 11:37:08 PM EST
    What could there possibly be about the button that would impact the jury?

    BDLR implied that the button (none / 0) (#7)
    by Nettles18 on Thu Jul 11, 2013 at 11:42:35 PM EST
    was pulling the sweatshirt away from the skin today in his closing.  I thought that was really weird.

    Could they say that Trayvon was pulling away and GZ grabbed the button to hold him in place and shot him?

    I'm reaching here but it could be a theory to explain why the shirt wasn't against his skin if he is pulling away and not leaning over at the time of the shot.


    That seems strange... If Zimmerman was (none / 0) (#9)
    by Cashmere on Fri Jul 12, 2013 at 12:03:39 AM EST
    pulling on something, it could have been the button or the sweatshirt itself.  Was there any evidence of Zimmerman's DNA on the button?  How curious.

    Assuming there is no DNA on the button... (none / 0) (#10)
    by Cashmere on Fri Jul 12, 2013 at 12:05:16 AM EST
    that would just be another prosecution "theory" that would not do much for their burden of proof.

    Well.... (none / 0) (#14)
    by CuriousInAz on Fri Jul 12, 2013 at 01:23:33 AM EST
    #1   There is no way a tiny button pin is going to withstand that tug-o-war..

    #2   Defense ME addressed the theory of GZ pulling on the shirt as he shot TM.  He said it would change the way the shirt and GSW 'line up'  


    yes. I agree Guy will try this (none / 0) (#29)
    by ding7777 on Fri Jul 12, 2013 at 10:37:36 AM EST
    Could they say that Trayvon was pulling away and GZ grabbed the button to hold him in place and shot him?

    I'm reaching here but it could be a theory to explain why the shirt wasn't against his skin if he is pulling away and not leaning over at the time of the shot.

    I thought it was odd that he asked her (none / 0) (#15)
    by Jeralyn on Fri Jul 12, 2013 at 01:26:54 AM EST
    isn't it true Trayvon always wore the button.

    But for that I assumed the button  would have something to do with the shirts being pinned together so they couldn't have fallen forward in the manner West and DiMaio described.

    But since they are no longer contesting Trayvon was on top, and are focused on what GZ's state of mind, I don't see how it can derail his story.

    Good observation though, he made such a point of it and then never took it anywhere.


    Is it the content of the button - what it meant - (none / 0) (#21)
    by melamineinNY on Fri Jul 12, 2013 at 07:34:12 AM EST
    and not its physical aspect that the State will use as an emotional talisman?

    That's what I would guess it is. Something that (none / 0) (#22)
    by Angel on Fri Jul 12, 2013 at 07:35:59 AM EST
    portrays Trayvon in a favorable light.

    theory of the case (none / 0) (#11)
    by reasonableperson on Fri Jul 12, 2013 at 12:18:06 AM EST
    Bernie didn't really offer a coherent theory of the case-  he never set out "this is what happened, and  here's the evidence that proves it"

    It seems like possibly an attempt to get the defense to point this fact out - "They won't even give you their theory of what happened that night!"

    In which case the prosecution through good-looking John Guy would respond "No, this is what happened..." and the defense then wouldn't have any chance to specifically rebut the prosecution theory.

    I think the defense is good enough to gameplan against this, but in a just world they would be able to say something like "The state has posed a lot of questions, but hasn't proved anything." and the judge would throw the case out.

    Letting a different attorney do the rebuttal is highly unusual to me specifically because I think the reason for it is to allow the prosecution to basically start anew in the jury's mind without giving the defense a chance to respond.  Basically  by letting another attorney do the rebuttal, the court is removing the natural constraints and intended limitations of rebuttal because the state can just reiterate its case without looking like that's what it's doing because it's a different Guy doing the talking.

    Missing time? (none / 0) (#12)
    by DennisD on Fri Jul 12, 2013 at 01:17:59 AM EST
    Isn't there a time period between the end of Zimmerman's dispatch call and the first 911 call which doesn't seem to square with Zimmerman's reenactment? Maybe John McDreamy Guy will argue that Zimmerman once again was lying and was hunting for Martin during that time?

    Well... (none / 0) (#18)
    by CuriousInAz on Fri Jul 12, 2013 at 01:35:37 AM EST
    he sure did not 'hunt' very far if thats the case...all that time and he did not get beyond the "T"?

    seems odd...


    Yeah, it is odd. But then we only have his word (none / 0) (#26)
    by ruffian on Fri Jul 12, 2013 at 09:12:03 AM EST
    that he did not go beyond the T.

    Yep, and ... (none / 0) (#27)
    by Yman on Fri Jul 12, 2013 at 10:01:36 AM EST
    ... on his walkthrough he claimed that Martin approached him at the "T".  This is inconsistent with his previous statement where he claimed Martin "jumped out of the bushes" (So I was walking back through to where my car was and he jumped out from the bushes. And he said, "WTF's your problem, homey?").

    All of which doesn't even address the fact that Zimmerman gave three separate statements immediately after the incident in which he consistently claimed Martin Trayvon punched him in the nose he "immediately" "fell backwards.":

    Zimmerman's 2/26 written statement: "the suspect punched me in the face. I fell backwards onto my back. The suspect got on top of me.

