Zimmerman Trial: Marijuana Evidence

Eric Zorn of the Chicago Tribune writes today about the judge's decision in the George Zimmerman trial allowing the defense to introduce Trayvon Martin's toxicology report into evidence. He agrees (for the most part) with my post from the other day in which I wrote that while "I think it is highly unlikely the defense will be able to show the results in the autopsy indicate impairment to a degree that might explain Martin’s physical attack on Zimmerman, " that the report was likely admissible for another reason. [More...]

[T]he state has introduced defendant's statements containing his version of why he reported Martin as suspicious. Zimmerman says it was Martin's actions, not his appearance . The state claims he is lying, that he profiled him because of his appearance, and that he was a wannabe cop who killed Martin not because he had to, but because he wanted to (video of state's opening here.)

The state can't have it both ways. Since it introduced Zimmerman's statements to the dispatcher and Detectives Serino and Singleton into evidence in which he says he was suspicious of Martin was because of his actions, including that he seemed to be on drugs, it can't both assert he is lying and keep evidence from the jury that supports his contentions.

Here is the Arias case I cited (as did the defense and the Judge when she granted the defense motion to admit the toxicology report the next day.) The toxicology findings are here. The amount of Delta-9 THC (the psychoactive component) in Martin's blood, taken hours (if not the next day) after the shooting, was 1.75 ng/ml. The second number refers to Delta-9 Carboxy, or THC-COOH (Carboxy), which is an inactive, non-psychoactive metabolite. Urine tests are indicative only of prior exposure to THC.

Mr. Zorn adds that had he written the first sentence of my post, he would have noted that who attacked who remains disputed. I don't think it is in dispute that Martin attacked Zimmerman -- I think the dispute is over whether Zimmerman was justified in using deadly force to respond to the attack.

As I've written before, Mr. Zorn has written some very insightful columns on this case since the beginning. He clearly has taken the time to review the discovery and follow the proceedings as they have occurred. Recently he wrote a list of 25 and then 5 more things he found significant in the case. While there are several I agree with, there are several I don't, for example the references to Zimmerman's 2005 civil restraining order. But since that hasn't come up at trial yet, I'll save that post for another day.

Back to the marijuana: The primary reason it is coming in is because the state claimed Zimmerman only reported Martin as suspicious because of his appearance, which indicated to Zimmerman that Martin was a criminal and a "punk" -- one of the "as*holes who always get away." The state argues this is sufficient for the jury to reject Zimmerman's self-defense claim, and that it is sufficient evidence of his ill-will, hatred and spite (depraved mind) and convict Zimmerman of second degree murder.

Given that the state has chosen to go down that road, it can't prevent Zimmerman from introducing evidence that contradicts the state's theory and supports his own. Namely, that the first reason he gave to the dispatcher for reporting Martin as suspicious in his call to the police non-emergency number was that Martin appeared to be on drugs or something.

Hey we've had some break-ins in my neighborhood, and there's a real suspicious guy, uh, [near] Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he's up to no good, or he's on drugs or something. It's raining and he's just walking around, looking about.

The marijuana in Martin's system, whatever the level, is supportive of Zimmerman's perception that Martin was on drugs, which in turn supports his argument that he reported Martin because of his actions, not his appearance. The jury, which is tasked with deciding whether the state has refuted Zimmerman's theory, is entitled to consider the toxicology findings in deciding whether to credit or discredit the state's theory. As the Arias court held (citing prior cases):

A homicide defendant is afforded wide latitude in the introduction of evidence supporting his self-defense theory. Where there is even the slightest evidence of an overt act by the victim which may be reasonably regarded as placing the accused apparently in imminent danger of losing his life or sustaining great bodily harm, all doubts as to the admissibility of evidence bearing on his theory of self-defense must be resolved in favor of the accused. The toxicology evidence comes in because it is relevant evidence, and not under any theory of admissibility of character evidence under subparagraph 90.404(1)(b)(2), Florida Statutes (2007).

The defense also pointed to other evidence of Martin's impairment: It asserts he can be seen swaying in the 7-11 video. And it notes there was a lighter in his pocket when his body was found. (Martin is not known to smoke cigarettes.) In the Warren case, the appeals court ruled a toxicology report showing no cocaine in the decedent's blood, just cocaine metabolites, was admissible in a self-defense case, citing among other reasons, that the decedent had a pipe in his pocket.

