The Unmeritorious Prosecution of George
Zimmerman
Analysis by Marty Hayes, J.D.
Note: We deviate from the format of our normal
lead article to give Network President Marty Hayes, J.D. the leeway to analyze
the recent criminal prosecution of George Zimmerman, as viewed through Hayes’
experience as a former police officer, expert witness and self-defense
instructor. The reader will recognize that Hayes’ opinion permeates this
article, as removing his observations would reduce the lessons armed citizens
should learn from this incident. —Editor
As I
absorb the details of the jury trial and acquittal of George Zimmerman, several
issues are foremost in my mind. These I would like to share with our members,
and unless a new Federal charge is brought against Zimmerman (which I doubt) or
a civil suit against him from Trayvon Martin’s estate (more likely), this will
conclude our discussion of the Zimmerman case. Additionally, this review of the
case is drawn from the court proceedings and other evidence that may not have
made it into court.
Pre-Confrontation
Most trial
watchers and the media have finally acknowledged that Zimmerman did not ignore
or disregard the dispatcher’s orders not to follow Trayvon Martin. Media
commentators and other ignorant individuals persist in calling Zimmerman a
“night watchman,” though. This is pure, unadulterated crap. The term “night
watchman” conjures up images of a guy walking around at night, flashlight in
one hand and billy club in the other, keeping an eye on things. This was not
George Zimmerman, nor does it describe the role Block Watch plays in our
neighborhoods.
Recently the media-driven narrative has shifted from asking,
“Why did Zimmerman follow Martin?” to “Why didn’t Zimmerman confront Martin,
identify himself as a Block Watch representative, and question Martin’s
actions?” This is not the role of the Block Watch program, either. The purpose
of neighborhood watch is to observe and report suspicious activity and be a
good partner to law enforcement.
The Retreat at Twin Lakes neighborhood in Sanford, Florida had
been beleaguered by burglaries and at least one home invasion robbery. In
response to these crimes, the neighborhood invited the Sanford Police to help
them form a Block Watch program. Zimmerman was later appointed by his neighbors
to act as Block Watch captain, also referred to as a Block Watch contact. This
took place several months before the incident we’re discussing, and during the
time leading up to February 26, 2012 Zimmerman had called the police non-emergency
line at least five times to report suspicious persons, in addition to the call
he made to the non-emergency line the night of the shooting, which we have all
heard.
Many, many people have called George Zimmerman an idiot for
getting out of his car. I fully disagree. He was perhaps guilty of being naïve
and uneducated about carrying a gun for self defense (so much for the efficacy
of mandatory training for obtaining a concealed carry license), but I cannot
see a single thing he did wrong. Let me repeat. HE DID NOTHING WRONG! Are we
becoming such a nation of wimps, that a full-grown man cannot even keep an eye
on a suspicious person in his neighborhood?
He was
part of the neighborhood watch program, for God’s sake! Frankly, I think I
would like George as a neighbor. He seems like a stand-up guy. For those who
ask why he got out of his car to keep an eye on a suspicious character in his
neighborhood, I say, “grow a set.”
As we
know, Zimmerman got out of his car to keep an eye on Martin after Martin
circled Zimmerman’s car, all the while having his hand in his waistband,
according to Zimmerman. After Martin started running from Zimmerman,
Zimmerman apparently tried to keep an eye on him but lost him in the
darkness. (Remember, Martin was wearing dark clothing). The dispatcher,
hearing the wind blow against the phone and Zimmerman breathing heavily,
realized that Zimmerman was on the move and asked, “Are you following him?”
He then told Zimmerman, “You don’t need to do that,” so Zimmerman turned back
towards his vehicle.
Zimmerman
didn’t know his exact location, unable to see any street signs or house
numbers, so he told the dispatcher to have the arriving cops call him and
they would then rendezvous. With that call disconnected, the next several
minutes went undocumented, except for Zimmerman’s statement after the
shooting. We do know, though, that Martin did not go back to his father’s
home (which was only a hundred yards or so away) but instead, hung around in
the dark, talking on his phone to Rachel Jeantel.
