CAVEAT: I've only seen most of yesterday's coverage of the trial so far and snippets of Ms. Jenteal's testimony, I've practiced in other jurisdictions, it's been a long time since I did criminal work, and I detest guns. I think that people who own and operate guns and cars owe the utmost in care to the public. The standard involved should be as near to strict liability as possible. Since we don't live in that world, although daily, monthly and yearly fatality statistics indicate we should, I will limit my analysis to the law as I believe it exists today.
The Charge Conference
The attorney for the state was comfortable with the law and comfortable handling charging conferences. The lawyer for the defense did not seem comfortable with either. The big issue was whether to include instructions to the jury about third-degree felony murder based on child abuse as a lesser-included offense. The defense's agrument against it appeared to be mainly the "C'mon, Judge" and surprise defenses. When I was a newbie lawyer in Illinois, the state could amend a charging instrument or add a new offense up to the time the jury got the case. (I don't know if that's still the law in Illinois). What that meant, though, as it should've meant in Florida, is that the defense had to be keenly aware of any possible lesser-included offense, being ready to argue against them at the drop of a hat. Moreover, West--I believe Zimmerman's attorney at the hearing was named West--even alluded to speculation about why the State of Florida would include information in the charging document that showed Trayvon to be a minor. He knew.
In any event, the Judge did what judges do in most criminal cases. If it is even a somewhat close question, and the judge has discretion, err in favor of the defendant, which is what she did by disallowing the child abuse instruction. Now, the long-term effect of that decision means that child abuse apparently doesn't include killing a child with a gun in Florida as long as you are defending yourself from that child. The Judge in this case did not set any age limitations so presumably strong toddlers should be on notice. (I know that in Florida, just as in any jurisdiction you have to refer back to the charging document for the elements of the crime and refer to the evidence presented to ensure that a colorable argument has been made.)
The prosecutor, as noted above, seemed comfortable with the law and the process. That is, except while making his third-degree felony murder argument. You never let a judge or jury see you facepalm or squirm. The prosecutor squirmed like each quadrant of his body had begun itching at once. The TV station I was watching, either MSNBC or CNN, provided excellent camerawork, showing the writhing.
The defense attorney, on the other hand, didn't have a body posture problem even though he wasn't up to speed on his responsibilities or very comfortable at the hearing. I thought that the most egregious of the proposed jury instructions was the defense's attempt to get in an instruction about how it is not illegal for a person to follow someone else in the State of Florida. That had to've been a facepalm moment for the Judge, and it seems like an NRA-inspired bit of silliness. (Did ALEC provide proposed jury instructions to the defense?)
Opening Argument by the Prosecution
A. Continuing Legal Education
Before getting into the meat of the argument, I wanted to post my helpful hints to the prosecutor. Firstly, never turn your back on a jury, and especially not for an extended period of time. If you have visual aids and you're not prepared enough with your argument that you have to read them, then place a second monitor in front of the jury box so you are at least facing the people you want to convince. Secondly, modulate your tone. Everything can't be the same tone, with the only changes in volume coming when you turn your back on the jury. Thirdly, memorize your closing argument and practice with emotion and inflection. Hamlet can memorize 1,422 lines, and Richard III can memorize 1,124. Moreover, a full one-fifth to one-tenth of your closing, depending on the complexity of your trial, is standard boilerplate that you'll use in one form or another in just about every trial (i.e. "Thank you for your service ....", "Let's talk about reasonable doubt and what it means ...." &tc.). Fourthly, if you are going to present visual aids, then introduce the material is such a way that you don't closely resemble a church travelogue (i.e. "This is a picture of Sister O'Hara next to the new mission we built in Santa Fernando de Domenigo ...."). Frequently, the prosecutor showed the jury pictures with the narration of, "And here are some more pictures of the crime scene."
B. The Good Stuff.
I was a little hard on the prosecutor above, but he did some very good things. As much as people (especially juries) hate repetition, it is an absolute must. The prosecutor did an excellent job with that. Most importantly, although he kind of jumped around a bit, he did touch on enough evidence and enough facts to win his case. It may take a jury some sifting, but frequently juries like to do that, so it could work. He also has another bite at the apple after the defense finishes their closing arguments. In the next couple of paragraphs I'll explain what I mean regarding the prosecutor doing enough to win his case.
The prosecutor kept mentioning "God-given common sense" during his closing. That was good. The jury will not only be weighing the evidence but also applying their life experiences and common sense to the facts and evidence as presented. For example:
a. Who started the fight? That's a pretty important question in this case. Was it the much bigger guy with the gun and the MMA training who was following the other guy? Or, was it the smaller guy with no gun or MMA training, who wanted to get back home in time to watch a basketball game?
b. Who is more likely to start a fight, someone who knows he has a gun or someone who knows he doesn't have a gun?
c. Would somebody as paranoid as George Zimmerman--remember he had a gun, a concealed carry permit, two flashlights and a cellphone on his person, and he'd gone through extensive handgun and MMA training and had claimed to believe that Trayvon might be a criminal--let himself be snuck up on by a kid? There was a wide courtyard walkway with a sidewalk and no bushes near the sidewalk. This was why Zimmerman had to fabricate the story about looking for a street name for a street he'd been walking down for years.
The natural inferences based on the evidence are there for the jury, although they may have to do some sifting. (And that's on top of the direct evidence). Now, what about the natural inferences based on the evidence dealing with Zimmerman's justification defense?
a. Zimmerman's story is ludicrous in many ways, not the least of which is the fact that he suffered only superficial injuries and yet felt the need to kill Trayvon. Then, there's the fact that the injuries don't match Zimmerman's statements about what happened. The three-armed Trayvon, the continuous screaming unaccounted for in his time line, the claim that Trayvon went for a black gun and black holster hidden behind Zimmerman at night and on and on.
b. The jury can naturally infer, based on the evidence, that Zimmerman's claims are unbelievable, and, therefore, so is his defense.
So, that leaves us with evidence and the reasonable inferences drawn from evidence to show that Zimmerman initially provoked the incident, and after that, his self-defense claim falls apart from sheer incongruity at every turn.
Now, I don't make a living betting on the outcome of jury trials, and I won't bet on this one. I do hope the prosecution puts forth a story about what happened in the rebuttal.
A Random Observation and Question:
The name "South Texas College of Law" is almost half true. It is in Texas, and I guess it's "South," although you still have to drive 357.3 miles from Houston to Brownsville. (Sorry, some good-natured fun-poking. From what little I saw, the Judge did fine.)
I caught less than two hours of the prosecutor's closing, and I didn't hear him get into the 90 degree angle of the bullet trajectory. All of this raises the impossibilities of (a) Trayvon seeing the gun, (b) Trayvon supposedly touching the gun without leaving any forensic evidence, (c) Zimmerman being able to pull out his own gun wedged under his body while a person was "mounted" on him, (d) Zimmerman being able to wedge the gun in between his own ample-sized body and Trayvon to get off a shot that would follow a 90-degree trajectory, and (e) no mention of Zimmerman providing a warning such as, "Stop or I'll shoot," although Zimmerman did provide classic movie dialogue for the rest of his so-called justification defense (i.e. "You got me" or something like that). So, what was the prosecutor's argument in that regard?