So yes, I think the court was right to admit the toxicology report, even though I don't think the levels indicate impairment to a degree that would explain why Martin decided to punch Zimmerman and then hit his head into the concrete.

Some other points of view on the case I'm reading: Law Professor Jack Chin and Andrew Branca at Legal Insurrection.

< Zimmerman: Defense Expert Backs Zimmerman Version | Zimmerman: Defense Animation Arguments >
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    But they decided not to present it (5.00 / 0) (#1)
    by Teresa on Tue Jul 09, 2013 at 03:23:20 PM EST
    Jeralyn, are you surprised at the shortness of the defense case?

    (also, the other thread is getting nasty imo. Sorry to be a tattleteller as my step-daughter called me when she was five, but it's pretty bad and I know you don't like it)

    I cleaned the (5.00 / 1) (#2)
    by Jeralyn on Tue Jul 09, 2013 at 05:02:21 PM EST
    other thread.

    They have another expert -- I believe a forensics phone expert -- who will be testifying. He is supposed to proffer today as well. I think whether they are the last witnesses will depend on whether the judge allows the experts testimony.

    Media is now saying O'Mara meant last day of testimony not the last witness


    Jeralyn, if the state rebuts (none / 0) (#3)
    by Teresa on Tue Jul 09, 2013 at 05:42:25 PM EST
    is the defense rebuttal to their rebuttal at the discretion of the judge or automatic?

    Also, when that's over, do they break for the day, in your experience, and begin closings first thing the next morning?

    Sorry, to ask you in this thread. I should have joined the forum, but it's probably too late to get the answers to so many questions I have.


    Defense is entitled to (5.00 / 1) (#4)
    by oculus on Tue Jul 09, 2013 at 06:19:37 PM EST


    Closing arguments begin as soon as the court makes the final decision as to jury instructions.


    Thank you, oculus! (none / 0) (#6)
    by Teresa on Tue Jul 09, 2013 at 06:28:13 PM EST
    I forgot all about those jury instructions, too. So probably Thursday for closing and jury starts Friday or late Thursday if closing is through in time.

    I wonder if they can deliberate on weekends? I think I read no air conditioning or it's cut way way down on weekends and evenings. I'd want to go full steam ahead if I were on the jury and allowed to deliberate all days, all hours.


    Not sure re sequestered jury (5.00 / 1) (#10)
    by oculus on Tue Jul 09, 2013 at 06:49:53 PM EST
    and deliberating on the weekend. I suspect the judge may let them if judge, counsel, defendant, courtroom clerk, and bailiff are all available.

    Thanks oculus... (none / 0) (#7)
    by Cashmere on Tue Jul 09, 2013 at 06:29:34 PM EST
    When you say the final decision as to jury instructions, what do you mean?  I know she will have to give the instructions for self-defense (at least I believe so), but are you also referring to the possibility of getting instructions for 2nd degree murder and possible lesser charges?

    Also, once she makes the decision, is the jury read these instructions before or after closing arguments?  



    Prosecution and defense have each exchanged (none / 0) (#11)
    by oculus on Tue Jul 09, 2013 at 06:58:47 PM EST
    and provided to the court proposed jury instructions and verdict forms. The court makes the final decision after input from both counsel. Not sure if instructions follow argument or precede argument. I think the former.  

    As to self defense instruction--definitely. As to lesser included offenses--who knows?  It is quite technical whether an offense is a "lesser included."  At least in CA, the lesser, uncharged offense, cannot have any elements not in the greater and charged offense--murder 2 in this case. This will be the subject argument out of the presence of the jury unless both the prosecution and defense only want the jury to consider the charged offense.


    I predict the prosecution will definitel argue (none / 0) (#14)
    by Cashmere on Tue Jul 09, 2013 at 07:03:19 PM EST
    for manslaughter.  They have already brought this up during their argument for.... (can't think of the term, but when O'Mara requested charges be dropped after the state rested.

    Is the defense likely to argue for a lesser charge as well?  Perhaps if they predict a guilty verdict, but think the jury might go for the lesser of two charges?


    Here is a link, the appendix of which (none / 0) (#16)
    by oculus on Tue Jul 09, 2013 at 07:11:36 PM EST
    lists the "lesser included" offenses. Much scrolling down required!  Looks like manslaughter is a lesser included of murder 2.