The Confrontation
According
to Jeantel, she listened to some of the initial discussion between Zimmerman
and Martin, then heard a noise that sounded like a thud, and what she calls
the sound of “wet grass.”
She also
relates hearing Martin tell Zimmerman to “get off, get off.” I do not find
this credible because it is at odds with any other information from any of
the eyewitnesses, nor is there any forensic evidence that Zimmerman was on
top of Martin at any time. Zimmerman had grass on his back, but Martin did
not. Martin had wet knees, but Zimmerman did not. Zimmerman had injuries to
his face, but Martin did not. Martin had bruising to at least one hand (his
left) but there was no bruising on Zimmerman’s hands. Two bleeding
lacerations on the back of Zimmerman’s head coincide with his report that his
head was being beat against the concrete sidewalk, and of course, Zimmerman’s
nose was broken. It seems more likely that what Jeantel heard was Zimmerman
telling Martin to “get off, get off” right before the beating and screaming
started. Indeed, the best eyewitness, John Good, testified that he saw Martin
on top of Zimmerman throwing punches down on Zimmerman.
The
screaming lasted about 30 seconds. The Martin family identified Martin’s
voice as the one heard screaming when a neighbor called 911, and the
Zimmerman family identified Zimmerman as the man screaming for help, as did
others. Jeantel identified the voice as Martin’s. What was supposedly being
done to Martin to make him scream for help for 30 seconds? Perhaps it was
when Zimmerman attacked Martin’s fists with his head. Commentators made much
about why the screaming stopped immediately after the gunshot. Well, gee,
maybe it was because Martin stopped hitting Zimmerman.
Without
question, Zimmerman shot Martin after being beaten. There is no evidence that
Martin suffered any wounds except for the gunshot that killed him.
[Continued...]
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Articles
from the Journal
·
The
evidence, as brought forth by expert witness and pathologist Dr. Vincent Di
Maio conclusively showed that Martin’s hoodie sweatshirt was in contact with
the muzzle of the Kel-Tec 9mm, but that the muzzle of the gun was a few inches
away from Martin’s chest when the shot was fired. This can lead to only one
conclusion: that Martin was above Zimmerman when the shot was fired. This is
the narrative the jury heard, one born out by the facts, and often in
Zimmerman’s own words from earlier recordings. This goes against the whole
prosecution narrative that Zimmerman pursued Martin and when he caught up to
him, he shot him in cold blood. The prosecution narrative was chock full of
lies, deceit and emotion. One only had to watch the prosecution’s opening or
closing arguments to see that the prosecution did not have the facts on their
side.
·
The
Prosecution
·
I watched
about two-thirds of the trial and recognized a desperate attempt by the State
of Florida to convince six jurors that George Zimmerman criminally used deadly
force against Trayvon Martin. Because the facts were not on the prosecution’s
side, they needed to twist the facts, and bring up witnesses who either lied or
massaged their testimony to lend credence to the narrative that Zimmerman
hunted down and executed Martin.
·
I was
reminded of Massad Ayoob’s theory that juries are not comprised of twelve
people too stupid to get out of jury duty, but rather are made up of twelve
separate and functioning bullshit detectors. Though numbering only six in the
Sanford, FL courtroom, those jurors saw through the web of lies and emotion to
understand the facts as they truly were.
·
I have often seen
the same dynamic played out in other cases when other juries saw through the
prosecutions’ lies and deceit.
·
I was enthralled
watching defense attorneys Mark O’Mara and Don West tear apart the
prosecution’s case point by point. A lot of commentary by the talking heads
wondered if the defense needed to put on a case at all, seeming to believe that
the prosecution failed to prove the elements of second-degree murder. Of
course, O’Mara and West understood that the judge in this case could likely
give a manslaughter instruction, too, and thus they did need to put on a
defense. And so they did.
·
The defense
introduced solid witnesses, like the Federal Air Marshal who was Zimmerman’s
friend. They brought in expert testimony by Dr. Vincent Di Maio, who taught the
jury about the facts of the altercation.
