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Friday, May 18, 2012

The New Info re: Trayvon Martin and George Zimmerman

The latest batch of information shared by the government with the public and the defense continues to bode poorly for the prosecution, at least when held to a BRD standard for a murder charge.

1. The Times has posted a few audiotapes of interviews with witnesses of the encounter between Martin and Zimmerman. I'm on a deadline with something else, so I haven't gone through all of them yet, but at least one of them provides information to the effect that it corroborates Zimmerman's account that he was getting the stuffing beaten out of him by Martin prior to the shooting, and that Zimmerman had cried for help.

2. The article accompanying the audiotapes also reports that Martin's father told police that it was not Trayvon Martin who cried out for help on the 911 tapes. (Zimmerman's father said it was Zimmerman's voice, whereas Martin's mother had earlier said it was Martin). Audio specialists with the FBI apparently couldn't tell.

3. Traces of pot were found in Martin's body at the time of his death.

4. There's a picture of Zimmerman's bloodied head up also, which again, corroborates the story Zimmerman told and the report of the witness who saw Zimmerman getting beaten on the pavement.

None of this is to deny that there could still be a plausible case made for imperfect self-defense leading to something like a manslaughter conviction. (Indeed, one of the investigators had initially prepared a probable cause for manslaughter recommendation.) But taken together, these various pieces of information make it much less likely that a jury will find Zimmerman guilty of murder based on a beyond a reasonable doubt standard. Interestingly, if you read the NYT piece carefully, you won't really see any discussion of specific evidence bolstering the government's case discussed. (That's not to say it's not there in the discovery; just that the reporter had omitted to discuss anything).

A friend of mine who's a former prosecutor here in Florida, and now is a local defense lawyer, told me he thought that no charge would stick against Zimmerman. If the NYT piece is roughly accurate regarding the contents of the new information, I suspect the release of the new information won't do much to change his mind.

P.S. I just checked out the Orlando Sentinel coverage, which is a bit more extensive, and which again bodes poorly for the government.

5. The autopsy report reveals that the gun was fired touching Martin's clothes. Indeed, "Trayvon's autopsy showed that he died of a shot to the heart and that the gun was so close, it had left gunpowder burns on his skin." This too is consistent with Zimmerman's account. If in fact the gun was shot from further away, it would possibly cast doubt on the nature of the encounter.

6. There is no witness testimony or other evidence regarding who started the altercation.

 

 

Posted by Dan Markel on May 18, 2012 at 12:37 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink

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Comments

Just to clarify something, I don't think that the trace amount of marijuana in Martin's system is relevant. The amount found is consistent with Martin having smoked in the past, but is so low that does not support the hypothesis that he was intoxicated on the night in question. It is therefore unlikely it is relevant to Martin's behavior on the night in question (unless you argue that willingness to smoke marijuana in the past demonstrates a predisposition to violence, but there is no evidence of this).

http://healthland.time.com/2012/05/18/traces-of-marijuana-found-in-trayvon-martins-body-does-it-matter-2/

Posted by: Margo Kaplan | May 18, 2012 12:15:44 PM

Hi Margo,
Thanks for the note. The stories I read weren't as clear as the one you linked to about the amount of pot in his system and what those traces signify. That said, assuming the Time piece is correct, I'm not sure it will matter (that is, I'm not sure the prosecution will be able to avoid that evidence from affecting some jurors). In other words, I am not arguing that the pot in Martin's system is actually relevant one way or the other, merely that I think that so long as the jury hears about it (and maybe it will be excluded under the state equivalents of 401 or 403?), some of them will view it as somehow relevant. For even if Martin was not high on the night in question, they might harbor views that a "pothead" is likely to have contributed to the tragic events of that evening. Anyway, thanks for the link!

Posted by: Dan Markel | May 18, 2012 2:28:59 PM

Hi Dan,
Glad the link was useful. I understand what you are saying, and I agree it's possible that, even if the information isn't relevant, it might be bad for the prosecution nonetheless if the jurors hear about it one way or another and misinterpret it or assign it unwarranted weight. But I wanted to reduce the chance that the post would inadvertently contribute to misconceptions about this new evidence and its relevance.
Thanks!

Posted by: Margo Kaplan | May 18, 2012 3:18:23 PM

To me this looks like exactly the kind of thing Rule 404 is designed to exclude. As a judge I'd want to see some pretty good literature on increased aggression and small amounts of THC before a jury got a whiff of Trayvon's pot.

Posted by: Jim von der Heydt | May 18, 2012 8:56:56 PM

1. I think that there's a pretty good chance that the THC evidence will be deemed inadmissible under Rule 401 and/or Rule 403:

http://lawprofessors.typepad.com/evidenceprof/2012/05/according-to-several-sources-the-medical-examiners-report-showed-traces-of-thc-the-active-ingredient-in-marijuana-in.html

2. Jim, if the defense is trying to use the evidence to prove that the marijuana had an impact on the way that Martin acted at the time of the encounter with Zimmerman, it wouldn't be propensity character evidence covered by Rule 404. It would be evidence of Martin's condition at the time of the encounter. If, though, as Margo's link indicates, the THC level was consistent with *past* drug use, there could be a Rule 404 issue.

Posted by: Colin Miller | May 18, 2012 10:12:17 PM

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