    FL jury instructions


    Your longest post evah? (none / 0) (#48)
    by sarcastic unnamed one on Wed Jul 10, 2013 at 01:59:25 AM EST
    Thanks for the info!

    As a prosecutor, did you expect a (none / 0) (#8)
    by Teresa on Tue Jul 09, 2013 at 06:29:46 PM EST
    longer defense presentation?

    (sorry again, Jeralyn. I'll try to stay on topic. It's just that the lawyers here are such a great resource.)


    I 've only read news reports and TalkLeft (5.00 / 1) (#12)
    by oculus on Tue Jul 09, 2013 at 07:00:45 PM EST
    can't really opine on defense decisions. I do figure defense counsel is pretty confident.

    They are good questions... I have (none / 0) (#5)
    by Cashmere on Tue Jul 09, 2013 at 06:27:10 PM EST
    the same and so appreciate the plethora of knowledge on this site and in the forums.  Thanks Jeralyn!!

    The best legal site and posters (5.00 / 1) (#9)
    by Teresa on Tue Jul 09, 2013 at 06:32:50 PM EST
    anywhere, isn't it? It's what brought me here before politics. My lay interest in law comes from helping my brother who was a criminal defense lawyer, primarily, when I was younger. He wanted me to go to law school so bad, but I was way too shy to ever consider doing trial law which is what interests me. So I became a boring bean counter.

    There are many, many lawyers who never (5.00 / 1) (#13)
    by oculus on Tue Jul 09, 2013 at 07:01:58 PM EST
    set foot in a courtroom.

    Senior Partners (5.00 / 1) (#29)
    by MKS on Tue Jul 09, 2013 at 09:04:22 PM EST
    in the litigation departments of the best firms often shockingly have little jury trial experience....

    The era of the old bulls who had 100 plus (civil) jury trials is not pretty much over, with most of those guys retired....  


    "is pretty much over" (5.00 / 1) (#30)
    by MKS on Tue Jul 09, 2013 at 09:05:01 PM EST
    The evidentiary hearings just ended.... (5.00 / 1) (#28)
    by ruffian on Tue Jul 09, 2013 at 09:02:56 PM EST
    10 pm eastern.  Very cranky attorneys told to be back at 8am to deal with the issues of witnesses breaking sequestration.

    I understand the judge not wanting to waste the juries time, but maybe a little extreme here...

    What about the witnesses breaking (none / 0) (#31)
    by Cashmere on Tue Jul 09, 2013 at 09:06:31 PM EST
    sequestration.  Was this all about John Good or was it in reference to other witnesses as well?  Both defense and prosecution have issues with this or just defense?

    I'm guessing on one, but one is (none / 0) (#35)
    by Teresa on Tue Jul 09, 2013 at 09:39:03 PM EST
    Mr. Donnelly (the Vietnam vet) who was there a day and half. The 911 call that he testified to that he first let himself listen to on Saturday wasn't played during that time. I don't know if he just cheated or if he didn't expect to be called since he hadn't listened previously. But he shouldn't have been there so the judge has to rule if his testimony is still ok.

    The one I'm guessing on, is that John Good viewed where he stood at his door in that animation and told them that's not where he was standing and they moved him to where he said he was. He wasn't allowed to be talked to.

    I don't think this trial was ready to be started when it did and she should have allowed the continuance. If justice is really what the goal is anyway.


    10:00 p.m? Ouch (none / 0) (#32)
    by MKS on Tue Jul 09, 2013 at 09:07:58 PM EST
    And I don't think this judge has any dark days.....Perhaps what you get in a criminal case with a sequestered jury.

    I surely hope so. Very (none / 0) (#44)
    by oculus on Tue Jul 09, 2013 at 10:16:48 PM EST
    good the judge wants to get the case to the jury.

    at one point the lights went out (none / 0) (#55)
    by Jeralyn on Wed Jul 10, 2013 at 06:57:09 AM EST
    in the courtroom and they were sitting in the dark until they got them turned back on.

    Dilemma and fireworks! (5.00 / 1) (#33)
    by Teresa on Tue Jul 09, 2013 at 09:23:20 PM EST
    On the texts, I agree with the expert that if you follow the long conversations, it's obvious who wrote them. BUT there's no proof because defense can't 1) ask Trayvon or 2) depose the recipients at this late date.