·
And then there were
Zimmerman’s own words, clearly heard, presented courtesy of the state of
Florida, although Zimmerman himself did not testify in his own trial. In an
attempt to prove that Zimmerman was criminally liable for the death of Martin,
the state chose to play for the jury the police recording made the night of the
incident, then played the recording of the next day’s scene walk through with
Zimmerman and Detective Serino, and then, to top it all off, they played Sean
Hannity’s interview with George Zimmerman. The State hoped to highlight some
minor inconsistencies in these various statements to prove that Zimmerman was
being deceitful and thus was guilty of murder.
·
We here
at the Network have long understood and promoted the argument that one should
not give detailed statements to the police immediately after the incident. In
this case, it worked out in favor of Zimmerman, but this is the exception that
proves the rule. I am really fascinated that these statements were
theoretically not admissible in court because they are considered hearsay
statements. The defense could have objected to bringing the videotapes into the
trial.
·
What
would have been the likely outcome? Without the video statements, the jury
would not have known the story as told by George Zimmerman. As a result, he
would probably have needed to take the stand in his defense, so the jury could
understand his side of the story. But, if Zimmerman had testified, the State
would have been able to present the video tapes as an exception to the hearsay
rule, stating that the video tapes were rebuttal evidence to Zimmerman’s
courtroom testimony. Or, perhaps the tapes would have been admitted over
objection anyway, as they could have been offered as exception to the hearsay
rule by virtue of being statements against interest. Were they really
statements against interest? I am not sure, but given the nature of Judge Debra
Nelson and her obvious bias against the defense, I suspect she likely would
have allowed them in. In any event, the tapes were golden for Zimmerman,
because it allowed him the luxury of not needing to testify, but yet to have
his story told in his own words, without being cross-examined.
·
The
Verdict
·
As we all
know, the jury deliberated for about 16 hours and came back with a verdict of
not guilty.
·
I am frankly amazed
that this jury seemed to be unaffected by what they heard about the case ahead
of time. I believe they would have convicted Zimmerman of either manslaughter
or murder if given half a chance, supported by at least a few facts to bolster
the prosecutor’s theory of the case. One juror has publicly stated that she
wanted to convict George Zimmerman but because of strict reading of the law,
she had to vote for acquittal.
·
What might have been
the outcome if the State could have shown even a hint of malice? For example,
what if there had been evidence that Zimmerman had a history of racism, if he
had tweeted or otherwise left a digital trail of racist comments? At that
point, the prosecution would have had their hook, and likely convicted
Zimmerman of murder.
·
Lessons Learned
·
So, what lessons can
members of the Armed Citizens’ Legal Defense Network take away from this case?
·
We can start by
understanding that there are many people in this country who hate armed
citizens. They hate everything we stand for. They will jump on any excuse to
eliminate our ability to own and use guns in self defense. Attacking the armed
citizen as the State of Florida attacked George Zimmerman is just one example.
I saw it several years ago in Arizona in the Larry Hickey case, and I saw it
again earlier this year in Pennsylvania, in political prosecutions of innocent
men who did nothing more than defend themselves in a reasonable belief they
were in danger of dying or suffering great bodily injury. And of course, the
prosecution of George Zimmerman was political.
It is not
the way it should be, but it is reality. Accept this reality and take
legitimate steps to counter it. “What steps,” you ask?
Well,
first we can live our lives squeaky clean, free of any hint of racism, gender
bashing, or any other type of activity that could be brought up in court to
show hatred against any group of persons. Face it, if you are a white male
and in self defense kill someone who is a member of a minority class
typically protected by the liberal left, AND you live in a jurisdiction that has
an anti-gun prosecutor, your case of self defense will very likely become
headline news, if not nationally, at least locally. It is my understanding
that early on in the Zimmerman case, the Martin family hired a public
relations firm to bombard the news media with pro-Trayvon information and
anti-Zimmerman information. Once Jesse Jackson, Al Sharpton and others got
involved, the script had been written.
If YOU
are the next George Zimmerman, and there are hints of racism or other
prejudice in your history, then you might not come out of the trial as well
as Zimmerman did. Besides, clearing your head of prejudicial thoughts is good
for the soul.