    2/26 Singleton interview: "And he punched me in the nose. At that point I fell down." "I fell to the ground when he punched me the first time." "As soon as he punched me, I fell backwards, um, into the grass" "He punched me in the face and I fell backwards"

    2/27 Serino interview: "... And then he punched me in the face." Serino: "Oh, so he said, OK, you have a problem now. OK, he punched and you fell?" Zimmerman: "Yes, sir."; "He punched me in the face and I fell backwards."

    When he was at the site conducting the walkthrough, it was obvious that this version of events could not be true, given the site of the struggle and location of Martin's body.  Zimmerman then stated that he "stumbled forward" approximately 40 feet to where the body was found.

    A good explanation with photographs is here.


    So what? (none / 0) (#28)
    by RickyJim on Fri Jul 12, 2013 at 10:33:14 AM EST
    You haven't proven anything more than GZ is an unreliable witness to events of that night.  The trouble for your and Susan Simpson's, whom you quote admiringly, argument is that your whole case is claiming guilt arises from that fact you have proven even though the properly weighted testimony from other witnesses strongly supports Zimmerman's self defense case.

    "Properly weighted" - heh (5.00 / 2) (#31)
    by Yman on Fri Jul 12, 2013 at 01:13:01 PM EST
    Sorry.  Your opinion of the "proper weighting" of the evidence isn't relevant - or something I care about.

    But, since you've conceded that Zimmerman is an "unreliable" (heh) witness to the events of that night, that would discount his claims establishing the most obvious reasons (arguably all reasons) for the use of deadly force.  Did the confrontation occur when Martin approached him from behind at the "T", or did it occur south of the "T" where there were actually bushes for Martin to jump from and where Zimmerman immediately fell backwards, as he originally claimed (only Zimmerman's testimony)?  Was he punched "two dozen" times (only Zimmerman's word) or once/twice?  Was his head being repeatedly "smashed" against the concrete by Martin (only Zimmerman's word) or did it get two, small cuts while wrestling with Martin?  Did Martin say "You're gonna die tonight", cover his mouth and reach for his gun (only Zimmerman's word) or not?

    If you discount Zimmerman's testimony as unreliable, you're not left with John Good (Martin on Zimmerman and "Up and down movement") and differing opinions on who was screaming.


    And the forensics (none / 0) (#32)
    by Darby on Fri Jul 12, 2013 at 02:34:06 PM EST
    And the injuries to Zimmerman.  If you or I were beat like Zimmerman was, the perp would be charged with battery or assault. I know I would have been terrified.

    Doesn't matter (5.00 / 1) (#33)
    by Yman on Fri Jul 12, 2013 at 03:15:14 PM EST
    Even assuming Martin would have been charged with assault/battery, that does not justify the use of deadly force.  What matters is whether a reasonable person would have believed that such force was necessary to prevent imminent death or great bodily harm - a question of fact for the jury to decide.

    As far as the forensics and injuries, it could go either way.  Some think the pictures showing blood corroborate Zimmerman's stories of a brutal beating with his head being repeatedly smashed against the concrete walkway.  Others see a possibly broken nose and two small cuts (@ 3/4 of an inch and 1/5 of an inch) unpersuasive that he was punched in the face "around two dozen times", etc.


    You Left Out a "Reasonable" (none / 0) (#34)
    by RickyJim on Fri Jul 12, 2013 at 04:29:30 PM EST
    If it is reasonable to the jury that "a reasonable person would have believed that such force was necessary to prevent imminent death or great bodily harm" then Zimmerman walks.  Where I part company with you, the prosecution and Susan Simpson is that enumerating falsehoods from Zimmerman makes the quoted statement unreasonable.  All of them have other explanations besides his guilt - desire to make himself look better, failure to admit his own stupidity, and shell shock after a traumatic event.

    No, I didn't (none / 0) (#35)
    by Yman on Fri Jul 12, 2013 at 08:26:24 PM EST
    The use of two "reasonables" is redundant.  the "reasonable man" standard is simply another way of phrasing the objective requirement for the use of self-defense, which is to say that not only must the defendant fear death or serious bodily harm, but that fear must be objectively reasonable (i.e. a "reasonable" man in those circumstances would also have  felt deadly force was necessary ... etc., etc., or the fear must be reasonable.  You've used the double "reasonable/reasonably" explanation before, but it's just redundant ... and potentially confusing, although not as much as that guilty/not guilty flow chart you had going.

    BTW - What his purported falsehoods demonstrate is a lack of credibility on key points that if true, would likely make his fear reasonable (i.e. repeatedly smashing head against concrete, Martin reaching for his gun, "You're gonna die tonight", etc.).  Without these, the jury could decide that the use of force was excessive and therefore, not justified.

    Sure, all of them have other possible motivations, but the prosecution doesn't have to disprove all the possible motivations for making them.  The jury is free to not only disbelieve the statements, but to draw an inference that they were made for the purpose of exaggerating the threat to justify his use of deadly force.

    All IMO, of course.


    How do you (none / 0) (#36)
    by Aunt Polgara on Sat Jul 13, 2013 at 02:03:32 PM EST
    explain the keychain and flashlight at the "T"?

    I have a thought (none / 0) (#20)
    by DizzyMissL on Fri Jul 12, 2013 at 06:39:03 AM EST
    but I am not posting it here because I don't want to give them any ideas.

    Curious... now that it is over, what was .. (none / 0) (#30)
    by Cashmere on Fri Jul 12, 2013 at 12:45:40 PM EST
    your thought?