    The issue is the prosecution had the info on the double secret password since January, I believe. The defense found it on June 4. So because the judge rushed the case, the depositions can't be done.

    So this obviously hurts GZ defense if you put the fight texts in context which seem to mirror the deadly fight. But, it won't come in due to authentication which could have been prevented months ago.

    I expect this case to get appealed and appealed. Nelson was majorly PO'd and so was West (and O'Mara).

    Defense lawyers on CNN said no judge has been born who wouldn't allow it in for a prosecutor and it's happened to them (authenticating by the flow of conversation, etc), but she won't allow it for a defendant.

    Authentication is easy as pie (5.00 / 1) (#40)
    by cboldt on Tue Jul 09, 2013 at 09:54:33 PM EST
    Florida v. Lumarque, 44 So.3d 171 (Fla. 3DCA 2010)

    The images and text messages were found on the defendant's cellular telephone, seized pursuant to a search of the defendant's home through a warrant shortly after the alleged incident.  This fact, testified by the State's forensics expert, is sufficient to authenticate these exhibits. U.S. v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir.1985) holding that authentication of evidence merely requires a finding that the evidence is what it purports to be).


    Well that's not one they cited that I (none / 0) (#46)
    by Teresa on Tue Jul 09, 2013 at 10:30:49 PM EST
    remember. The one Nelson read, it's not considered authenticated.

    I wondered about West still talking (mad) as Nelson exited. Hornsby said that's still on the record and working the lawyers to when they say they're exhausted and can't continue like that is reversible. Lots of reversible stuff isn't there?

    Ferrer v. State, becomes a violation of due process for a judge to overwork a defendant's attorney: http://scholar.google.com/scholar_case?

    I think the bigger point is withholding evidence until they can't possible find all TM's friends and get depositions after a trial starts. What was the hurry? The move back to civil by Nelson?


    The cases Nelson cited for authentication (5.00 / 3) (#49)
    by cboldt on Wed Jul 10, 2013 at 05:01:59 AM EST
    Those cases Nelson cited were about e-mails (not on the sender's computer) and messages held at social networking cites.  In other words, messages that were not resident in a device in the person's possession or control.

    Her reference was Florida Evidence (West 2011), a book by Professor Charles Ehrhardt at Florida State University.  I don't have the book,

    From Griffin v. State, 419 Md 343, 19 A.3d 415 (Md. Ct. App. 2011)

    Whether the MySpace printout represents that which it purports to be, not only a MySpace profile created by Ms. Barber, *420 but also upon which she had posted, "FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!," is the issue before us. ...

    the picture of Ms. Barber, coupled with her birth date and location, were not sufficient "distinctive characteristics" on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the "snitches get stitches" comment.

    State v. Eleck 130 Conn. App. 630, 23 A.3d 818 (2011)

    Facebook message purportedly sent from State's witness' account to defendant; reference in message to acrimonious history did not  sufficiently establish that State's witness authored the messages such that it was an abuse of discretion to exclude the evidence

    Commonwealth v. Purdy, 459 Ma. 442, 945 N.E.2d 372 (2011): finding sufficient confirming circumstances to authenticate series of e-mails.

    Those cases don't fit the source of evidence here, victim's cell phone, at all.  They are on completely different source of evidence.

    West is thinking that he needs to find a sender of message to authenticate it - give him a few days to contact the friends and depose them.  But he doesn't need to do that, given the wealth of contents he has in the phone, which was under the control of Martin.

    There are all kinds of on-point cites, and Nelson is either technologically illiterate to the point she can't tell the difference between a Myspace or Facebook post and the contents of a cell phone under a person's control; or she is deliberately choosing inapplicable case law.


    Thank you so much. (5.00 / 1) (#50)
    by Teresa on Wed Jul 10, 2013 at 06:45:58 AM EST
    Your post, taken with Jeralyn's new one, makes me wonder how qualified Nelson was to try this case.

    Not just on the law (none / 0) (#53)
    by cboldt on Wed Jul 10, 2013 at 06:55:50 AM EST
    Also on electronic device security (which resembles 4 digit PIN code, at least) and how reliable it is.  She told the public that a seven year old child could pick up the phone and get past the password.

    West told her (maybe reminded, but I'm not sure she knew) that the FDLE had the phone for a year and couldn't get past the login screen.