Secondly,
you need to make sure your training resumé is current and up to date. When
was the last time you took a class from a well-respected firearms instructor,
one who understands the legal system and who would be an asset to you in
court?
First,
we go to class to learn how to shoot and to learn the legal issues
surrounding use of deadly force in self defense.
But, are
we going back to train once a year or so? If you don’t keep training, you
will lose a step or two. Plus, it would be handy to have your latest
instructor on the witness stand to explain how your actions were consistent
with the information he taught you in that class last year. Zimmerman could
have used that kind of material witness.
Having
had recent and current training in deadly force law might just keep you out
of court. It did just that for a student of mine several years ago. The quick
story is that a student had pulled a gun and threated a couple others who
were threatening him with pool cues. Later, when the student was charged with
assault, his training records from my shooting school went a long way towards
convincing the prosecutor that a plea bargain was a better option than
prosecution. I was prepared to testify on his behalf and the prosecutor knew
this. I saw the same outcome for another student of mine a couple years
later. Of course, the Network DVDs are a big help, but there is nothing like
a local, upstanding citizen on the stand looking their neighbors (the jury)
in the eye and telling them what they need to hear.
Third,
inspect your hardware, and make sure it doesn’t offend. Would a 75-year-old
great grandmother who has never touched a gun in her life be offended by the
appearance of your gun?
I once
testified in a case in which the defendant had nickel plated his Taurus
PT-40, gold plated the trigger and had his name inscribed on the side of the
gun.
[Continued...]
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Articles
from the Journal
Perhaps that was not the best move. Now, it
is all the rage to have cutesy little designs inscribed on the back plate of
your carry Glock. I have also seen the skull and cross bones depicted more
than once, and the small inscription “smile and wait for the flash” engraved
on the exposed barrel crown of your pistol is an invitation to be prosecuted.
   Next comes the decades-old advice to never alter your carry
gun to reduce trigger pull weight below five pounds or deactivate a safety on
the gun. In the 1980s and 1990s, a lot of people pinned the grip safeties on
1911s because their shooting grip would not depress it. Browning put a
magazine disconnect safety in the Hi-Power pistol design, but many people
remove it.
A long time ago, I bought a Walther PPK from
a student who received a gun collection in a divorce. On the Walter’s right
side grip panel was glued a CIA logo. I have long since parted with the
Walther, but kept the “strange ranger” grip as a curiosity, though I would
never use it. No wonder my student divorced the guy!
Just last night I reviewed a trial
transcript where a state crime lab firearms examiner spent a good 15 minutes
on the stand discussing the safety features and trigger weight of a Glock
pistol. If she had found any anomalies, then these would have become a large
part of the case. As the gun was stock, she was not able to raise any issues.
If George Zimmerman’s Kel-Tec 9mm had been somehow modified, I can only
imagine what would have been said in trial!
Keep your guns stock, and if you do modify a
gun, do it for the right reasons, like a grip reduction to make the gun fit
your hand better or install better sights. These upgrades can be explained
easily enough, but that is not true for some of the others previously mentioned.
The fourth lesson to be learned also has to
do with hardware, but the expendable kind. Ammunition selection is important
in a self-defense case. By the close of the year, I will have testified in
four cases where the specific ammunition brand was a talking point of the
case.
These inquiries delved primarily into
gunshot residue and powder stippling (for close range gun shots) and recoil
dynamics in two of the four. Without being able to obtain the same type of
ammunition for the testing procedures (done by myself in three of the four
cases, and done by the crime lab in the fourth case), the facts would not
have been as clear for the juries.
In the Zimmerman case, two forensic
pathologists opined on gunshot residue and stippling. Much can be determined
about distance and orientation by the stippling pattern. That is why the
ammunition you use should be easy to obtain, either over the counter or from
the manufacturer.
[Continued...]
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It should
NOT be a rare, exotic design, but instead a traditional hollow point. And, the
icing on the cake would be if it was the same caliber and type as your local
police officers carry.
