Prosecution in George Zimmerman's Trial Continues to Help His Case


Video via The Orlando Sentinel

Yesterday and today, the jurors in George Zimmerman's murder trial heard testimony from Chris Serino, the Sanford, Florida, police investigator who at one point recommended a manslaughter charge against him. Serino testified that he felt pressure from within the police department to make an arrest but that upon reflection he concluded there was not enough reason to doubt Zimmerman's account of the fight that ended in Trayvon Martin's death. While Zimmerman struck Serino as an overzealous neighborhood watch volunteer who unnecessarily set the stage for the confrontation with Martin, he also seemed to be telling the truth.

Although the prosecution has sought to highlight inconsistencies in Zimmerman's various statements, Serino conceded during cross-examination that "nothing major" changed from one interview to another. He said Zimmerman's story was supported by physical evidence, include a medical examiner's report that the front of Martin's hoodie was not touching his body when he was shot, suggesting that he was "hanging over" Zimmerman. Serino also noted that Zimmerman was "very elated" when he was told that the fight might have been caught on video, suggesting he believed such evidence would vindicate him. "Either he was telling the truth or he was a complete pathological liar," Serino said. Given all the evidence, asked defense attorney Mark O'Mara, did Serino believe Zimmerman was telling the truth? "Yes," Serino replied.

It is possible, of course, that Zimmerman was telling the truth as he perceived it but nevertheless did not have a reasonable fear of death or serious injury at the moment he shot Martin, as required for a self-defense claim under Florida law. Possibly relevant to that question is today's testimony from medical examiner Valerie Rao, who described Zimmerman's injuries (a bloodied, possibly broken nose, plus bumps and lacerations on the back of his head) as "minor" and "insignificant." On cross-examination, however, Rao conceded that the injuries were consistent with having his head banged against a concrete sidewalk, perhaps a few times, as Zimmerman has described. Furthermore, as O'Mara pointed out, the fact that the injuries Zimmerman suffered were not life-threatening does not mean there was no reason to fear more serious injury if the fight continued.

Another piece of evidence that may bear on the question of the threat perceived by Zimmerman is the recording of a 911 call in the background of which someone can be heard crying out. The prosecution has suggested the cries came from Martin, while the defense maintains they came from Zimmerman. Yesterday Hirotaka Nakasone, an FBI voice analysis expert, testified that the recording was too short and indistinct for any conclusions to be drawn about who was screaming. Nakasone is the same expert whom the defense used at a pretrial hearing to discredit prosecution witnesses who were prepared to testify that it was Martin in the background of the call. Judge Debra Nelson excluded the testimony of those witnesses, deeming it "not reliable."

It is worth emphasizing that all the trial witnesses so far—including the neighbor whose description of the fight supports Zimmerman's account—have been called by the prosecution, which seems to be actively undermining its own case. Hence the headline over a story in yesterday's New York Times: "In Zimmerman Trial, Prosecution Witnesses Bolster Self-Defense Claims." As Orlando defense attorney Diana Tennis dryly observed in an interview with the Times, "When you are talking about state witnesses as if they are defense witnesses, that is a problem for the State of Florida." The Times suggests the state is falling far short of proving that Zimmerman is guilty of second-degree murder:

In light of the first week, analysts said that prosecutors should have charged Mr. Zimmerman with manslaughter instead of second-degree murder, which involves a showing of hatred, spite or evil intent. The jury can still consider manslaughter, but doing so could complicate closing arguments and deliberations.

"The state is overreaching, and I think that may well come back to bite them in terms of credibility," said Michael Band, a longtime Miami prosecutor and now a defense lawyer.

Another sign of the prosecution's failure is this fair-minded piece by New York Times columnist Charles Blow:

On one level, the case is simple: if Zimmerman had not pursued—some say stalked—Trayvon Martin that dark, rainy night, Martin would still be alive.

That's the logical argument. The legal one is more complex. The case, it seems to me, spins on some crucial questions, some of which we may never completely know the answers to….

Who felt threatened, the teenager with the candy and the soda or the man pursuing him with a gun and a live round in the chamber? The answer on the surface would seem obvious, but it's possible that both felt some level of threat. It's also possible that threat responses washed back and forth between them like water in a tub, neither of them knowing about the other what we know now—that Zimmerman was armed and Martin was not….

If Martin struck the first blow, as the defense contends, could that be considered an act of self-defense?

Regardless of who struck the first blow, some testimony suggests that Martin was getting the best of Zimmerman. In that scenario, could the right to self-defense switch personage?…

Even assuming that Martin was winning a physical fight with Zimmerman, did Zimmerman "reasonably" believe that he was in "imminent danger of death or great bodily harm"?…

Morally, Zimmerman is by no means without guilt. Legally, it remains to be seen whether he will be found guilty of second-degree murder.

A recorded exchange between Zimmerman and police that the prosecutors presented yesterday illuminates the question of his moral culpability:

"Did it ever occur to you to ask this person what he was doing out there?" Officer Serino asked in the recording.

"No, sir," Mr. Zimmerman replied.

"Do you think he was scared—do you think he thought you were trying to hurt him?" another officer asked. "Can you see how this might frighten him?" Mr. Zimmerman fell silent. "I didn't have the opportunity," he eventually said.

I think Blow gets it about right: If Zimmerman had been less nosy and nervous, less inclined to view a black teenager walking through the rain as suspicious, Martin would still be alive. But that does not mean Zimmerman is guilty of manslaughter, let alone second-degree murder. All the defense needs is reasonable doubt, and there is plenty of that at this point, thanks to the prosecution.