    I'd also add, for the proposition that the contents of the cell phone are personal to Trayvon Martin, that Tracy was unable to provide phone unlocking, "swipe code" or password information to law enforcement.

    It appears to me that Nelson is outcome driven on the admissibility of the phone contents.  If she can't exclude it on authentication, she'll find another reason.  And it also seems to me that she is indifferent about committing reversible error against the defense, unless the case law uses that same (reversible error) phrase in combination with exactly the same decision she is confronted with.  E.g., the toxicology report.


    Nelson's bar is too high (none / 0) (#51)
    by Synthesist on Wed Jul 10, 2013 at 06:50:56 AM EST
    I can understand that Judge Nelson has a good reason to protect the character of TM since he is not on trial and can not defend himself, but to raise the bar of his phone data evidence to such a high level that requires proof that only TM is responsible for everything on his phone is really asking too much. Without any evidence or testimony to the contrary, it is only reasonable to believe that TM is responsible for the data generated by the use of his phone.

    I shouldn't have said mirrored the (none / 0) (#37)
    by Teresa on Tue Jul 09, 2013 at 09:45:40 PM EST
    deadly fight since there was no one who died. It mirrored the fight prior to a gunshot.

    Quite a Finale (5.00 / 1) (#34)
    by RickyJim on Tue Jul 09, 2013 at 09:23:24 PM EST
    The hearing tonight ended at 10PM EDT with a walkout by the judge.  She seemed to express skepticism that texts on Trayvon Martin's cellphone are authentic and suggested that the defense call the person on the other end to authenticate them.  Don West go angry and said Prosecution stalling has prevented that.  

    If the standard of authentication is preponderance of evidence, I think the defense has shown that already.  The phone was double password protected and there is no indication that the messages were written by somebody else than Trayvon Martin.  The judge seemed to want proof beyond a reasonable doubt that they were.

    This stuff was so hidden thru an app (none / 0) (#36)
    by Teresa on Tue Jul 09, 2013 at 09:42:58 PM EST
    that even FDLE couldn't find it in a year.

    The rush to court makes one lose confidence in the justice system, doesn't it? It does me anyway.

    Now I know when we made my step-daughter give us her password to her phone that there were actually apps to hide texts even an agency like FDLE couldn't find. I have no doubt she knows this stuff! Too late now, though.


    My radio feed stopped (none / 0) (#15)
    by ruffian on Tue Jul 09, 2013 at 07:09:49 PM EST
    and I missed the end of the hearing about the animation evidence. Did Judge Nelson rule on that?

    Animation ruling coming on Wednesday (none / 0) (#17)
    by cboldt on Tue Jul 09, 2013 at 07:14:15 PM EST
    Mantei's 45 minute estimate ran more like 2 hours and 45 minutes!  The judge has the animation, understands the arguments, and will rule tomorrow.  I doubt she'll admit as evidence, but she's apt to allow O'Mara to use it in close.

    Was there any objection to defendant's (none / 0) (#18)
    by oculus on Tue Jul 09, 2013 at 07:16:14 PM EST
    statement that Martin said. "You're going to die tonight"?

    I was not watching all of the argument (none / 0) (#20)
    by cboldt on Tue Jul 09, 2013 at 07:25:19 PM EST
    I don't know, for sure.  I think I saw the entire animation, and that utterance didn't appear, to my recollection.

    Most of the objections were to items not clearly in evidence somehow.  For example, the animation shows Martin using his left hand to land the first punch.  Nelson objected to this, as no witness testified the left hand was used.  O'Mara disagreed, and had pretty good argument.  I don't think there would be a similar objection to what Zimmerman said, that's in evidence.  So, if it's missing from the animation (and I think it is), it's missing for another reason.

    Nelson seems very reluctant to let the jury take it back for deliberation, where they can play it over and over.  Hence the reluctance to enter into evidence.


    Thanks! I didn't hear the whole hearing (none / 0) (#21)
    by ruffian on Tue Jul 09, 2013 at 08:13:11 PM EST
    but found it interesting from both legal and tech geek perspectives. Seemed like that was the way she was leaning too -use it for argument and demonstration, but not as evidence. That seems fair based on the way the simulation was created.  

    futile (none / 0) (#19)
    by morphic on Tue Jul 09, 2013 at 07:18:38 PM EST
    claim that Zimmerman was a wannabe cop, since he  turned down the opportunity to be a citizen on patrol, which meant wearing a badge, and driving around in a vehicle with a light. You'd think the prosecutors would have known of this before the trial, yet blindly stuck to the script.