Point number five
has to do with choosing attorneys and being able to pay for them. Zimmerman
ended up with two fine defense attorneys, both who outclassed the prosecution
in a big way. I liked watching O’Mara and West because they complemented each
other. While I don’t know their background in self-defense law, they seemed
pretty up to speed on what they needed to accomplish. Perhaps the seven
educational DVDs from the Network that I sent them early on helped in some
small way. I was also very interested in watching the fund-raising efforts, as
seen athttp://www.gzdefensefund.com/donate/index.php/how-has-money-been-spent.
If you
don’t want to take the time to read through that link’s online reporting,
understand that according to the Zimmerman fund website, he has raised and
spent over $400,000 for his defense, which includes $95,000 for the bail
bondsman, money he will not get back.
That is likely a record for a self-defense case, and one that I
sincerely hope we never try to break. But, the expenses are now fact, so let’s
address the issue of legal costs and the Network Legal Defense Fund.
The Network is now closing in on having $300,000 in the fund,
and we should be there in another month or two. Obviously, a case like George
Zimmerman’s would hit our fund hard. Recognizing this, while we watched the
fund grow over the past several years, we have put into place procedures to
administer the money. The first check point is the Advisory Board, consisting
of Massad Ayoob, Dennis Tueller, Tom Givens, John Farnam, James Fleming and
Manny Kapelsohn, along with Vincent Shuck and me as ex-officio members. The
advisory board will ultimately decide how the fund is disbursed, but having
said that, as President of the Network, I would scream very loudly and stomp my
feet if they decided to spend over half the fund on any single case.
If Zimmerman had been a Network member, he would likely have
received $125,000 at the most. This would have given him a pretty good start,
but obviously additional fundraising would have still been needed. That is
where the power of the Network could and likely would come into play. There is
nothing stopping each and every member of the Armed Citizens’ Legal Defense
Network (all 7,500 of you, at this writing) from kicking in money for defense
of any individual member.
If George had been a member, and we needed to raise additional
money, I would have asked the membership to kick in another $50 or so per
member.
Assuming
we all participated, thinking, “There but for the grace of God, go I,” we
could have raised an additional $350,000 pretty darn quickly. Plus, we would
have likely raised additional money from outside Network membership using
publicity as the Zimmerman defense team successfully did with
www.gzdefensefund.com. So, please understand, folks, that the likelihood of a
member needing serious financial assistance and not having it available is
fairly remote. The power of the Network first and foremost lies in the
strength of our members and the ability for us to go directly to the
membership for more help, if needed.
Occasionally
we receive emails questioning the ethics of our Legal Defense Fund
disbursement oversight, implying that it is set up as a means for the
advisory board to simply refuse to help any member. It is insulting, but
apparently these folks think we intend to keep the money for ourselves. It
pains me to even address this issue, as the people we have recruited for the
board are the highest caliber of people I know. When they are called to make
Legal Defense Fund decisions, I have full trust that they will do their job
correctly and efficiently and with the utmost integrity. Since up to now,
members have only needed us to pay deposits against attorney fees, we have
yet to need to go to the Advisory Board with a funding request, but I suspect
that day is coming. Finally, although the Legal Defense Fund is technically a
financial asset of the Network (since it allows us to provide the financial
assistance part of the member benefits), we view the fund as a separate asset
kept in separate bank accounts, not a cash cow for the Network.
Watching
the Zimmerman case has brought up a plethora of attorney selection questions
and requests for related advice.
Please
do not fret that you do not have Mark O’Mara’s card in your wallet. Remember
that for the first couple of months after the shooting, Zimmerman either had
no attorney or had another attorney involved in the case. It is perfectly
acceptable and commonplace to switch attorneys early in a case as Zimmerman
did. If a member ended up embroiled in such a high profile case, the Network
would likely take the steps to recruit a “dream team” including lawyers
who’ve successfully defended similar cases, even if it means bringing them in
from out of state, if necessary.
Conclusion
The
astute reader will have, by now, realized that the lessons we took away from
the Zimmerman case by and large centered on the normal issues in any
self-defense case. We have discussed most of these issues before and it is
not lost on me, that despite the extreme notoriety and public discussion
about race and self defense, when it all came down to it, George Zimmerman’s
case was just another self-defense case. Except for the publicity, it was no
different than most any other self-defense case out there.
[End
of Article.
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