After watching the Zimmerman prosecution stagger through the gardens of testimony and step upon one rake after the other, I found myself returning to my original theory from last year: Zimmerman was absurdly over-charged to defuse the riot-level tensions in Sanford, Florida, and the prosecution never really thought it could win the case.
As the New York Times observed in a headline on Monday, “In Zimmerman Trial, Prosecution Witnesses Bolster Self-Defense Claims.” I don’t recall seeing another high-profile trial where the prosecution’s witnesses so consistently made the defense case. Only one of these witnesses significantly challenged any element of George Zimmerman’s story, and that was only to state that Zimmerman was, at least briefly, on top during his struggle with Trayvon Martin. None of the other witnesses gave Zimmerman the upper hand at any point during the confrontation.
That’s not much of a foundation to build a second-degree murder case upon, as legal experts observed to the Times:
The first week of the trial featured testimony from prosecution witnesses that in many instances bolstered Mr. Zimmerman’s argument of self-defense rather than the state’s case, the analysts said.
“When you are talking about state witnesses as if they are defense witnesses, that is a problem for the State of Florida,” said Diana Tennis, a prominent Orlando defense lawyer who is following the case. “And any time you end each day with either a zero-sum game or the defense coming out ahead, that’s a problem when you’re the prosecution.”
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.
However, the Times couldn’t resist tugging that worn-out, dog-eared race card from its sleeve when recapping the case:
On Feb. 26, 2012, Mr. Zimmerman, 29, who is half-Peruvian, shot and killed Trayvon Martin, an unarmed black 17-year-old, as he walked on a rainy night through the housing complex where he was a guest. Mr. Zimmerman, the coordinator of the volunteer neighborhood watch program, said he shot Mr. Martin after the teenager knocked him to the ground, punched him and slammed his head into the pavement repeatedly.
The prosecution argued that Mr. Zimmerman “profiled” Mr. Martin, pursued him despite being told not to do so by a police dispatcher, and acted as the aggressor in the fight, which left Mr. Martin dead.
Ah, so Zimmerman is “half-Peruvian” now. I guess “white Hispanic” was in the shop for a tune-up. Zimmerman is also one-quarter black, by way of his grandmother, but presumably this variable was not deemed important enough to insert into the racial equation.
As for the prosecution’s argument that Zimmerman was the “aggressor in the fight,” there hasn’t been much testimony to back that up yet. Train-wreck “star witness” Rachel Jeantel claims to have heard Martin say “get off” through his cell phone, but that’s about all they’ve got – from a witness who is under investigation for perjury, and claimed she wrote a letter to Martin’s mother that she was later forced to admit she could not read, because she doesn’t know how to read cursive. Somewhat more damaging for the prosecution, Jeantel also described Martin referring to Zimmerman as a “crazy-ass cracker,” and even using the same word that sealed the fate of celebrity chef Paula Deen. That gives us more evidence for Martin “racially profiling” Zimmerman that the reverse.
That leaves the prosecution trying to make mountains out of some molehills in Zimmerman’s testimony, none of which sound like carefully-crafted lies designed to hide the kind of malice or bloodlust necessary for a second-degree murder conviction. In fact, even the stranger elements of Zimmerman’s behavior during the run-up to the shooting are generally consistent with nervous efforts to avoid a confrontation, which is what he told the police on that fateful night. You don’t have to think he handled everything perfectly to admit there’s little for a Murder Two prosecution to work with. In the early days of hysteria following the shooting, it was often pointed out that Zimmerman had a history of frequent calls to the police. This was supposed to make him look like a paranoid nut, but there had been trouble in the neighborhood… and in any event, Zimmerman did not have a history of confronting the individuals that aroused his suspicions.
Based on testimony introduced thus far, there’s a bit of a gray area between Zimmerman eyeballing Martin, Martin taking umbrage as he noticed he was under observation, and the beginning of the physical confrontation that ended with the shooting. But there’s not much to indicate that Zimmerman provoked a fight with aggressive behavior; a neighborhood watch volunteer briefly following someone through his own neighborhood is not an “attack.” Another prosecution witness delivered a blow to the second-degree murder case today when a police investigator testified “Zimmerman didn’t seem to have any ill-will, anger, or hatred for” Martin during interviews after the shooting, as reported by the Orlando Sentinel.
With all due allowance for the confusion that may result when layman observers weigh in on legal matters, one of the prosecution’s witnesses testified seeing Trayvon Martin beating the hell out of Zimmerman with a mixed-martial-arts “ground and pound.” One minor point of forensic confusion seemed to clear up today, when the absence of cuts and bruises on Martin’s knuckles was explained by the observation that he was delivering “hammer blows” with the bottoms of his fists. It’s hard to make the case that a person taking that kind of beating is supposed to lie quietly and hope the attacker doesn’t maim or kill him… especially when Zimmerman has testified that Martin explicitly told him, “You are going to die tonight.”
On Monday, an FBI expert testified there wasn’t enough clean audio of the confrontation to determine whether Zimmerman or Martin was the one screaming for help. Martin’s parents are expected to testify that he’s the one doing the screaming, although Martin’s father at one point told police it was not his son’s voice, and Zimmerman’s father insists it was his son crying for help. There isn’t much left to clear up except nailing down how long Zimmerman was outside his vehicle – he has said he was looking at street signs and house numbers to pin down Martin’s exact location during his call to the police. There’s some confusion about whether the police dispatcher he was speaking with ordered him to return to his vehicle, or even had the authority to issue such an order. Murderous malice will be difficult to conjure from such details; at worst, the prosecution will be able to make Zimmerman look careless or over-zealous. And he’s not on trial for carelessness, zealotry, or paranoia, is he?
It’s remarkable how far these details have taken us from the original storyline pumped through sizzling-hot media wires to every corner of America. The police were not incompetent or racist in their hesitation to immediately arrest Zimmerman – there is a law in Florida that says they needed concrete reasons to doubt his claims of self-defense, and although the media was extremely lax (or in some cases, openly duplicitous) in reporting it, the evidence always gave at least superficial support to Zimmerman’s claim. Early media coverage was driven by groups that wanted to manufacture outrage. Press releases were ripped and read as news. And no matter how poorly the case goes for the prosecution, the media is reluctant to admit it got played, or deliberately sought to play its audience, when the story went national last year. There really haven’t been many surprises in the courtroom so far. The lack of surprises that would help the prosecution make their inflated charges stick is the big news.