    Erm (none / 0) (#22)
    by scarshapedstar on Tue Jul 09, 2013 at 08:29:03 PM EST
    Not sure how to square TL's pro-legalization stance with the apparent implication that marijuana gave Trayvon Martin superhuman strength and sent him into a murderous rage. It's like some crazy combination of The Hulk and Reefer Madness.

    If he was stoned, seems like a point in favor of the prosecution.

    You obviously did not read Jeralyn's post... (none / 0) (#23)
    by Cashmere on Tue Jul 09, 2013 at 08:35:33 PM EST
    It was not about whether Martin's marijuana use would have impacted him in such a way so as to act in a violent manner.  Rather, it was in regards to the defense perhaps wanting it admitted to explain why Zimmerman initially found Trayvon Martin suspicious, as Zimmerman stated on the NEN call that Martin was acting suspicious, like he's on drugs or something.

    You have to admit the switch from (none / 0) (#42)
    by oculus on Tue Jul 09, 2013 at 10:13:02 PM EST
    NORMAL to this is ironic.  

    Uh (none / 0) (#56)
    by scarshapedstar on Wed Jul 10, 2013 at 10:16:58 AM EST
    What, was he walking around looking at his hands?

    To clarify (none / 0) (#57)
    by scarshapedstar on Wed Jul 10, 2013 at 10:19:56 AM EST
    I mean, I've seen a guy walk past my apartment shirtless at 5 in the morning staggering and roaring like some kind of animal.

    That wasn't pot. I'm not exactly sure how a person "on drugs" when the drug is pot looks terribly suspicious, except for maybe looking around a lot, which I also do when I'm walking on the side of the road on a rainy night.


    You think (none / 0) (#58)
    by jbindc on Wed Jul 10, 2013 at 10:38:54 AM EST
    Zimmerman knew Martin had pot in his system when he said (paraphrasing here) "He's walking around acting like he's on drugs?"

    I think Zorn's (none / 0) (#24)
    by mensch on Tue Jul 09, 2013 at 08:39:04 PM EST
    point regarding the first sentence is that the dispute is about who started the fight.  If Zimmerman started the fight, then it would be odd to say that Trayvon "attacked" Zimmerman, since, in that scenario, he would be defending himself.  Although Zimmerman claims not to have thrown the first punch, I don't think it is fair to say that his claim is undisputed.  I think that is what Zorn was getting at.

    When I made the point that Zimmerman (5.00 / 1) (#25)
    by Anne on Tue Jul 09, 2013 at 08:47:37 PM EST
    could have thrown the first punch and missed, my comment disappeared, but I don't see any reason why this possibility is so far-fetched; it would completely change the dynamic of the situation.

    Why speculate Anne.. why not consider the... (5.00 / 2) (#27)
    by Cashmere on Tue Jul 09, 2013 at 08:55:00 PM EST
    evidence that exists, that has been brought forth in this trial?  You are throwing "possible scenarios" out there as if desperate to find a way to prove Zimmerman is guilty.

    At some point, one has to look at the actual evidence, stop speculating, and admit that there may not be evidence to convict Zimmerman beyond a reasonable doubt.

    I have no way of knowing how the jury will decide, but from what I have seen watching this trial, it will be a HUGE stretch to find Zimmerman guilty of 2nd degree murder.  Manslaughter?  I just don't know anything about this charge, but I predict Zimmerman will be considered for manslaughter.  There seems to be much pressure to find him guilty of something.


    Sorry, Cashmere, but I'm not desperate (5.00 / 4) (#38)
    by Anne on Tue Jul 09, 2013 at 09:48:06 PM EST
    to prove anything one way or the other.

    But asking "why speculate" seems like a pretty funny question, considering all the speculation that has been running through this case.  On any given day, in any given thread, I can find multiple examples of people speculating about everything from what Trayvon was thinking and what his intentions were to how it had to have been Trayvon who started the fight.

    I think what you object to is speculation that makes you consider other possibilities.

    Where is the actual evidence that Martin threw the first punch?  Is Zimmerman saying so evidence?  How can it be with no corroboration?  Zimmerman had no bruising on his hands?  Just because someone throws a punch doesn't mean it connects, does it?  People have made a lot out of George's physique v. Trayvon's - what if the younger, more agile Martin dodged a punch and then responded to the provocation?

    I have no idea what transpired between these two people that night - there are certainly a lot of dots that can be connected, but I think those dots don't only connect in one way, and there's enough doubt that, when all is said and done, the jury may decide that they don't have enough to allow them to convict.

    I think this whole case is just so sad.  I can look at George Zimmerman and know that he will never be the same - this case will dog him forever.  And whether he goes free, or not, he will always know that he killed someone.  Trayvon Martin is dead, whether because he made some bad decisions, or because he suffered the consequences of someone else's bad decision.  His parents have lost a son - as a parent, myself, I can't even begin to know what that pain must be like.

    You can cast me however you want; I've been here a long time, commenting on a lot of issues, and while others may disagree, I think I'm fair, open-minded and willing to consider a lot of other views.  I have my pet peeves, like anyone else, and there are some issues I don't compromise on.

    But this case?  I go back and forth, and sometimes when all the talk is on one side, I find myself considering what's on the other side.

    Last time I checked, that's not illegal.


    I have to agree with cashmere (1.00 / 1) (#41)
    by Darby on Tue Jul 09, 2013 at 10:12:18 PM EST
    Why are you continuing to come up with scenarios even after all the evidence is.  You have been speculating like this formonths. at least now don't you think it time your ideas need  evidence to back them up? When will it stop?

    Where is the evidence that Zimmerman threw (5.00 / 0) (#26)
    by Cashmere on Tue Jul 09, 2013 at 08:48:47 PM EST
    the first punch?  There is none as far as I am aware, unless you believe that Rachel, on a phone conversation "heard" Zimmerman throwing the first punch...  She only claims that she heard a bump and then a little get off, but her testimony is that it was Martin stating a little "get off", even though in an earlier recorded interview, she is heard saying she coundn't know if it was Trayvon (something to that effect).

    On the other hand, Zimmerman is the only one that has any injuries indicative of being punched.


    Trayvon's text messages about fighting (none / 0) (#39)
    by Luke Lea on Tue Jul 09, 2013 at 09:51:44 PM EST
    I'd like to hear Jeralyn's take on Trayvon's text messages about fighting and whether they should be admissible.  Would it be reversible error if they are not?

    I can't envision the judge ruling (5.00 / 1) (#45)
    by oculus on Tue Jul 09, 2013 at 10:20:39 PM EST
    These text messages admissible unless they were about defendant.

    The judge didn't agrue relevancy since (none / 0) (#47)
    by Teresa on Tue Jul 09, 2013 at 10:34:09 PM EST
    the prosecution brought up the MMA fighting to begin with. She argued authentication.

    she wants to deal with authentication (5.00 / 1) (#52)
    by Jeralyn on Wed Jul 10, 2013 at 06:54:17 AM EST
    first. If she finds them authenticated, then she'll address relevance and and legal arguments on admissibility

    that's not the law (none / 0) (#54)
    by Jeralyn on Wed Jul 10, 2013 at 06:55:56 AM EST
    they can come in under the state of mind exception to the hearsay rule. Not as character or reputation evidence, but under the hearsay exception rule. It's not necessary for them to have had a prior relationship to come in this way.

    Are the texts to show Martin was in a pugilistic (none / 0) (#59)
    by oculus on Wed Jul 10, 2013 at 11:59:00 AM EST
    state of mind b/4 defendant even spotted him?  

    Up to the jury (none / 0) (#60)
    by cboldt on Wed Jul 10, 2013 at 01:08:41 PM EST
    The jury draws whatever inference it wants, whether the text messages indicate Martin knew how to fight, or was in a fighting mood at 7 pm on 2/26/12, or whatever.  It's up to them.

    The present state of mind exception to hearsay is designed to admit reliable evidence that is otherwise excluded as hearsay.


    I know the purpose. The texts, in my (5.00 / 1) (#61)
    by oculus on Wed Jul 10, 2013 at 01:25:45 PM EST
    opinion, do not fit into the state of mind exception.

    the prosecutors (none / 0) (#43)
    by morphic on Tue Jul 09, 2013 at 10:13:51 PM EST
    don't want Trayvon's shirtless picture in, since it shows a rather muscular physique. They apparently claim he was "pumped up" but than became "unpumped" after the picture was taken.